     Case: 15-50407      Document: 00513640690         Page: 1    Date Filed: 08/17/2016




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

                                      No. 15-50407                            FILED
                                                                        August 17, 2016
                                                                         Lyle W. Cayce
UNITED STATES OF AMERICA,                                                     Clerk

              Plaintiff - Appellee

v.

JOSE ELUID LUGO-LOPEZ, also known as Cochi Loco; EMILIO
VILLALOBOS-ALCALA, also known as La Tripa,

              Defendants - Appellants




                  Appeals from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:13-CR-217-2


Before STEWART, Chief Judge, and PRADO and SOUTHWICK, Circuit
Judges.
PER CURIAM:*
       Jose    Eluid    Lugo-Lopez       (“Lugo”)    and     Emilio     Villalobos-Alcala
(“Villalobos”) (collectively, the “Appellants”) were convicted in the United
States District Court for the Western District of Texas for gun and drug
smuggling offenses. The district court sentenced Appellants to, inter alia, life



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-50407
imprisonment.        Appellants appealed, challenging the sufficiency of the
evidence for conviction, the district court’s admission of trial evidence, and the
court’s imposition of Appellants’ life sentences. We AFFIRM.
                                               I.
       Appellants were charged in a Third Superseding Indictment with: (1)
conspiracy to possess with intent to distribute over 1000 kilograms of
marijuana (Count 1); (2) conspiracy to import into the United States from
Mexico over 1000 kilograms of marijuana (Count 2); (3) conspiracy to possess
firearms in furtherance of a drug trafficking crime (Count 3); and (4) two
counts of aiding and abetting the exportation from the United States of defense
articles as defined under Category I of the United States Munitions List
(Counts 4 and 5). 1 Following a five-day jury trial, a jury found Appellants
guilty on all counts. The district court sentenced each Appellant to (1) life
imprisonment on Counts 1 and 2; (2) 240 months’ imprisonment on Count 3;
and (3) 120 months’ imprisonment on Counts 4 and 5. Appellants timely
appealed.
                                               II.
       Appellants first challenge the sufficiency of the evidence with respect to
the underlying conspiracy and aiding and abetting charges. We review a
sufficiency challenge de novo if properly preserved through a motion for
judgment of acquittal at trial. See United States v. McDowell, 498 F.3d 308,
312 (5th Cir. 2007). “We will affirm the jury’s verdict if a reasonable trier of
fact could conclude from the evidence that the elements of the offense were



