     Case: 09-50989     Document: 00512005776         Page: 1     Date Filed: 10/02/2012




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

                                                                            FILED
                                                                          October 2, 2012

                                       No. 09-50989                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee
v.

JUAN FRANCISCO CHAVEZ-IBARRA,

                                                  Defendant - Appellant



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 4:09-cr-155-1


Before KING, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Defendant–Appellant Juan Francisco Chavez–Ibarra was convicted of ten
drug-related crimes.        On appeal, Chavez–Ibarra contends that there was
insufficient evidence to support his conviction for six of the crimes.
Chavez–Ibarra also contends that the sentences imposed for two of his
convictions were unreasonable. For the reasons stated below, we AFFIRM.




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 09-50989

             I. FACTUAL AND PROCEDURAL BACKGROUND
       Defendant–Appellant Juan Francisco Chavez–Ibarra (“Chavez–Ibarra”)
was charged in a multi-count federal indictment with various drug-related
crimes. As relevant here, the indictment specifically charged Chavez–Ibarra
with: (1) conspiracy to possess with intent to distribute between 100 and 1,000
kilograms of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count
One); (2) conspiracy to import into the United States between 100 and 1,000
kilograms of marijuana in violation of 21 U.S.C. §§ 846, 952, and 960 (Count
Two); (3) aiding and abetting the possession of less than 50 kilograms of
marijuana with intent to distribute, on or about March 1 and April 2, 2006, in
violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Counts Three and Five); and
(4) aiding and abetting the importation into the United States of less than 50
kilograms of marijuana, on or about March 1 and April 2, 2006, in violation of
21 U.S.C. §§ 952 and 960 and 18 U.S.C. § 2 (Counts Four and Six).1
       The evidence at trial showed that Chavez–Ibarra had recruited three
individuals—Paul Gassett (“Gassett”), Teddy Nevins, and Teddy’s wife Jacki
Nevins (the “Nevinses”)—to transport marijuana from Mexico to the United
States. Between them, Gassett and the Nevinses made at least four trips to and
from Mexico under Chavez–Ibarra’s direction. The first two of these trips,
occurring on or about March 1 and April 2, 2006, resulted in successful border
crossings by Gassett. During the third trip, which took place on or about April
16, 2006, Gassett was arrested after U.S. Customs and Border Protection
inspectors seized thirty kilograms of marijuana from a hidden compartment in


       1
         The indictment also charged Chavez–Ibarra with: (1) aiding and abetting the
possession of less than 50 kilograms of marijuana with intent to distribute, on or about April
16 and May 18, 2006, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Counts Seven and
Nine); and (2) aiding and abetting the importation into the United States of less than 50
kilograms of marijuana, on or about April 16 and May 18, 2006, in violation of 21 U.S.C. §§ 952
and 960 and 18 U.S.C. § 2 (Counts Eight and Ten). Chavez–Ibarra does not appeal his
convictions for Counts Seven through Ten.

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                                     No. 09-50989

the vehicle he was driving. Weeks later, on or about May 18, 2006, the Nevinses
were similarly arrested after inspectors discovered thirty-five kilograms of
marijuana hidden in their vehicle.
      A jury found Chavez–Ibarra guilty of all ten counts charged in the
indictment and the district court sentenced him to 121 months of
imprisonment—the high end of the applicable guidelines range—on each of
Counts One and Two, and 60 months of imprisonment on each of Counts Three
through Ten.      The court ordered all sentences to be served concurrently.
Chavez–Ibarra timely appeals, contending that the evidence was insufficient to
support his conviction for the crimes charged in Counts One through Six, and
that the sentences imposed by the district court for Counts One and Two were
unreasonable.2
                                  II. DISCUSSION
A. The Sufficiency of the Evidence Supporting the Convictions for
Counts One through Six
      1. Standard of Review
      Chavez–Ibarra properly preserved his challenge to the sufficiency of the
evidence by moving for a judgment of acquittal under Federal Rule of Criminal
Procedure 29. “This court reviews preserved challenges to the sufficiency of the
evidence de novo.” United States v. Grant, 683 F.3d 639, 642 (5th Cir. 2012).
“When reviewing the sufficiency of the evidence, we view all evidence, whether
circumstantial or direct, in the light most favorable to the government, with all
reasonable inferences and credibility choices to be made in support of the jury’s
verdict.” United States v. Ford, 558 F.3d 371, 375 (5th Cir. 2009). On review,
the question is whether “a rational trier of fact could have found the essential



