     Case: 17-40895   Document: 00514704588        Page: 1   Date Filed: 10/31/2018




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                    No. 17-40895              United States Court of Appeals
                                                                       Fifth Circuit

                                                                     FILED
                                                              October 31, 2018
UNITED STATES OF AMERICA,
                                                                Lyle W. Cayce
             Plaintiff - Appellee                                    Clerk


v.

EFRAIN GONZALEZ,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Eastern District of Texas


Before REAVLEY, ELROD, HIGGINSON, Circuit Judges.
PER CURIAM:
      Efrain Gonzalez was convicted by a jury for conspiracy to distribute more
than five kilograms of cocaine and sentenced to 136-months imprisonment. On
appeal, Gonzalez challenges the sufficiency of the evidence for both his
involvement in the conspiracy and the quantity of cocaine attributable to him,
as well as the sentence imposed. We AFFIRM the district court on all issues.
                                         I.
      Gonzalez, a citizen of El Salvador illegally in the United States, was
indicted pursuant to a Drug Enforcement Agency (DEA) investigation into a
large-scale cocaine distribution network responsible for moving cocaine
between Mexico and the United States.
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      As part of that investigation, the DEA determined that an individual
named Laura Perez-Tinajero was one of the network’s key distributers, and it
established camera surveillance on her home in Dallas. An individual named
Wilfredo Reyes, from New York, was a regular customer of Perez-Tinajero, who
on multiple occasions drove a tractor-trailer to Perez-Tinajero’s home in Dallas
to purchase cocaine, which he then transported back to New York for resale.
In April 2015, the cameras emplaced by the DEA outside Perez-Tinajero’s
home filmed Gonzalez, also from New York, accompanying Reyes into one such
meeting. After Reyes and Gonzalez departed the home, a traffic stop by local
police discovered approximately three kilograms of cocaine hidden in a
concealed compartment of the tractor-trailer, and both men were arrested. In
total, eighteen individuals were indicted in connection with the investigation,
though only Gonzalez and one other individual went to trial.
      At Gonzalez’s trial, Perez-Tinajero testified that Gonzalez was involved
in the transaction to purchase cocaine at her residence, and that he had urged
her to “front” (i.e. loan on consignment) Reyes and himself the third kilogram
of cocaine—in addition to the two kilograms that they purchased with $56,000
in cash. The government also produced evidence that Perez-Tinjero’s hub of
the conspiracy in Dallas was responsible for distributing at least 450 kilograms
of cocaine. Gonzalez’s motion for a judgment of acquittal was denied. The jury
found beyond a reasonable doubt that Gonzalez was guilty of conspiracy to
possess cocaine with the intent to distribute. The jury also found beyond a
reasonable doubt that Gonzalez was directly involved with, or should
reasonably have foreseen that the conspiracy involved, five or more kilograms
of cocaine.   The mandatory minimum for a crime involving five or more
kilograms of cocaine is 10-years imprisonment, and the Sentencing Guidelines
range for Gonzalez was 121 to 151 months. 21 U.S.C. § 841(b)(1)(A)(ii). The


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                                  No. 17-40895
district court sentenced him to 136-months imprisonment and five years of
supervised release. Gonzalez timely appeals.
                                        II.
      “[A] defendant seeking reversal on the basis of insufficient evidence
swims upstream.” United States v. Mulderig, 120 F.3d 534, 546 (5th Cir. 1997).
When a criminal appellant has previously moved for a judgment of acquittal,
we review challenges to the sufficiency of evidence de novo, but view the
evidence “in the light most favorable to the verdict[.]” United States v. Hale,
685 F.3d 522, 543 (5th Cir. 2012).        A conviction may not rest on “mere
suspicion, speculation, or conjecture, or on an overly attenuated piling of
inference on inference.” United States v. Moreland, 665 F.3d 137, 149 (5th Cir.
2011) (quoting United States v. Rojas Alvarez, 451 F.3d 320, 333 (5th Cir.
2006)). However, a conviction will be affirmed if “any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979).
      We review a district court’s sentencing decision to ensure there was “no
significant procedural error, such as failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as mandatory,
failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based
on clearly erroneous facts, or failing to adequately explain the chosen
sentence[.]” Gall v. United States, 552 U.S. 38, 51 (2007). The district court’s
factual finding of a drug quantity relevant to Guidelines sentencing is reviewed
for clear error. United States v. Kelley, 140 F.3d 596, 609 (5th Cir. 1998). The
substantive reasonableness of the sentence imposed by the district court is
reviewed under an abuse-of-discretion standard, and any sentence within the
Guidelines range is presumed to be reasonable. United States v. Mondragon-
Santiago, 564 F.3d 357, 360 (5th Cir. 2009).


