     Case: 18-10440      Document: 00514849601         Page: 1    Date Filed: 02/25/2019




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

                                    No. 18-10440                                  FILED
                                  Summary Calendar                        February 25, 2019
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOSE SANTILLAN,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 2:17-CR-29-1


Before BENAVIDES, HAYNES, and WILLETT, Circuit Judges.
PER CURIAM: *
       Jose Santillan appeals from his jury verdict conviction for conspiracy to
distribute and possess with intent to distribute 50 grams or more of
methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1), and
(b)(1)(A)(viii). The district court sentenced Santillan to a within-guidelines
term of 212 months of imprisonment, followed by five years of supervised
release.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-10440

      On appeal, Santillan argues that the evidence produced at trial was
insufficient to support the jury’s verdict because a cooperating co-conspirator’s
testimony that Santillan was his source for methamphetamine was incredible
and uncorroborated. Because his challenge is preserved, it is subject to de novo
review. See United States v. Frye, 489 F.3d 201, 207 (5th Cir. 2007); United
States v. Resio-Trejo, 45 F.3d 907, 910 n.6 (5th Cir. 1995).       We view “all
evidence, whether circumstantial or direct, in the light most favorable to the
Government with all reasonable inferences to be made in support of the jury’s
verdict.” United States v. Moser, 123 F.3d 813, 819 (5th Cir. 1997).
      Unless it is factually insubstantial or incredible, a co-conspirator’s
uncorroborated testimony may be constitutionally sufficient evidence to
convict, even if the co-conspirator is cooperating with the government in
exchange for leniency. United States v. Turner, 319 F.3d 716, 721 (5th Cir.
2003).    Testimony is not “incredible as a matter of law unless it is so
unbelievable on its face that it defies physical laws.” United States v. Gardea
Carrasco, 830 F.2d 41, 44 (5th Cir. 1987) (internal quotation marks and
citation omitted). Our examination of the record does not support Santillan’s
characterization of the co-conspirator’s testimony as factually insubstantial or
incredible.   Moreover, the record also contains circumstantial evidence
showing that Santillan was the methamphetamine supplier for an undercover
officer’s controlled purchase from the co-conspirator.
      Next, Santillan contends that the district court erred by attributing to
him as relevant conduct a quantity of methamphetamine seized in New
Mexico.    He asserts that this constituted error because (1) there was no
evidence linking him to that shipment, and (2) the New Mexico shipment did
not meet any of the criteria set forth in U.S.S.G. § 1B1.3(a)(1) or (2). We
generally review a district court’s finding regarding the applicable drug



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                                  No. 18-10440

quantity for clear error and will affirm the finding as long as it is plausible in
light of the record as a whole. United States v. Betancourt, 422 F.3d 240, 246
(5th Cir. 2005). “[T]he district court need only determine its factual findings
at sentencing by a preponderance of the relevant and sufficiently reliable
evidence.”   United States v. Hinojosa, 749 F.3d 407, 415 (5th Cir. 2014)
(internal quotation marks and citation omitted). Because there was reliable
evidence linking Santillan to the New Mexico shipment, the record supports
the district court’s finding in this regard. See id.
      Plain error review applies to the second aspect of Santillan’s challenge
to the New Mexico shipment’s inclusion as relevant conduct because Santillan
did not object on this specific basis in district court. See Puckett v. United
States, 556 U.S. 129, 135 (2009); United States v. Neal, 578 F.3d 270, 272 (5th
Cir. 2009). Under that standard of review, Santillan must show an error that
is clear or obvious–rather than subject to reasonable dispute–and affects his
substantial rights. See Puckett, 556 U.S. at 135. If he makes that showing, we
have the discretion to correct the error only if it “seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id. (internal quotation
marks, brackets and citation omitted). Because a determination of relevant
conduct is a finding of fact capable of resolution by the district court,
Santillan’s unpreserved challenge cannot meet the plain-error standard of
review. See United States v. McCaskey, 9 F.3d 368, 376 (5th Cir. 1993). In any
event, our examination of the indictment, as well as the evidence produced at
trial and at sentencing, does not reveal any clear or obvious error as to the
inclusion of the New Mexico shipment as relevant conduct under § 1B1.3(a).
       The judgment of the district court is AFFIRMED.




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