     Case: 18-40789       Document: 00515035673         Page: 1     Date Filed: 07/16/2019




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

                                     No. 18-40789                              FILED
                                   Summary Calendar                        July 16, 2019
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

ALEISHA O. GRAY,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:18-CR-84-2


Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Following a jury trial, Aleisha O. Gray was convicted of one count of
conspiring to transport illegal aliens within the United States, and two counts
of transporting illegal aliens within the United States, in violation of 8 U.S.C.
§ 1324. The district court varied downwardly from the sentencing range under
the advisory Sentencing Guidelines and sentenced Gray to, inter alia, 20
months’ imprisonment.


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
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                                 No. 18-40789

      She challenges her convictions and sentence. Regarding the former,
Gray, who elected to testify at trial, contends the evidence adduced as to each
count of conviction was insufficient, claiming the Government did not prove
she: knowingly participated in a conspiracy to transport illegal aliens; and was
aware she was transporting illegal aliens in the trunk of a rental vehicle.
      She failed, however, to preserve her sufficiency challenges because,
although she moved for a judgment of acquittal at the close of the
Government’s case, she did not renew the motion after the close of all evidence.
See United States v. Davis, 690 F.3d 330, 336 (5th Cir. 2012). Therefore, our
review is limited to whether the record is “devoid of evidence pointing to guilt”
or the evidence on an element of the offense is “so tenuous that a conviction
would be shocking”. Id. at 336–37 (internal quotation marks and citation
omitted).
      As noted, Gray elected to testify at trial. The evidence, viewed “in the
[requisite] light most favorable to the [G]overnment” and with “all reasonable
inferences and credibility choices” construed in favor of the verdict, supports
that Gray: knowingly agreed, with at least one other person, to transport
illegal aliens within the United States for private financial gain; and knew she
was transporting illegal aliens. See id. at 337 (internal quotation marks and
citation omitted). The record reflects Gray was recruited by, and acted in
accordance with the aims and directions of, an organized network that
exhibited coordination, planning, and conformity in smuggling illegal aliens
and moving them within the United States. Her role—driving the aliens across
the border checkpoint to a destination at which they would make additional,
and in some cases final, payments—complemented the jobs of others in the
network and fulfilled a goal of the enterprise. Because the success of the
network relied on Gray’s willingness to perform her job, she reasonably could



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                                 No. 18-40789

be viewed as a knowing participant in the conspiracy to transport illegal aliens.
See United States v. Rodriguez, 553 F.3d 380, 390–91 (5th Cir. 2008).
      Furthermore, aside from the circumstances and conditions of the job that
suggested it involved transporting aliens, the evidence supports that Gray:
was explicitly told before crossing the border checkpoint that she was expected
to transport aliens in the trunk of her rental vehicle; and knew her
codefendant—who had been recruited by the same network under identical
conditions and provided a vehicle also rented by Gray—was attempting to
drive aliens across the checkpoint on behalf of the enterprise. Notably, at the
checkpoint and in later interviews with agents, Gray, inter alia, displayed
nervous behavior, provided a seemingly illogical description of her itinerary,
and could not explain how the aliens were able to access the trunk of the rental
vehicle without her knowledge. See United States v. Diaz-Carreon, 915 F.2d
951, 954–55 (5th Cir. 1990); United States v. Richardson, 848 F.2d 509, 513
(5th Cir. 1988).
      Also, she was the sole driver and occupant of the vehicle in which the
aliens—who were to pay a portion of the smuggling fees after their arrival in
Houston—were concealed. Therefore, she presumably would not have been
allowed to transport the aliens if she was not aware of the network and the
aliens and did not have an incentive to keep them hidden.
      Although Gray contends the evidence supports she did not know about
the aliens, the jury, as evidenced by its verdict, found her testimony in that
regard not to be credible.      And, as our case law dictates, “credibility
determinations . . . are the province of the jury, not appellate judges”. United
States v. Morrison, 833 F.3d 491, 500 (5th Cir. 2016) (citation omitted). Again,
we must defer to that finding and construe all evidence and reasonable
inferences in favor of the verdict. See Davis, 690 F.3d at 337. Gray, therefore,



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                                  No. 18-40789

has not shown the record is devoid of evidence she knowingly agreed with
others to transport illegal aliens within the United States for financial gain or
that the evidence of her knowledge was so tenuous as to make her conviction
shocking. See id. at 336–37.
      Regarding her sentence, Gray claims, consistent with her objection in
district court, the court incorrectly applied an obstruction-of-justice
adjustment under Guideline § 3C1.1 (providing for a two-level enhancement
for obstructing justice), based on its finding she committed perjury by, inter
alia, falsely testifying at trial she and her codefendant did not talk while they
were in Texas to complete jobs for the conspiracy.
      Although post-Booker, the Guidelines are advisory only, the district
court must avoid significant procedural error, such as improperly calculating
the Guidelines sentencing range. Gall v. United States, 552 U.S. 38, 48–51
(2007). If no such procedural error exists, a properly preserved objection to an
ultimate sentence is reviewed for substantive reasonableness under an abuse-
of-discretion standard. Id. at 51; United States v. Delgado-Martinez, 564 F.3d
750, 751–53 (5th Cir. 2009). In that respect, for issues preserved in district
court, its application of the Guidelines is reviewed de novo; its factual findings,
only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751,
764 (5th Cir. 2008). Accordingly, we review for clear error the finding, objected-
to in district court, that Gray obstructed justice. See United States v. Juarez-
Duarte, 513 F.3d 204, 208 (5th Cir. 2008).
      The record supports that Gray gave testimony about her discussions
with her codefendant that reasonably could be viewed as a willful denial of
material facts. See United States v. Dunnigan, 507 U.S. 87, 94 (1993); United
States v. Perez-Solis, 709 F.3d 453, 469 (5th Cir. 2013); U.S.S.G. § 3C1.1, cmt.
n.4(B) (explaining covered conduct under § 3C1.1 includes “committing,



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                                  No. 18-40789

suborning, or attempting to suborn perjury . . . if such perjury pertains to
conduct that forms the basis of the offense of conviction”). Gray repeatedly
testified she did not talk to her codefendant after they came to Texas; but, the
evidence at trial—and additional evidence in the unrebutted presentence
investigation report (PSR)—reflected that they had substantive discussions on
cell phones after their arrivals.   The false testimony was relevant to the
material fact of whether Gray was aware she was transporting illegal aliens
and, therefore, was designed to have a substantial effect on the outcome of the
proceeding. See United States v. Como, 53 F.3d 87, 90 (5th Cir. 1995); United
States v. Cabral-Castillo, 35 F.3d 182, 187 (5th Cir. 1994); U.S.S.G. § 3C1.1,
cmt. n.6 (defining “material” evidence).
      Her claim her perjurious testimony was the result of nervousness or
confusion is unsupported by the record. The district court—which adopted the
PSR and therefore made independent findings to support that Gray committed
perjury—did not commit clear error in finding Gray obstructed justice for its
purposes of assessing a § 3C1.1 enhancement. See Perez-Solis, 709 F.3d at 469;
Juarez-Duarte, 513 F.3d at 208.
      AFFIRMED.




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