     Case: 12-40294       Document: 00512214592         Page: 1     Date Filed: 04/19/2013




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

                                                                            FILED
                                                                           April 19, 2013
                                     No. 12-40294
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

MARIA ABIGAIL CONTRERAS,

                                                   Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:11-CR-983-1


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       A jury convicted Maria Abigail Contreras for possessing with intent to
distribute more than 500 grams of methamphetamine and conspiring to do the
same. She contends that insufficient evidence supports those convictions and
argues that her sentence was substantively unreasonable. We disagree.


                                              I.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-40294

       “A challenge to the sufficiency of the evidence that is procedurally
preserved, as th[ese] challenge[s] w[ere], is reviewed de novo.”1


                                             A.
       “The offense of possession with the intent to distribute requires proof of (1)
possession, (2) knowledge, and (3) intent to distribute.”2 The trial evidence
showed that Contreras, who did not know how to drive, persuaded an
acquaintance to cross a black Ford Mustang into the United States. She then
recruited the acquaintance’s husband to drive the vehicle to Houston and
rebuffed his offer to use his pickup truck for the journey. When contraband was
discovered at a checkpoint, Contreras gave inconsistent statements about the
events that led to her presence in a vehicle loaded with approximately 4,716
kilograms of methamphetamine—a quantity worth at least $350,000. A witness
also testified that Contreras asked whether there would be dogs at the
checkpoint, suggesting a concern that drugs might be found in the vehicle. With
respect to the possession with intent to distribute conviction, this is evidence
enough.3


                                             B.
       To establish that a defendant was a member of a drug conspiracy, the
government must demonstrate “‘(1) an agreement between two or more persons



       1
        United States v. McElwee, 646 F.3d 328, 340 (5th Cir. 2011) (internal quotation marks
and citation omitted).
       2
        United States v. Vasquez, 677 F.3d 685, 694 (5th Cir. 2012). Contreras contends that
the government was required to prove that she knew the particular kind and quantity of
contraband involved in her offense. She acknowledges that United States v. Betancourt, 586
F.3d 303, 308–09 (5th Cir. 2009) forecloses this argument.
       3
        See Vasquez, 677 F.3d at 694–95 (discussing circumstantial evidence necessary to
infer knowledge of the presence of illegal drugs when those drugs are secreted in a hidden
compartment); see also United States v. Resio-Trejo, 45 F.3d 907, 911 (5th Cir. 1995) (same).

                                             2
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                                       No. 12-40294

to violate the narcotics laws, (2) the defendant's knowledge of the agreement,
and (3) the defendant's voluntary participation in the conspiracy.’”4 “[A] jury can
convict a defendant of conspiring with persons whose names are unknown”
where, as here, “the indictment charges a conspiracy with unknown persons and
evidence supports their existence and the existence of a conspiracy” with them.5
       Following her arrest, Contreras gave a statement indicating that she
obtained the Mustang from a person known to her as Jorge Alvarez, whom she
knew was engaged in illegal activity, including drug trafficking. Contreras
indicated in a statement that she was to be paid $800 for doing as Alvarez
wished, and, as discussed above, the evidence was sufficient to show that
Contreras had knowledge that the vehicle contained contraband. Although she
gave conflicting statements, the jury was free to believe those portions of
Contreras’s statements that established her knowing agreement with Alvarez
to violate the narcotics laws and her voluntary actions in accord with that
agreement.6 Accordingly, sufficient evidence supports her conspiracy conviction.


                                             II.
       The district court sentenced Contreras to 235 months of imprisonment,
five years of supervised release, and required her to pay a $200 special
assessment. We review for an abuse of discretion.7




       4
        United States v. Zamora, 661 F.3d 200, 209 (5th Cir. 2011) (quoting United States v.
Booker, 334 F.3d 406, 409 (5th Cir. 2003) (citation omitted)).
       5
        United States v. Villasenor, 894 F.2d 1422, 1428 (5th Cir. 1990) (quoting United States
v. Onick, 889 F.2d 1425, 1432 (5th Cir. 1989)) (internal quotation marks omitted).
       6
        See United States v. Jaramillo, 42 F.3d 920, 923 (5th Cir. 1995) abrogated on other
grounds by United States v. Vargas-Ocampo, 11-41363, 2013 WL 1022854 (5th Cir. Mar. 14,
2013).
       7
        See Gall v. United States, 552 U.S. 38, 51–52 (2007); United States v.
Delgado-Martinez, 564 F.3d 750, 752–53 (5th Cir. 2009).

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                                      No. 12-40294

       Contreras contends that her sentence is substantively unreasonable. She
argues that the district court gave too much weight to her guideline range, and
she asserts that a lesser sentence would have been sufficient to provide
deterrence and serve as just punishment. Contreras further contends that the
district court’s choice of sentence was influenced by improper factors.
       Although certain extraneous facts were discussed at sentencing, there is
no indication in the record that any such matter affected the district court’s
choice of sentence. Contreras has not made a showing sufficient to rebut the
presumption of reasonableness that attaches to her within-guidelines sentence.8
       AFFIRMED.




       8
         See Rita v. United States, 551 U.S. 338, 347–56 (2007); United States v. Cooks, 589
F.3d 173, 186 (5th Cir. 2009).

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