       1Appellants’ five counts relate to the following statutory references: (1) 21 U.S.C. §§
841(a)(1), 841(b)(1)(A), 846 (Count 1); (2) 21 U.S.C. §§ 952(a), 960(a)(1), 960(b)(1), and 963
(Count 2); (3) 21 U.S.C. § 924(o) (Count 3); and (4) 22 U.S.C. §§ 2778(b)(2), 2778(c), 22 C.F.R.
Part 121, 123, 127, and 18 U.S.C. §§ 554(a), and 2 (Counts 4 and 5).
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                                   No. 15-50407
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. Floyd, 343 F.3d 363, 370 (5th
Cir. 2003). “The evidence need not exclude every reasonable hypothesis of
innocence or be wholly inconsistent with every conclusion except that of guilt,
and the jury is free to choose among reasonable constructions of the evidence.”
United States v. Salazar, 66 F.3d 723, 728 (5th Cir. 1995), abrogated in part by
United States v. Sorrells, 145 F.3d 744 (5th Cir. 1998). We neither review the
weight of the evidence or the credibility of the witnesses. Floyd, 343 F.3d at
370.
        Appellants preserved a sufficiency of the evidence claim in this case after
moving for judgment of acquittal at the close of evidence; the court denied the
motion. Accordingly, this preserved error is reviewed de novo. See United
States v. Anderson, 174 F.3d 515, 522 (5th Cir. 1999).
                                          A.
        Lugo argues that evidence presented at trial was insufficient to support
a conviction under Count 4 for aiding and abetting the exportation of firearms
and ammunition from the United States. Specifically, Lugo contends that
there is no evidence linking him with the August 7, 2012, seizure of firearms
and ammunition from a Ford F-250 truck driven by co-conspirator Sarai
Longoria-Rivas (“Longoria”), and seized by Border Patrol as Longoria was
driving toward Eagle Pass, Texas.      Relevant here, an offense under 18 U.S.C.
§ 554(a) for aiding and abetting the exportation of munitions from the United
States (Count 4) requires proof that “the defendant knew he was dealing with
ammunition that was intended for export and that the exportation was illegal.”
United States v. Cardenas, 810 F.3d 373, 374 (5th Cir. 2016) (per curiam). To
establish that Lugo aided and abetted a violation of § 554(a), the Government
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must show that “the elements of the substantive offense occurred and that the
defendant associated with the criminal venture, purposefully participated in
the criminal activity, and sought by his actions to help it succeed.” United
States v. Mitchell, 792 F.3d 581, 583 (5th Cir. 2015) (per curiam).         Lugo
contends that the Government failed to establish that he aided and abetted the
attempted smuggling. His argument bears little weight.
      At trial, witnesses testified to being given direct instructions from Lugo
to make purchases in the aid of smuggling munitions and to transport weapons
from the United States to Mexico; others were threatened with violence
because of their involvement with the smuggling.           Indeed, one of the
Government’s strongest witnesses, Julio Salazar (“Salazar”), testified at trial
to Lugo’s direct involvement in smuggling guns. See United States v. Valdez,
453 F.3d 252, 257 (5th Cir. 2006) (“[A] defendant may be convicted on the
uncorroborated testimony of a coconspirator who has accepted a plea bargain
unless the coconspirator’s testimony is incredible.”). Salazar testified that he
reported back to Lugo and that he was individually responsible for driving a
Ford F-250 truck from San Antonio, Texas, to Piedras Negras, Mexico, with
forty to fifty assault rifles and fifteen to twenty handguns stored in the truck.
Salazar had installed an external gas tank to the exterior of the Ford truck and
returned it to Lugo prior to his trip.
      Salazar also testified that Lugo orchestrated a separate smuggling: the
loading of firearms into a vehicle that was seized from a woman in the summer
of 2012; Lugo instructed Salazar to purchase an external gas tank for that Ford
F-250 truck. Salazar testified that following the summer 2012 seizure of that
Ford F-250 truck, Lugo informed Salazar that the load taken by police
belonged to him.     Salazar’s testimony was corroborated by Longoria, who
testified about the same agreement that involved Longoria picking up and
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                                No. 15-50407
dropping off a Ford F-250 truck with an external gas tank attached to the bed
of the truck in August of 2012. See Valdez, 453 F.3d at 259 (concluding that a
rational jury could find ample evidence to support a conspiracy charge where
each co-conspirator’s testimony tended to corroborate the testimony of the
other co-conspirators).
      Finally, telephone call logs presented at trial also linked Lugo to the
smuggling of firearms. Numerous phone calls were made between Longoria
and Lugo leading up to the date of Longoria’s arrest and Longoria testified to
having been given Lugo’s telephone number while she was smuggling firearms.
See id. Here, each witness’s testimony strengthened the link to Lugo.
                                       B.
      Villalobos argues that the Government presented insufficient evidence
of his alleged participation in the conspiracies charged in Counts 1–3:
conspiracy to possess with intent to distribute marijuana, conspiracy to import
marijuana, and conspiracy to possess firearms in furtherance of a drug
trafficking crime. To establish that a particular defendant possessed with
intent to distribute, or conspired to import, more than 1000 kilograms of
marijuana under Counts 1 and 2, the Government was required to prove the
existence of a conspiracy, Villalobos’s involvement in the conspiracy, and the
requisite drug quantity (here, more than 1000 kilograms) involved in the