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                                            III.
                                            A.
       Gonzalez argues that the evidence introduced at trial was insufficient for
a jury to convict him of participating in a conspiracy to distribute cocaine. To
sustain a conviction for conspiracy to distribute drugs, the government must
prove beyond a reasonable doubt that: “(1) an agreement existed between two
or more persons to violate federal narcotics law, (2) the defendant knew of the
existence of the agreement, and (3) the defendant voluntarily participated in
the conspiracy.” United States v. Ochoa, 667 F.3d 643, 648 (5th Cir. 2012).
“Mere presence at the scene of a crime or close association with a co-conspirator
will not support an inference of participation in a conspiracy. . . . However, an
agreement may be inferred from a concert of action . . . [and] the development
and collocation of circumstances.” United States v. Tenorio, 360 F.3d 491, 495
(5th Cir. 2004) (citations and alterations omitted). Additionally, the defendant
need only enter into an agreement with one other person and “need not know
each of the other conspirators or each part of the unlawful scheme.” United
States v. Bolts, 558 F.2d 316, 325 (5th Cir. 1977).
       Gonzalez raises several arguments as to why the evidence was
insufficient for him to be convicted of participating in the conspiracy. None of
them have merit. First, Gonzalez asserts that he lacked the background of
someone who would conspire to distribute cocaine. 1 This argument is entirely
irrelevant as to the sufficiency of the evidence on which he was convicted.



