     Case: 12-40105       Document: 00512098498         Page: 1     Date Filed: 01/02/2013




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

                                                                            FILED
                                                                          January 2, 2013
                                     No. 12-40105
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

REYNA OSORIO MARTINEZ, also known as Reyna Osorio De Vasquez,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:11-CR-444-1


Before REAVLEY, JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
       Reyna Osorio Martinez appeals her convictions for conspiracy to possess
with intent to distribute more than 50 grams of methamphetamine, possession
with intent to distribute more than 50 grams of methamphetamine, conspiracy
to import more than 50 grams of methamphetamine, and importation of more
than 50 grams of methamphetamine. She was sentenced to 235 months of
imprisonment and five years of supervised release on all counts to run
concurrently. On appeal, she contends that she did not voluntarily waive her

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-40105

Miranda1 rights and that there is insufficient evidence that she knew that the
vehicle she was a passenger in contained a controlled substance. She also
contends that 235 months of imprisonment is greater than necessary to satisfy
the 18 U.S.C. § 3553(a) factors in light of her advanced age, poor health, lack of
criminal history, and rehabilitation efforts and because she did not receive the
benefit of a safety-valve or minimal-participant reduction under the Sentencing
Guidelines.
      The district court did not err by determining that Osorio Martinez
voluntarily waived her Miranda rights. See United States v. Montes, 602 F.3d
381, 384 (5th Cir. 2010); United States v. Hearn, 563 F.3d 95, 104 (5th Cir. 2009).
The agents involved in questioning Osorio Martinez consistently testified that
the form containing the Miranda waiver was read in Spanish to her, she
indicated that she understood the waiver, she did not appear to be confused
about the waiver, she was given an opportunity to review the Spanish-language
form containing the waiver, she signed the form, and no one threatened her
regarding the form. Although one agent testified inconsistently regarding
whether anyone had spoken to him about his testimony, that agent’s testimony
regarding the voluntariness of the waiver was corroborated by the testimony of
the other agents.
      Because Osorio Martinez failed to move for a judgment of acquittal at the
close of all the evidence, we review the sufficiency of the evidence under the
plain error standard to determine whether there has been a manifest
miscarriage of justice. See United States v. Delgado, 672 F.3d 320, 328-31 & n.9
(5th Cir. 2012) (en banc), cert. denied, 2012 WL 1899424 (Oct. 29, 2012) (No.
11-10492. The record is not devoid of evidence that Osorio Martinez knew that
the vehicle she was a passenger in contained a controlled substance. See id. at
331. The recently purchased vehicle contained a high value of narcotics hidden


      1
          Miranda v. Arizona, 384 U.S. 436 (1966).

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                                  No. 12-40105

in a false compartment. She told agents that the vehicle belonged to her son-in-
law, but the vehicle was not registered in her son-in-law’s name, and she
admitted to the driver of the vehicle that she fabricated that story. She told
agents that she had known the driver, through the driver’s mother, for several
years, but the driver denied that Osorio Martinez had previously known her or
her mother. The driver’s testimony was substantiated by Osorio Martinez’s
inability to identify the driver’s mother from a photograph. Immigration records
revealed that Osorio Martinez had entered the United States in the same vehicle
three times before. Osorio Martinez had been driven in this vehicle by a person
who was later arrested for bringing methamphetamine into the United States.
During the prior trips, Osorio Martinez maintained close contact with the person
directing her and the driver’s activities, she relinquished possession of the
vehicle for extended periods of time, and she did not spend any or much time
with her family, the stated purpose of the trips.
      We review the substantive reasonableness of a sentence for abuse of
discretion. Gall v. United States, 552 U.S. 38, 51 (2007). The district court
imposed a within-guidelines sentence of 235 months of imprisonment based on
the seriousness of the offense and the extent of Osorio Martinez’s participation
in the offense. The district court reviewed the evidence presented at trial and
rejected as incredible and implausible Osorio Martinez’s protestations of
innocence. The district court was aware of the mitigating factors pointed to by
Osorio Martinez but gave more weight to the seriousness of the offense and her
role in it. Osorio Martinez has not demonstrated that the district court failed to
give the proper weight to any particular § 3553(a) factor or that her sentence
“represents a clear error of judgment in balancing sentencing factors.” United
States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). Therefore, she has failed to
rebut the presumption of reasonableness that we accord to her within-guidelines
sentence. See id.
      The judgment of the district court is AFFIRMED.

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