conspiracy beyond a reasonable doubt. See United States v. Turner, 319 F.3d
716, 722–23 (5th Cir. 2003).    The amount that is directly attributable to
Villalobos is a matter that must be proven by a preponderance of the evidence
at sentencing. Id. at 723.
      “[A]n in-court identification is not necessary for conviction.”   United
States v. Castaneda, 548 F. App’x 140, 143 (5th Cir. 2013). We have also held
that “[a]lthough ‘an uncertain in-court identification will not support a
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                                   No. 15-50407
conviction where that identification is the only evidence offered on the issue of
identity,’ such ‘tentative nature of . . . identification is not fatal,’ if there is
other sufficient evidence of identity.” United States v. Guerrero, 169 F.3d 933,
941 (5th Cir. 1999) (emphasis omitted). However, where the “sole witness is
unsure and there are no other connecting or corroborating facts or
circumstances” the jury cannot find guilt beyond a reasonable doubt. United
States v. Johnson, 427 F.2d 957, 961 (5th Cir. 1970), superseded by rule on
other grounds in United States v. Nelson, 242 F. App’x 164 (5th Cir. 2007).
      Villalobos highlights hesitancy from a handful of witnesses in identifying
him in court as “La Tripa,” the nickname for the individual who many of the
witnesses    had     testified   had   been     involved     in     the    conspiracies.
Notwithstanding Villalobos’s attempt to hide the court’s eyes from the
numerous other in-court identifications of him, several witnesses positively
identified Villalobos as “La Tripa.”         Among them were (1) Salazar, who
interacted with Villalobos on several occasions after having worked with Lugo
to smuggle marijuana and firearms between the United States and Mexico; (2)
Claudia Reyna, who testified to being physically and mentally abused by
Villalobos as a result of her involvement in the drug smuggling; and (3) Julio
Aguirre, who met Villalobos on multiple occasions when traveling to Mexico
after crossing the Texas border with Leroy Milligan, one of Villalobos’s main
co-conspirators. See United States v. Bermea, 30 F.3d 1539, 1554 (5th Cir.
1994) (concluding that the evidentiary weight of testimony or in-court
identifications of defendants was adequate to find sufficient evidence of
participation in conspiracy).
      Villalobos draws the court’s attention to the inability of three witnesses
to initially identify him as “La Tripa” when first asked whether they saw “La
Tripa” in court; this is not fatal. He points to (1) Juan Rivas, who allegedly
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                                 No. 15-50407
had an agreement to smuggle guns and drugs on behalf of Villalobos and Lugo;
(2) co-conspirator Milligan; and (3) Martha Perez-Lopez, Julio Salazar’s
mother and the individual who had previously rented her home in Mexico to
Villalobos. Both Rivas and Perez-Lopez, though with some initial uncertainty,
identified Villalobos in court after having previously identified him as “La
Tripa” during a photo lineup occurring closer in time to the conspiracy. See
Simmons v. United States, 390 U.S. 377, 384 (1968) (“[C]onvictions based on
eyewitness identification at trial following a pretrial identification by
photograph will be set aside on that ground only if the photographic
identification procedure was so impermissibly suggestive as to give rise to a
very substantial likelihood of irreparable misidentification.”); United States v.
Keller, 512 F.2d 182, 184 (3d Cir. 1975) (reversing a conviction based on a
witness’s uncertain identification of the defendant where the witness solely
stated that the defendant looked “most like” the individual in question).
Villalobos presented no evidence of an impermissibly suggestive pre-trial photo
lineup and the witnesses ultimately provided clear testimony that Villalobos
did in fact look like “La Tripa,” but with slight physical appearance differences
likely explained by the passage of time such as a change in facial hair. Rivas
and Milligan also identified photos found on Villalobos’s wife’s phone of him as
“La Tripa.” See Castaneda, 548 F. App’x at 143 (“In-court identification is only
one piece of all the evidence presented to the jury. Other circumstantial
evidence presented could have led a reasonable jury to find [defendant] guilty
of the charged crimes.”). We give no weight to Villalobos’s argument that the
Government presented insufficient evidence to link him to the charged
conspiracies.
      Villalobos’s second concern—that the prosecutor’s leading questions
tainted the witnesses’ identifications of him—is similarly without merit. While
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testifying, Milligan and Perez-Lopez noted that Villalobos’s appearance was
slightly different from the “La Tripa” that they had previously interacted with;
nonetheless, each positively identified him based on their prior interactions.
But see United States v. Cooper, 606 F.2d 96, 98 (5th Cir. 1979) (“The control
of leading questions is within the discretion of the trial court. That discretion
may be abused, of course, for example where the questions asked have the
effect of supplying a witness with a ‘false memory.’”) (citations omitted). After
having carefully reviewed the record, it is clear that other witnesses
sufficiently identified Villalobos as “La Tripa” such that these identifications
are independently reliable.      Milligan and Perez-Lopez’s testimony were
unnecessary for a jury to have found guilt. See Chapman v. California, 386
U.S. 18, 24 (1967) (affirming a conviction where it was “beyond a reasonable
doubt that the error complained of did not contribute to the verdict obtained”).