      2
         As noted, Chavez–Ibarra does not appeal his convictions for Counts Seven through
Ten, relating to the marijuana transported by Gassett and the Nevinses on April 16 and May
18, 2006, respectively.

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elements of the crime beyond a reasonable doubt.” United States v. Seale, 600
F.3d 473, 496 (5th Cir. 2010). “A jury is free to choose among reasonable
constructions of the evidence.” United States v. Pigrum, 922 F.2d 249, 254 (5th
Cir. 1991). Accordingly, our review is “highly deferential to the verdict.” United
States v. Harris, 293 F.3d 863, 869 (5th Cir. 2002).
       2. The Evidence Was Sufficient to Support Chavez–Ibarra’s Convictions
       As noted, the indictment charged Chavez–Ibarra in Counts Three and Five
with aiding and abetting the possession of less than fifty kilograms of marijuana
with intent to distribute. “To convict a defendant for possession of marijuana
with intent to distribute, the Government must prove that the defendant (1)
knowingly; (2) possessed marijuana; (3) with the intent to distribute.” United
States v. Garcia, 242 F.3d 593, 596 (5th Cir. 2001). In Counts Four and Six,
Chavez–Ibarra was charged with aiding and abetting the importation of less
than fifty kilograms of marijuana into the United States. To convict a defendant
of this charge, the Government must establish: “(1) the defendant played a role
in bringing a quantity of a controlled substance into the United States from
outside of the country; (2) the defendant knew the substance was controlled; and
(3) the defendant knew the substance would enter the United States.” United
States v. Moreno, 185 F.3d 465, 471 (5th Cir. 1999).3 Significantly, then, the
quantity of marijuana involved in the crimes charged in Counts Three through
Six is not an element of the underlying offenses. See 21 U.S.C. § 841(b)(1)(D);
United States v. Patino–Prado, 533 F.3d 304, 312 (5th Cir. 2008) (“Even without
a jury finding of a specific quantity of a drug, a defendant may receive up to a
five-year sentence for conspiring to possess with intent to distribute an unknown
quantity of marihuana.”).


       3
        Importantly for Counts Three through Six, “[a] person who aids and abets another to
commit a crime is punishable as a principal.” United States v. Infante, 404 F.3d 376, 385 (5th
Cir. 2005).

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       In contrast, to prove a drug conspiracy as charged in Counts One and Two,
“the government must establish ‘(1) the existence of an agreement between two
or more persons to violate federal narcotics laws; (2) the defendant’s knowledge
of the agreement; . . . (3) the defendant’s voluntary participation in the
agreement’”; and, where “the indictment alleges a quantity greater than 100
kilograms of marijuana, triggering [enhanced] punishment within the statutory
range of 21 U.S.C. § 841(b)(1)(B)(vii),” (4) “proof of an amount greater than 100
kilograms” of marijuana. United States v. DeLeon, 247 F.3d 593, 596 (5th Cir.
2001) (quoting United States v. Gonzales, 79 F.3d 413, 423 (5th Cir. 1996)).4
       Chavez–Ibarra’s challenge to the sufficiency of the evidence to support his
convictions under Counts One through Six rests on his contention that the
Government did not prove that Gassett was transporting any marijuana—let
alone the amount required to support the conspiracy charges—during his first
two trips to Mexico. Chavez–Ibarra stresses, in other words, that there was no
direct evidence presented at trial that Gassett transported any marijuana on or
about March 1 and April 2, 2006, as reflected in Counts Three through Six.
Moreover, while Chavez–Ibarra does not appeal his convictions under Counts
Seven through Ten, he submits that they establish only that he was involved in
crimes connected to sixty-five kilograms of marijuana, an amount thirty-five
kilograms less than the quantity charged under Counts One and Two.



