     Case: 12-40665       Document: 00512212652         Page: 1     Date Filed: 04/18/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           April 18, 2013
                                     No. 12-40665
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

FIDEL ELFEGO BOYSO-GUTIERREZ,

                                                  Defendant-Appellant


                   Appeals from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:10-CR-1066-1


Before REAVLEY, JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
       Fidel Elfego Boyso-Gutierrez appeals his conviction and sentence for
possession with the intent to distribute more than 500 grams of
methamphetamine. Boyso-Gutierrez argues that the evidence was insufficient
to support his conviction. Specifically, he contends that the Government failed
to establish that the substance tested by forensic chemist Paul Adams was the
same substance found in Boyso-Gutierrez’s bag. Therefore, he contends there
was insufficient evidence to establish that the methamphetamine weighed more

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 12-40665    Document: 00512212652     Page: 2   Date Filed: 04/18/2013

                                 No. 12-40665

than 500 grams. Boyso-Gutierrez also argues that the Government failed to
establish that he knowingly possessed the methamphetamine.
      To prove possession with intent to distribute drugs, the Government must
prove beyond a reasonable doubt: (1) knowledge, (2) possession, and (3) intent
to distribute the controlled substance. United States v. Solis, 299 F.3d 420, 446
(5th Cir. 2002). Because the statutory sentencing range was based upon the
amount of drugs, the quantity of drugs was required to be found by the jury
beyond a reasonable doubt. See § 841(b)(1)(A); United States v. Doggett, 230 F.3d
160, 164-65 (5th Cir. 2000).
      Because Boyso-Gutierrez did challenge the amount of the drugs when
moving for a directed verdict, we limit review of the issue to the consideration
of whether “the record is devoid of evidence pointing to guilt.” United States v.
Herrera, 313 F.3d 882, 884-85 (5th Cir. 2002) (internal quotation marks and
citation omitted). In determining whether the record is devoid of evidence
pointing to guilt, the evidence is viewed “in the light most favorable to the
[G]overnment, giving the [G]overnment the benefit of all reasonable inferences
and credibility choices.” United States v. Galvan, 949 F.2d 777, 783 (5th Cir.
1991) (internal quotation marks and citation omitted).
      The testimony of Agent Osburn shows that the methamphetamine was
sealed and tagged. Agent Abbott testified that the methamphetamine was sent
to the lab. Adams testified that, at the lab, he verified the seal was intact and
that the paperwork matched prior to the analysis of the evidence. Therefore, the
jury could reasonably infer from these testimonies that the methamphetamine
tested by Adams was the same methamphetamine seized from Boyso-Gutierrez’s
bag that had been sealed, marked, and delivered to the lab. Adams’s testimony
that the weight of the methamphetamine was 3878 grams establishes that the
drug weighed more than 500 grams. Accordingly, the record is not devoid of
evidence that the methamphetamine seized weighed more than 500 grams. See
Herrera, 313 F.3d at 884-85.

                                       2
    Case: 12-40665     Document: 00512212652     Page: 3    Date Filed: 04/18/2013

                                  No. 12-40665

      Because Boyso-Gutierrez challenged the element of knowing possession in
his motion for a directed verdict, he preserved the issue for appellate review;
therefore, this court reviews his challenge to the sufficiency of the evidence de
novo. See United States v. Ollison, 555 F.3d 152, 158 (5th Cir. 2009).
      In reviewing the issue, we will uphold the jury’s verdict if a rational trier
of fact could conclude that “the element[] of the offense [was] established beyond
a reasonable doubt, viewing the evidence in the light most favorable to the
verdict and drawing all reasonable inferences from the evidence to support the
verdict.” United States v. Percel, 553 F.3d 903, 910 (5th Cir. 2008) (internal
quotation marks and citation omitted). We do “not weigh evidence or assess the
credibility of witnesses, and the jury is free to choose among reasonable
constructions of the evidence.” United States v. Ramos-Cardenas, 524 F.3d 600,
605 (5th Cir. 2008). The trier of fact is not “required to accept any alternative
explanation.” United States v. Winkler, 639 F.3d 692, 700 (5th Cir. 2011).
      Guilty knowledge may be inferred from conflicting stories, obvious
peculiarities indicating hidden compartments, and traveling with a large
quantity of an illicit substance. United States v. Martinez-Mercado, 888 F.2d
1484, 1491 (5th Cir. 1989). This court has also recognized that a reasonable
inference of guilty knowledge can be made when the cargo contains an extremely
valuable amount of contraband. United States v. Ramos-Garcia, 184 F.3d 463,
465-66 (5th Cir. 1999).
      Based on the inconsistent and implausible stories from Boyso-Gutierrez
and his witnesses, the amount and value of the methamphetamine, and the
obvious abnormality of the bag, a rational trier of fact could have found beyond
a   reasonable   doubt    that   Boyso-Gutierrez     knowingly    possessed    the
methamphetamine. Viewed in the light most favorable to the Government, the
evidence supports a finding of guilt. See Percel, 553 F.3d at 910.
      Accordingly, the judgment of the district court is AFFIRMED.



                                        3