       1 Although the outcome of this case is not dependent on the appellant’s immigration
status, the assistant public defender appears to have materially misrepresented the record
in this portion of Gonzalez’s brief. The brief states: “As his presentence report indicates,
[Gonzalez] was in the United States on a work permit[.]” However, this statement is derived
from an interview wherein Gonzalez self-reported his personal data, and which the
presentence report indicates is unverified. In actuality, the presentence report explicitly
states that Gonzalez is an illegal alien. Counsel is cautioned regarding the importance of
accurately representing the record.
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                                 No. 17-40895
Second, Gonzalez asserts that many of the co-conspirators testified that they
did not know him. That argument lacks merit, given that all members of a
conspiracy are not required to know every other member for a conspiracy to
exist, and that it is not surprising that some members in a large conspiracy
would not know each other. See Bolts, 558 F.2d at 325. And third, Gonzalez
asserts that Perez-Tinajero’s testimony was biased because she had pleaded
guilty to the conspiracy and was a cooperating witness. That argument also
lacks merit, as witness credibility is the province of the jury, and a
conspirator’s guilty verdict can be based on the testimony of co-conspirators
even if they were offered leniency in exchange for their testimony. United
States v. Bermea, 30 F.3d 1539, 1552 (5th Cir. 1994).
      There was ample evidence introduced at trial by which a jury could find,
beyond a reasonable doubt, that Gonzalez was involved in a conspiracy to
distribute cocaine. That evidence included his presence in a conspirator’s
vehicle when it contained multiple kilograms of cocaine hidden in a secret
compartment; camera footage of him entering a home used by the conspirators
to distribute the cocaine; and testimony by co-conspirators that he was not only
involved in a cocaine transaction, but that he urged a distributor to “front”
himself and another conspirator some of the drug. See also United States v.
Posada-Rios, 158 F.3d 832, 860 (5th Cir. 1998) (noting that acquiring drugs on
consignment (i.e. having them “fronted”) is “strong evidence” of membership in
a conspiracy because it indicates “an ongoing, mutually dependent
relationship”). The evidence was sufficient for a rational jury to find him
guilty, and Gonzalez’s arguments to the contrary border on frivolous.
                                      B.
      Gonzalez next asserts that even if he was involved in a conspiracy, the
evidence was insufficient to find that he was involved with, or should have
reasonably foreseen that he was involved with, a conspiracy to distribute five
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                                 No. 17-40895
or more kilograms of cocaine. A conviction involving five or more kilograms of
cocaine entails a ten-year mandatory minimum. 21 U.S.C. § 841(b)(1)(A)(ii).
For the purpose of sentencing determinations, “a defendant will not necessarily
be held responsible for the full amount of drugs involved in the conspiracy, but
rather only those amounts of drugs that he knew or reasonably could have
known or believed were involved in the conspiracy, considering the co-
conspirator’s role in the conspiracy, his relationship to the other conspirators,
and any other information with sufficient indicia of reliability.” United States
v. Akins, 746 F.3d 590, 607 (5th Cir. 2014) (citations and alterations omitted).
When the sentencing court imposes a mandatory minimum, the quantity of
drugs attributable to the individual defendant must be proven beyond a
reasonable doubt. United States v. Haines, 803 F.3d 713, 740–41 (5th Cir.
2015). See also Alleyne v. United States, 570 U.S. 99, 108 (2013) (“Facts that
increase the mandatory minimum sentence . . . must be submitted to the jury
and found beyond a reasonable doubt.”); cf. United States v. Turner, 319 F.3d
716, 722–23 (5th Cir. 2003) (holding that in the context of a statutory
maximum, the government need only prove the conspiracy-wide quantity of
drugs beyond a reasonable doubt, and that the individually-attributable
quantity of drugs can be proven by a preponderance of the evidence).
      In this case, the jury was properly instructed to find the quantity of
cocaine attributable to Gonzalez beyond a reasonable doubt.           This court
therefore presumes the jury applied the reasonable doubt standard in
determining that quantity. See Charles v. Thaler, 629 F.3d 494, 503 (5th Cir.
2011) (noting that this court presumes juries follow instructions).
      Nonetheless, Gonzalez asserts that there was insufficient evidence for
the jury to determine beyond a reasonable doubt that he was directly involved
with, or could have reasonably foreseen that he was involved with, five or more
kilograms of cocaine. Gonzalez’s argument boils down to three points: (1) he
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was found with a vehicle that only had approximately three kilograms in it; (2)
none of the other co-conspirators testified that he had been involved in any
exchanges with them other than the one at Perez-Tinajero’s home in April
2015; and (3) opinions as to how the additional volume of the hidden
compartment discovered in the vehicle could have been utilized were purely
speculative.
      However, the evidence introduced at trial was sufficient for a jury to find
that he should have reasonably foreseen he was involved in a conspiracy
involving five or more kilograms of cocaine. First, he was found in possession
of approximately three kilograms of cocaine. That is not a small amount, and
this court has noted: “an individual dealing in a sizable amount of controlled
substances ordinarily would be presumed to recognize that the drug
organization with which he deals extends beyond his universe of involvement.”
United States v. Thomas, 963 F.2d 63, 65 (5th Cir. 1992). Second, he was
personally involved in acquiring that cocaine from Perez-Tinajero, a dealer
who was responsible for distributing at least 450 kilograms of cocaine. Third,
he travelled from New York to Dallas with Reyes, a regular customer of Perez-
Tinajero, who routinely transported cocaine from Texas to New York for the
purpose of resale. Fourth, the hidden compartment the pair used to transport
the cocaine was designed to carry much more than five kilograms. See also
United States v. Knight, 342 F.3d 697, 712 (7th Cir. 2003) (noting that the size
of the secret compartment in a vehicle used to transport drugs was evidence
for determining whether individual defendants could reasonably foresee the
scope of the conspiracy in which they were involved). And fifth, there was
testimony that he urged Perez-Tinajero to “front” Reyes and himself the third
kilogram. See Posada-Rios, 158 F.3d at 860 (noting that acquiring drugs on
consignment (i.e. having them “fronted”) “indicates a strong level of trust and
an ongoing, mutually dependent relationship”).
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                                  No. 17-40895
      Gonzalez’s argument that the evidence was insufficient to show that he
was not involved with five kilograms is stronger than his argument that the
evidence was insufficient to show that he was not involved in the conspiracy at
all. Nonetheless, this court does not reweigh the jury’s measurement of the
evidence, and instead “view[s] the evidence in the light most favorable to the
verdict, drawing all reasonable inferences to support the verdict.” United
States v. Delgado, 256 F.3d 264, 274 (5th Cir. 2001). Viewed in that light, the
evidence was sufficient for a rational jury to conclude, beyond a reasonable
doubt, that Gonzalez was involved in, or should have reasonably foreseen that
he was involved in, a conspiracy to distribute five or more kilograms of cocaine.
                                       C.
      Gonzalez also asserts that the district court erred in relying on the jury’s
finding of drug quantity when imposing his sentence. This argument is just
an extension of the previous one.       Because he contends that there was
insufficient evidence for the jury to find that he was involved in, or should have
reasonably foreseen that he was involved in, a conspiracy that involved five or
more kilograms of cocaine, Gonzalez asserts that the district court imposed a
sentence based on clearly erroneous facts.
      However, for the reasons already presented, we hold that there was
sufficient evidence for the jury to determine beyond a reasonable doubt that
Gonzalez should have reasonably foreseen that the conspiracy involved five or
more kilograms of cocaine. Given that the five-kilogram quantity was not
erroneous, a ten-year mandatory minimum was required and the Sentencing
Guidelines range for Gonzalez was 121–151 months. The district court’s
sentence of 136 months is within that Guidelines range, and is therefore
presumptively reasonable.
      AFFIRMED.


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