       4
         Notably, as is true in this case,“an indictment’s allegation of a drug-quantity range,
as opposed to a precise drug quantity, is sufficient.” DeLeon, 247 F.3d at 597 (emphasis
added). We also observe in passing that this circuit’s pattern jury instructions include
commentary regarding how the issues raised in this appeal may be avoided. In particular, a
note to section 2.87 states that “if there is a fact dispute as to whether the amount [of a drug]
is above or below a particular baseline (e.g., 100 kilograms of marijuana versus 99 kilograms),
the court may consider submitting the higher amount in the fourth element accompanied by
a Lesser Included Offense instruction . . . for the lower amount,” or, alternatively, substituting
for the quantity “element a special interrogatory on the verdict form asking the jury to
determine the exact amount of the controlled substance.” FIFTH CIRCUIT PATTERN JURY
INSTRUCTIONS (CRIMINAL CASES) § 2.87 (2001) (Note).

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       To support his argument, Chavez–Ibarra seizes on the fact that Gassett
did not testify that he personally saw any marijuana during his first two trips
from Mexico. Indeed, Chavez–Ibarra implies that there was no marijuana in the
vehicle during those trips, but that Gassett simply may have been “burning the
plates” of the vehicle—a technique by which drug smugglers repeatedly cross the
border in a vehicle that is not loaded with drugs to reduce suspicion.5
Chavez–Ibarra also emphasizes that he agreed to pay Gassett more for the third
trip than he had for the first two, suggesting that Gassett was not transporting
marijuana on the first two occasions.                In view of these arguments,
Chavez–Ibarra asserts that his convictions for the crimes charged in Counts One
through Six were based on improper speculation and therefore must be
overturned. See United States v. Crain, 33 F.3d 480, 487 (5th Cir. 1994) (“[W]e
suspect that the jury must have speculated [the defendant] into a conviction,
piling inference upon inference, which it cannot do. Inferences must stop at
some point.” (citation and internal quotation marks omitted)).
       Despite Chavez–Ibarra’s arguments to the contrary, however, the evidence
was sufficient to convict him of the charges set forth in Counts One through Six.
Chavez–Ibarra’s arguments essentially highlight the lack of direct evidence
regarding the quantity of marijuana—if any—Gassett transported during his
first two trips from Mexico, but these arguments neglect that the Government
may prove its case with either direct or circumstantial evidence.
       On this point, United States v. Arras, 373 F.3d 1071 (10th Cir. 2004), is
illustrative. There, despite the defendants’ challenge to the sufficiency of the
evidence, the court affirmed their convictions for conspiracy to import and
possess more than 100 kilograms of marijuana. Id. at 1073. As here, the


      5
       By collecting the license plate number of every vehicle that crosses the border, the
Treasury Enforcement Communications System (TECS) allows Immigration and Customs
Enforcement officials to monitor suspicious activity.

