     Case: 10-50849   Document: 00511581575   Page: 1   Date Filed: 08/24/2011




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

                                                                  FILED
                                                               August 24, 2011
                                No. 10-50849
                              Summary Calendar                   Lyle W. Cayce
                                                                      Clerk

UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee
v.

JOSE ALFREDO PORRAS,

                                          Defendant-Appellant

Cons. w/No. 10-50853

UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee
v.

JOSE ALFREDO PORRAS-MUNIZ, also known as Jose Alfredo Porras,

                                          Defendant-Appellant


                 Appeals from the United States District Court
                       for the Western District of Texas
                           USDC No. 4:09-CR-339-01
   Case: 10-50849       Document: 00511581575         Page: 2     Date Filed: 08/24/2011

                                      No. 10-50849
                                    c/w No. 10-50853

Before BENAVIDES, STEWART and CLEMENT, Circuit Judges.
PER CURIAM:*
       Jose Alfredo Porras appeals his jury-trial conviction, and subsequent
sentence, for two counts of possession with intent to distribute marijuana, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(A), (b)(1)(D), and two counts of aiding
and abetting, in violation of 18 U.S.C. § 2, in two separate cases, which were
consolidated for trial. He was sentenced to concurrent sentences of 60 months
of imprisonment on one count and 235 months of imprisonment on the other
count.
       Porras contends that (1) the Government failed to produce sufficient
evidence in support of his convictions for possession with intent to distribute
marijuana; (2) the district court erred in calculating the amount of marijuana
involved; (3) the district court erred in applying an obstruction-of-justice
enhancement; (4) the district court erred in applying a leadership enhancement;
(5) his sentence was greater than necessary to achieve the goals of the
sentencing factors; and (6) his sentence was disproportionately greater than his
codefendants.
       The standard of review for a sufficiency claim is “whether any reasonable
trier of fact could have found that the evidence established the appellant’s guilt
beyond a reasonable doubt.” United States v. Jaramillo, 42 F.3d 920, 922-23
(5th Cir. 1995) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). To prove
possession of a controlled substance with intent to distribute, the Government
must establish (1) knowledge, (2) possession, and (3) intent to distribute the
controlled substance. United States v. Solis, 299 F.3d 420, 446 (5th Cir. 2002).




       *
         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. 10-50849
                                c/w No. 10-50853

      The evidence at trial showed that Porras recruited and paid his girlfriend
to smuggle marijuana into the United States from Mexico. Porras also drove a
codefendant to Ojinaga, Mexico, so that he could transport marijuana loads into
the United States, including a 3,000-pound marijuana load that resulted in the
codefendant’s arrest. Porras provided the codefendant with a cell phone and
acted as his scout while he was transporting loads, alerting him to the presence
of law enforcement. Accordingly, the evidence was sufficient for the jury to find
every element of the offenses beyond a reasonable doubt. See Jaramillo, 42 F.3d
at 922-23. Porras’s assertion that the witnesses against him were not credible
is without merit because this court will not second guess a jury or substitute its
own views on the credibility of the witnesses for those held by the jury. See
United States v. Guidry, 406 F.3d 314, 318 (5th Cir. 2005).
      Porras next complains that the district court erred in determining that he
was responsible for 5,721.6 kilograms of marijuana. We review the district
court’s interpretation and application of the Guidelines de novo and its factual
findings for clear error. United States v. Gonzalez, 445 F.3d 815, 817 (5th Cir.
2006). The district court did not clearly err in this regard.
      The presentence report (PSR) provided that the total amount of marijuana
consisted of 34.9 kilograms that were seized from Porras’s girlfriend on the day
of her arrest and an additional 34.9 kilograms from an earlier load; the amount
of the earlier load was estimated based on the fact that she used the same
vehicle, and was to be paid the same amount, for both loads. The total amount
of marijuana also consisted of 1,412.95 kilograms that were seized from the
codefendant on the day of his arrest and an additional three loads, each
weighing 1,412.95 kilograms, which was estimated based on the fact that he
stated that each of his three prior loads were larger than the load that was
seized.   Porras did not present any evidence refuting these findings.        See
generally United States v. Ollison, 555 F.3d 152, 164 (5th Cir. 2009) (noting that

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                                  No. 10-50849
                                c/w No. 10-50853

the PSR bears sufficient indicia of reliability for the district court to rely upon
at sentencing; defendant has the burden of showing that the PSR is inaccurate).
Thus, the district court did not clearly err in holding Porras responsible for his
relevant conduct with respect to the transportation of the prior loads, see United
States v. Moore, 927 F.2d 825, 827-28 (5th Cir. 1991) (holding that evidence
supporting that defendant was engaged in continuing enterprise involving the
same type of drug supported counting as relevant conduct the drugs involved in
earlier incidents), or in determining the total amount of marijuana for
sentencing purposes.
      Porras’s next argument, that the court clearly erred in applying an
enhancement for obstruction of justice, pursuant to U.S.S.G. § 3C1.1, fails. The
district court determined that Porras suborned his brother’s false testimony that
their uncle lived in the area in which Porras was arrested and that the
testimony was material because it justified Porras’s presence in an area that was
frequently used by drug-traffickers and their scouts. The court did not clearly
err in this regard, see United States v. Dunnigan, 507 U.S. 87, 94 (1993); see also
18 U.S.C. § 1622, and the district court’s factual findings were sufficient to
encompass the elements of subornation of perjury. See Dunnigan, 507 U.S. at
95.
      The district court likewise did not clearly err in applying a leadership
enhancement pursuant to U.S.S.G. § 3B1.1(c). Porras recruited his girlfriend to
smuggle marijuana and another codefendant to assist in the smuggling
operation, and Porras paid her after she successfully transported a load.
Additionally, Porras provided one codefendant’s transportation to Ojinaga,
provided him with a cell phone, and “took care of [him] on the road” during all
drug runs. This evidence supports the district court’s finding that Porras acted
as a leader or organizer. See United States v. Villanueva, 408 F.3d 193, 204 (5th



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                                   No. 10-50849
                                 c/w No. 10-50853

Cir. 2005) (affirming leadership enhancement because, inter alia, defendant
recruited and hired a driver to smuggle aliens).
      Porras next complains that several factors, including his lack of criminal
history, his military service, his post-traumatic stress disorder, his close familial
ties, his history of alcohol and drug abuse, and his stable work history,
supported a lesser sentence. This argument is without merit because he has not
overcome the presumption that his within-guidelines sentence is reasonable. See
United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008).
      Finally, Porras’s argument that his sentence was greatly disproportionate
to his codefendants’ sentences is unavailing. His codefendants pleaded guilty
and cooperated with law enforcement; Porras thus cannot show a sentencing
disparity among similarly-situated codefendants. See United States v. Candia,
454 F.3d 468, 476 (5th Cir. 2006).
      AFFIRMED.




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