      Finally, Villalobos argues that the Government failed to establish his
responsibility for greater than 1000 kilograms of marijuana. This too is of no
moment. As we have previously held, “the jury should determine the existence
vel non of the conspiracy as well as any facts about the conspiracy that will
increase the possible penalty for the crime of conviction beyond the default
statutory maximum; and the judge should determine, at sentencing, the
particulars regarding the involvement of each participant in the conspiracy.”
Turner, 319 F.3d at 722. The amount of marijuana that Villalobos is directly
responsible for is not an issue for trial, but sentencing.
                                         III.
      Villalobos next argues that the court erred in allowing evidence to be
introduced that he is allegedly a member of the Zeta cartel and that
introduction of this evidence violates Rules 403 and 404 of the Federal Rules
of Evidence. “Generally, we review a trial court’s decision to admit evidence
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                                  No. 15-50407
for abuse of discretion.” See United States v. Akpan, 407 F.3d 360, 373 (5th
Cir. 2005). Where a defendant did not object to the evidence on the basis
presented on appeal, we review for plain error. United States v. Williams, 620
F.3d 483, 488–89 (5th Cir. 2010). To prevail under plain error review, an
appellant must “show a forfeited error that is clear or obvious and that affects
his substantial rights.” United States v. Andaverde-Tinoco, 741 F.3d 509, 516
(5th Cir. 2013). If such error exists, we have discretion to correct the error,
“but only if it seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” Id.
      Under Rule 404(b), evidence of a person’s crimes, wrongs, or other acts
is “not admissible to prove the character of a person in order to show action in
conformity therewith.” Williams, 620 F.3d at 489. “Intrinsic evidence, on the
other hand, is generally admissible.” United States v. Sumlin, 489 F.3d 683,
689 (5th Cir. 2007). “Evidence is intrinsic when it is ‘inextricably intertwined’
with or ‘a necessary preliminary to the crime charged,’ or when it is ‘part of a
single criminal episode’ with the charged act.” United States v. Martinez-
Herrera, 539 F. App’x 598, 601 (5th Cir. 2013) (quoting Sumlin, 489 F.3d at
689). Notwithstanding, “[e]vidence may be excluded if its probative value is
substantially outweighed by . . . unfair prejudice.” Fed. R. Evid. 403.
      The Government’s evidence established that Villalobos’s membership in
the Zeta cartel was relevant to his culpability for particular criminal acts
intrinsic to the conspiracy and not indicative of Villalobos’s character. See
Martinez-Herrera, 539 F. App’x at 601 (“T]he drug conspiracy charge permitted
proof of acts of the conspirators occurring during the life of the conspiracy.”);
see also United States v. Maceo, 947 F.2d 1191, 1199 (5th Cir. 1991) (“Evidence
of an uncharged offense arising out of the same transactions as the offenses
charged in the indictment is not extrinsic evidence within the meaning of Rule
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                                   No. 15-50407
404(b), and is therefore not barred by the rule.”). In this instance, “[e]vidence
of the structure of the conspiracy, including . . . question[s] about and
references to the cartel[] for which [defendant] worked, [is] . . . intrinsic proof
of the conspiracy.” Martinez-Herrera, 539 F. App’x at 601. These acts and
related references to the Zeta cartel included testimony that Villalobos directed
action of co-conspirators to further the purpose of the Zeta cartel.
      Villalobos’s alleged cartel involvement was also probative of his
association with the other members of the conspiracy, whom he attempts to
dissociate himself from. See United States v. Chavful, 100 F. App’x 226, 231
(5th Cir. 2004) (upholding a conviction involving gang affiliation testimony
where the probative value of the testimony outweighs any unfair prejudice).
While testimony presented at trial about the violence and lawlessness of the
Zeta cartel is prejudicial to Villalobos, it is not unfairly prejudicial.       Id.
Furthermore, any undue prejudice established from introduction of Villalobos’s
alleged cartel involvement was alleviated by mitigating trial testimony from
witnesses: “Prosecutor: “[W]hether or not somebody is or is not a Zeta has
absolutely nothing to do with whether or not they’re guilty, is that correct.”
“[Witness]: “Correct.”
      Even assuming, without deciding, that the district court erred in
admitting the challenged evidence, the error is harmless given other
substantial evidence of Villalobos’s guilt, including multiple in-court
identifications and testimony linking Villalobos’s conduct to the charged
offenses. See United States v. McCall, 553 F.3d 821, 827 (5th Cir. 2008)
(finding no plain error where the district court allowed the admission of “guilt-
by-association” testimony because of strong evidence of defendant’s guilt). The
admission of evidence as to Villalobos’s identity and his membership in the
Zeta cartel was not reversible error.
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                                  No. 15-50407
                                           IV.
      Appellants’ final challenge is to the district court’s imposition of life
sentences.    Appellants argue that their life sentences are greater than
necessary to comply with the statutory purposes of sentencing under 18 U.S.C.
§ 3553, especially in light of Appellants’ minimal criminal history. Where, as
here, a defendant fails to object to his sentence during sentencing, we review
the district court’s sentencing decision for plain error. See United States v.
Ronquillo, 508 F.3d 744, 748 (5th Cir. 2007). We apply the same plain error