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                                     No. 09-50989

defendants in Arras challenged the convictions specifically on the assertion that
the Government had not established that “the amount of marijuana involved in
the conspiracies was over 100 kilograms.” Id. Indeed, the only direct evidence
of the quantity of marijuana involved in the conspiracies was thirty-nine
kilograms of marijuana seized when Tammy Nielsen (“Nielsen”) was arrested
while attempting to enter the United States with marijuana in metal canisters
inside her vehicle’s tires.    Id.     Nielsen also testified, however, that the
defendants had hired her to transport drugs on four separate occasions and that
she knew she was transporting drugs during each of the four trips. Id. at 1073,
1074. Although Nielsen had not seen any marijuana stored in her tires on the
trips she completed before her arrest, she was instructed prior to each of those
trips to check the oil and tire pressure regularly, and was paid $2,000 for a trip
within the United States and $4,000 for trips that required border crossings. Id.
at 1074–75. A customs agent testified that the standard rate for transporting
marijuana was $50 per pound, which supported the inference that Nielsen had
transported over 100 kilograms of marijuana during the course of the four trips
she made for the defendants. Id. at 1075. The court stated that although it was
“a close case, our review of the record convinces us that the evidence was
sufficient to support defendants’ convictions and that the jury’s conclusion was
not based on improper speculation or conjecture.” Id. at 1074.
      This court’s decision in United States v. Turner, 319 F.3d 716 (5th Cir.
2003), is similarly instructive. In Turner, defendant John Turner (“Turner”)
challenged his conviction for conspiracy to distribute more than five kilograms
of cocaine. Id. at 718. Victor Jiminez (“Jiminez”), one of Turner’s alleged co-
conspirators, testified that he sold approximately four kilograms of cocaine to
Julius Robinson (“Robinson”), another alleged co-conspirator.         Id. at 719.
Further, the Government introduced evidence of a phone call wherein Robinson
attempted to buy half a kilogram of cocaine from Jiminez, but Jiminez refused

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because he normally did not deal in amounts under one kilogram. Id. Even with
evidence of these two transactions, though, “[t]he Government only provided
direct evidence of the involvement of 4.5 kilograms of cocaine” in the conspiracy.
Id. at 723–24.    Accordingly, Turner contended that there was insufficient
evidence regarding the involvement of the requisite quantity of five kilograms
of cocaine. Id. at 721. This court explained, however, that there was sufficient
circumstantial evidence suggesting that the conspiracy involved more than five
kilograms of cocaine. Id. at 723–24. In particular, Jiminez testified that
Robinson had unsuccessfully sought to buy cocaine from him on three or four
occasions. Id. at 719. “Because Jiminez dealt in one-kilogram quantities only,”
the court agreed with the Government’s argument “that Jiminez and Robinson’s
conversations about transactions that did not materialize create[d] the inference
that the conspiracy involved at least five kilograms” of cocaine. Id. at 724
(“[A]ny additional request by Robinson of Jiminez would have pushed the total
drug quantity involved in the conspiracy over five kilograms. Viewing the
evidence in the light most favorable to the Government, . . . the inference that
more than five kilograms were involved is reasonable.”). Accordingly, the court
upheld Turner’s conviction, even though the government had direct evidence of
only a portion of the quantity of drugs charged.
      As in Arras and Turner, although the Government in this case lacked
direct evidence establishing that Gassett transported any particular quantity of
marijuana on March 1 and April 2, 2006, there was similarly sufficient
circumstantial evidence to support the jury’s verdict.         For example, the
Government repeatedly highlighted the considerable effort and expense those
trips involved, thereby raising the inference that Gassett undertook those trips
for the purpose of transporting a distributable amount of marijuana. Gassett
testified, for instance, that prior to his first trip, he met with Chavez–Ibarra to
obtain instructions regarding how the operation was to proceed. During that

