     Case: 10-50940     Document: 00511825406         Page: 1     Date Filed: 04/17/2012




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

                                                                            FILED
                                                                           April 17, 2012
                                       No. 10-50940
                                                                           Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee
v.

JOSE LUIS CEBALLOS-AMAYA;
MISAEL PERALTA-LONGORIA

                                                  Defendants-Appellants



                  Appeals from the United States District Court
                        for the Western District of Texas
                             USDC No. 10-cr-00063


Before BENAVIDES, STEWART, and GRAVES, Circuit Judges.
PER CURIAM:*
        Jose Luis Ceballos-Amaya (Ceballos) and Misael Peralta-Longoria
(Peralta) were indicted for one count of aiding and abetting the possession with
intent to distribute 100-1000 kilograms of marijuana and one count of aiding
and abetting the possession with intent to distribute 50-100 kilograms of
marijuana. A jury found them guilty as charged. Ceballos appeals, challenging


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-50940

the sufficiency of the evidence to support his convictions.        Ceballos also
challenges his sentence, arguing that the district court erred in applying an
enhancement for obstruction of justice and an enhancement based on his
leadership role in the offense. Peralta appeals only his sentence, arguing that
the district court erred in applying an enhancement for obstruction of justice.
We find the evidence sufficient to sustain Ceballos’s convictions and AFFIRM his
convictions. Finding no reversible error, we AFFIRM Ceballos’s sentence.
Concluding that the district court clearly erred in applying an enhancement for
obstruction of justice, we VACATE and REMAND Peralta’s sentences for re-
sentencing.
      I.      FACTUAL AND PROCEDURAL HISTORY
      On April 9, 2009, Border Patrol Agent Jason Denman (Agent Denman)
was traveling down Highway 170 and observed a black Tahoe and a white Ford
pickup truck traveling in tandem. Subsequently, Agent Denman conducted a
stop of the Ford, while Border Patrol Agent Steve Randall (Agent Randall)
conducted a stop of the Tahoe.
      The driver of the Ford, identified as Gilbert Vasquez, was the only
occupant of the vehicle. The vehicle was taken to the Presidio, Texas station to
be searched, and marijuana was discovered hidden in the fuel tank. Agent
Randall testified that he ran a license plate check on the Tahoe and discovered
that the vehicle was registered to Cesar Pinedo. The vehicle and the driver,
Bruce McGraw (McGraw), were likewise taken to the Presidio station.
Marijuana was found in the vehicle. The amount of marijuana found in both
vehicles totaled 89.6 kilograms.
      At the trial in the instant case, Vasquez testified that he met Cesar Pinedo
(Pinedo) and an individual identified only as Abraham, when they worked at
F & W Coating. Subsequently, Abraham called Vasquez to offer him work.
Abraham arrived at Vasquez’s house with two other men to discuss the offer. In

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                                  No. 10-50940

court, Vasquez identified Ceballos, previously known to him only as “Loco,” as
one of the two men with Abraham. Vasquez also identified Peralta as the other
man accompanying Abraham. Abraham told Vasquez that he would give him a
white Ford pickup truck and money in exchange for Vasquez coming to Ojinaga,
Chihuahua, Mexico, and hauling loads of marijuana across the border. Ceballos
was “involved” and “participat[ed] in” this conversation.
        Subsequently, Abraham and Peralta brought the truck to Vasquez.
Vasquez and McGraw then traveled to Ojinaga. After they crossed the border,
Vasquez called Abraham. Abraham arrived in the black Tahoe with Pinedo and
Ceballos and took Vasquez and McGraw to a motel outside of Ojinaga. Vasquez
testified that Ceballos, Abraham, and Pinedo stayed in the same motel.
        On April 8, 2009, Peralta arrived and picked up the truck. Abraham
instructed Vasquez and McGraw to remain in the motel because Peralta did not
want them to leave “because of the soldiers that were running around there in
Ojinaga.” Vasquez also testified that Ceballos and the other men were “keeping
an eye on”him while they were staying at the motel, waiting for the truck that
was to be used to drive a load of marijuana. Further, Ceballos was with
Abraham at the motel when Abraham told Vasquez “to calm down, that they
would have the truck ready.”
        On April 9, 2009, at approximately noon, Peralta arrived at the motel and
traveled with Vasquez in the Tahoe over the border. Peralta instructed Vasquez
to meet him, Ceballos, Abraham, and Cesar in Odessa, where Vasquez would be
paid.    Pinedo traveled in the Ford with McGraw and another individual
identified only as Mingo. Peralta, Pinedo, and Mingo then left the vehicles and
returned to Mexico. Vasquez and McGraw separately drove away in the two
vehicles but did not travel far before they encountered Border Patrol and were
arrested as set forth above.



