Summary Calendar UNITED STATES OF AMERICA v. Roberto Diaz-Rivera

* Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
June 1, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-41371
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
ROBERTO DIAZ-RIVERA
Defendant - Appellant
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:05-CR-377-ALL
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Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Roberto Diaz-Rivera (Diaz) was convicted by a jury of
possession with intent to distribute approximately 5,763
kilograms of marijuana. He was sentenced to an 190-month term of
imprisonment and to a five-year period of supervised release.
Diaz gave timely notice of his appeal.
Diaz was arrested after marijuana was discovered in the
trailer of the tractor/trailer he was driving through the Border
Patrol checkpoint, at Falfurrias, Texas. Diaz contends that,
because the marijuana was hidden in the trailer, the district

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court should have instructed the jury that knowing possession of
the tractor/trailer was insufficient to prove that he knew that
the trailer contained marijuana.
In exercising its “broad discretion in fashioning the
charge,” the district court must determine whether the charge is
“legally accurate and factually supportable; the court may not
instruct the jury with a charge that lacks an evidentiary
predicate.” United States v. Moreno, 185 F.3d 465, 476 (5th Cir.
1999). In this case, a constructive-possession instruction was
supported by the facts because the marijuana was concealed from
view and did not emit a noticeable odor. See PATTERN CRIM. JURY
INSTR. 5TH CIR. 1.31 (West 2001) (Note); United States v.
Pennington, 20 F.3d 593, 598 (5th Cir. 1994).
Because the Government introduced substantial evidence
showing Diaz’s guilty knowledge, however, any error on the part
of the district court in refusing to instruct the jury that it
could not find that Diaz knew of the drugs based on his control
of the vehicle alone was harmless. See United States v.
Terrazas-Carrasco, 861 F.2d 93, 95 (5th Cir. 1988). Diaz’s
nervousness, inconsistent statements, and implausible stories
provided ample additional evidence of his guilty knowledge. See
Pennington, 20 F.3d at 598. The judgment is AFFIRMED.

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