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meeting, Chavez–Ibarra told Gassett that he had rented a car for Gassett to
drive from Wichita, Kansas to Odessa, Texas. Once Gassett arrived in Odessa,
he was to obtain, in his name, registration papers and license plates for an Isuzu
Rodeo (the “Rodeo”) that he understood was loaded with marijuana and waiting
for him in Mexico. From Odessa, Gassett was to take a bus to Presidio, Texas,
where Chavez–Ibarra had arranged for some of his associates to pick Gassett up
and take him into Mexico to retrieve the Rodeo. Evidence introduced by the
Government established that, aside from the compensation due Gassett for this
trip, Chavez–Ibarra also incurred the expenses related to it, including a fee of
nearly $700 for the rental vehicle Gassett drove to Odessa.
      Moreover, although Gassett did not state whether he had seen any drugs
in the vehicle during his first two trips, he testified that he proceeded as
Chavez–Ibarra instructed and that he operated with the understanding that the
Rodeo was loaded with marijuana. He further testified that, after obtaining the
Rodeo in Mexico, he drove to Wichita, Kansas and “dropped the first load off” at
an address previously provided to him.
      Gassett also explained that, after the first trip, he returned home with the
Rodeo where he awaited further instructions. According to his testimony, he
was directed just weeks later to return to Mexico to “pick up another load.”
Upon arriving in Mexico, with the same Rodeo he used during his first trip,
individuals connected to Chavez–Ibarra escorted Gassett to a motel room and
took possession of the vehicle. The Rodeo was not returned to Gassett until the
following morning, raising the inference that it was being loaded with drugs
during that period.
      To corroborate Gassett’s testimony, the Government introduced numerous
documents establishing that these activities took place as Gassett described.
Rental car records, for instance, showed that Chavez–Ibarra rented in Wichita,
Kansas the vehicle Gassett drove to Texas during his first trip. Border crossing

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records showed the Rodeo crossing into the United States from Mexico on March
1 and April 2, 2006. A speeding citation was issued by a Texas state trooper on
April 2, 2006 to Gassett’s wife who had accompanied him during his second trip
and was driving the Rodeo back into the United States. And, during Gassett’s
second and third trips, wire transfer receipts established that Chavez–Ibarra
wired money to Gassett in Odessa, Texas, for expenses related to the drug
trafficking activities.
      While Chavez–Ibarra emphasizes that he agreed to pay Gassett more for
the third trip than the first two—suggesting that Gassett was not transporting
any marijuana on the first two occasions—Gassett testified that the agreement
for increased compensation only arose after he complained to Chavez–Ibarra
that he was not being compensated commensurately with the “risk” he was
taking. Only in response to that complaint did Chavez–Ibarra agree that, if
Gassett made another trip, he would increase Gassett’s pay and give him the
Rodeo.
      Though circumstantial, the totality of this evidence supports the jury’s
conclusion that Gassett was transporting distributable amounts of marijuana
during the trips that took place on March 1 and April 2, 2006.
      As for establishing that the conspiracy involved at least 100 kilograms of
marijuana, as required for Counts One and Two, the Government demonstrated
at trial that at least four trips were undertaken at Chavez–Ibarra’s direction.
Two of the trips resulted in the seizure of sixty-five kilograms of marijuana:
thirty kilograms from the Rodeo Gassett was driving on April 16, 2006, and
thirty-five kilograms from the vehicle of the Nevinses on May 18, 2006.
Significantly, the Nevinses were apprehended with thirty-five kilograms of
marijuana during their first trip, raising the inference that significant quantities
of marijuana likewise were transported by Gassett during his first trip.
Furthermore, Gassett testified that he used the same vehicle during each of the