standard of review when a defendant fails to object to the reasonableness of
his sentence. Id. Plain error review is detailed supra in Section III.
      We     review   sentences     for   procedural    error     and    substantive
reasonableness. See United States v. Bennett, 485 F. App’x 673, 675 (5th Cir.
2012). Sentences must be sufficient but not greater than necessary to comply
with § 3553(a). See Kimbrough v. United States, 552 U.S. 85, 91 (2007). When
the district court imposes a sentence within a properly calculated guidelines
range and gives proper weight to the Guidelines and the § 3553(a) factors, we
“will give great deference to that sentence” and “will infer that the judge has
considered all the factors for a fair sentence set forth in the Guidelines” in light
of the sentencing considerations set out in § 3553(a). United States v. Campos-
Maldonado, 531 F.3d 337, 338 (5th Cir. 2008).                “Appellate review for
substantive reasonableness is highly deferential, because the sentencing court
is in a better position to find facts and judge their import under the § 3553(a)
factors with respect to a particular defendant.” Bennett, 485 F. App’x at 675
(quoting United States v. Scott, 654 F.3d 552, 555 (5th Cir. 2011)).
      At sentencing, the district court considered the § 3553(a) sentencing
factors, the factual information in the PSR, and all other information privy to
the court. The advisory Sentencing Guidelines as outlined in the PSR took
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                                  No. 15-50407
Appellants’ lack of, or limited, criminal histories into account and nevertheless
deemed life sentences appropriate. As we have previously held, a sentence
imposed within the Guideline range is entitled to a rebuttable presumption of
reasonableness. See United States v. Wyss, 542 F. App’x 401, 408 (5th Cir.
2013). Appellants can rebut the presumption “only upon a showing that the
sentence does not account for a factor that should receive significant weight,
gives significant weight to an irrelevant or improper factor, or represents a
clear error of judgment in balancing sentence factors.” Id. The life sentences
imposed here, though long, were within the properly calculated Guideline
range, which Appellants do not contest. Id. (quoting United States v. Alonzo,
435 F.3d 551, 554 (5th Cir. 2006) (“If the sentencing judge exercises her
discretion to impose a sentence within a properly calculated Guideline range,
in our reasonableness review we will infer that the judge has considered all the
factors for a fair sentence set forth in the Guidelines.”)).
      The district court justified Appellants’ sentences at the sentencing
hearing through a discussion of the impact of the gun and drug trade on the
numerous co-conspirators and their families that have become collateral
damage. The district court’s reflection addressed the acute violence that Lugo
imposed on those who decided that they did not want to work for him. The
district court found that Appellants presented no evidence rebutting the
representations found in the PSR or the trial record, save for Villalobos’s
counsel’s policy arguments regarding disparities in sentencing between
Appellants and their co-conspirators, which bears little weight here.
Accordingly, Appellants failed to rebut the presumption of reasonableness that
applies here. See United States v. Romans, No. 13-40219, 2016 WL 2957797,
at *7 (5th Cir. May 19, 2016) (affirming a within-Guidelines sentence
notwithstanding the long length of time appellant would likely remain in
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                                       No. 15-50407
prison); United States v. Alvarado, 691 F.3d 592, 597 (5th Cir. 2012)
(concluding that appellant’s “mere belief that the mitigating factors presented
for the court’s consideration should have been balanced differently is
insufficient to disturb this presumption”). The court need not vacate a life
sentence merely because Appellants’ likely have many more years to live. 2
      Given the district court’s consideration of the § 3553(a) factors and the
serious nature of both Villalobos’s and Lugo’s offenses, the district court’s
imposition of life imprisonment sentences was substantively reasonable and
free of error.
                                               V.
      For the foregoing reasons, we AFFIRM.




      2 Other circuits have dismissed similar arguments:
              [Appellant’s] emphasis on his ‘youth’ is simply misleading. He is . . . an
      adult able to understand the consequences of his actions. Although the
      indictment charged that the conspiracy began when [Appellant] was a
      teenager, [Appellant’s] criminal conduct occurred largely, if not entirely,
      during his adulthood. As for [Appellant’s] prowess as a boxer, the district court
      had no obligation to impose a lower sentence just so [Appellant] might pursue
      the boxing career he had already eschewed for a more lucrative life of crime.
      (We assume a much lower sentence would have been needed to allow
      [Appellant] to box outside prison while he is still young and healthy enough.)
      We sympathize with [Appellant’s] young son, who undoubtedly deserved a
      better chance to have a father play a meaningful role in his life. But the district
      court reasonably concluded that [Appellant’s] decision to pursue a life of crime
      showed his apparent disregard for his son’s welfare, as well as for the welfare
      of those who were harmed by the cocaine [Appellant] helped distribute, and
      justified adherence to the guideline recommendation of life imprisonment.
      United States v. Tanner, 628 F.3d 890, 909 (7th Cir. 2010).
                                             13