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three trips he completed for Chavez–Ibarra, suggesting that he transported
similar quantities of marijuana on each occasion. As noted, this testimony was
corroborated by border crossing records, which showed the Rodeo seized on April
16, 2006 also entering the United States from Mexico on March 1 and April 2,
2006. Moreover, Gassett also stated that when he arrived in Mexico, the Rodeo
was taken from him and not returned until the following day. From this
evidence, the jury could reasonably have inferred that the Rodeo was loaded
with similar quantities of marijuana during each of Gassett’s trips.
      Most importantly, the Government itself highlighted for the jury the lack
of direct evidence establishing the amount of marijuana Gassett transported
during his first two trips. After reminding the jury in his closing statement that
Gassett was not apprehended during those first two trips from Mexico, counsel
for the Government stated to the jury:
      [T]he Government would submit to you that those two prior loads
      were the same amount as the load that got busted, which was 30
      kilograms. If my math is correct, 30 on March 1, 30 on April 2nd, 30
      on April 16th, and 35 on May 1[8]th equals 125 kilograms.
Consistent with the indictment, the jury was properly instructed that to convict
Chavez–Ibarra of Counts One and Two, it had to find that the Government had
proven beyond a reasonable doubt “[t]hat the overall scope of the conspiracy
involved at least 100 kilograms” of marijuana. In other words, the jury was fully
aware that it needed to weigh the evidence regarding quantity to determine if
the Government had established beyond a reasonable doubt that the conspiracy
involved at least 100 kilograms of marijuana. Although the evidence on this
front was circumstantial, when viewed in the light most favorable to the
Government, we cannot say that the jury’s construction of the evidence was
unreasonable. Indeed, the jury’s conclusion that the conspiracy involved at least
100 kilograms of marijuana flowed from reasonable inferences and logical
reasoning.

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      Accordingly, as in Arras and Turner, the direct and circumstantial
evidence presented in this case provided a sufficient basis for the jury to convict
Chavez–Ibarra of Counts One through Six.
B. The Reasonableness of the Sentences
      As mentioned above, Chavez–Ibarra claims that the sentences imposed by
the district court for Counts One and Two were unreasonable. When considering
the sentence to impose on a defendant, 18 U.S.C. § 3553(a) requires a court to
“impose a sentence sufficient, but not greater than necessary, to comply with the
purposes set forth in paragraph (2) of this subsection.” Section 3553(a)(2) states
that the court must consider the need of the sentence imposed:
      (A) to reflect the seriousness of the offense, to promote respect for
      the law, and to provide just punishment for the offense;
      (B) to afford adequate deterrence to criminal conduct;
      (C) to protect the public from further crimes of the defendant; and
      (D) to provide the defendant with needed educational or vocational
      training, medical care, or other correctional treatment in the most
      effective manner.
      This court typically reviews the substantive reasonableness of a
defendant’s sentence under an abuse of discretion standard. See Gall v. United
States, 552 U.S. 38, 51 (2007). However, in the proceedings before the district
court, Chavez–Ibarra did not object to his sentences on reasonableness grounds,
so his claim on appeal that they were unreasonable is reviewed only for plain
error. See United States v. Peltier, 505 F.3d 389, 391–92 (5th Cir. 2007).6
Further, because Chavez–Ibarra’s sentences fall within the range recommended
by the sentencing guidelines, they are presumed to be reasonable. See United
States v. Camero–Renobato, 670 F.3d 633, 636 (5th Cir. 2012).
      Chavez–Ibarra was sentenced to 121 months of imprisonment for each of
Counts One and Two. He contends that a much shorter sentence would have

      6
       Chavez–Ibarra argues that no objection is required, but he concedes that this
argument is foreclosed in this circuit.

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achieved the goals of sentencing and that his 121-month sentences were
therefore unreasonable. He highlights that he had no criminal history, no prior
arrests, and that his crime was nonviolent. Chavez–Ibarra also asserts that he
“did not pose a danger to the public” and that the 60-month sentences imposed
for Counts Three through Ten “would have been sufficient to teach him not to
violate the law again.”
         Chavez–Ibarra’s arguments merely set out that he “disagree[s] with the
propriety of the sentence imposed,” which this court has held “does not suffice
to rebut the presumption of reasonableness that attaches to a within-guidelines
sentence.” United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010). Thus,
because the sentences imposed did not depart from the guidelines, were not
based on the consideration of inappropriate factors, and are entitled to “great
deference,” we decline Chavez–Ibarra’s request to vacate them. United States
v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). There is no error here, plain or
otherwise.
                               III. CONCLUSION
         For the reasons stated above, we AFFIRM the judgment of the district
court.




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