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      With respect to the second offense, on the afternoon of January 29, 2010,
Border Patrol Agent Alexander Medina testified that he was working at the
primary checkpoint in Marfa, when he encountered a suspicious white GMC
tractor-trailer. Billy Wayne King (King) was identified as the driver and sole
occupant of the truck. During a subsequent search, the vehicle was found to
contain marijuana weighing 280.45 kilograms. Border Patrol Agent Ismael
Fernandez (Agent Fernandez) of the DEA Task Force asked King whether he
would be willing to cooperate in a controlled delivery operation. King agreed,
and his phone calls were recorded. As instructed by the agents, King explained
his travel delay to the intended recipients of the marijuana, who were later
identified as Ceballos and Peralta, by stating that the vehicle had mechanical
problems. Ceballos then wired $100 to King so that he could have the vehicle
repaired.
      Ceballos instructed King to meet them at an Odessa convenience store
called Stripes. King and law enforcement authorities separately arrived at
Stripes. Ceballos then instructed King to move the delivery to Church’s Chicken
Restaurant. After King moved to Church’s Chicken, Ceballos asked him to move
the truck again but was instructed by agents to say that the truck was
inoperable. Shortly thereafter, Ceballos and Peralta met King at Church’s
Chicken. Ceballos opened the hood of King’s vehicle and looked at the engine.
After a minute or two, King started the truck. Ceballos entered King’s truck,
and Peralta returned to his truck.
      At that point, the authorities decided to end the operation and activated
lights and sirens. Peralta took off at a high rate of speed but was soon stopped.
Ceballos and King were blocked from attempting to escape. After he was
arrested, Peralta provided a statement in which he admitted that he knew the
truck contained drugs but denied knowledge as to the type of drug. Ceballos
denied any knowledge of the drugs.

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       The recorded phone conversations were presented to the jury. Agent
Fernandez explained that the voices were identifiable once he heard Peralta and
Ceballos speak. In one phone call, Ceballos identified himself as the individual
who would be receiving the truck. In another call, the wire transfer from
Ceballos was discussed. In a subsequent call, Ceballos instructed King to go to
Stripes. Sergeant Sean Roach of the Brewster County Sheriff’s Office testified
that he reviewed King’s cell phone and the phone that Ceballos was using. The
two phones showed calls to each other. At the close of the Government’s case,
both defendants moved for judgments of acquittal, and the court denied the
motions.
       Ceballos presented the testimony of his wife, Lilliana Ceballos-Amaya.1
She stated that her mother lives in Ojinaga, and her sister is married to Peralta.
On the day of Ceballos’s arrest, Lilliana testified that she and Ceballos had
previously been at a birthday party at a Mr. Gatti’s in Odessa for Peralta’s
daughter. Lilliana testified that at the time of his arrest Ceballos was working
two jobs.
       Ceballos testified in his own defense. In April of 2009, he and his wife had
driven to Mexico to stay with his mother-in-law and father-in-law, who lived in
Ojinaga. While in Ojinaga, Ceballos saw Abraham, whom he had known from
high school. Ceballos admitted that he went to the motel where Vasquez was
staying because Abraham had told him that they were “partying at this motel.”
However, he denied staying overnight and claimed no knowledge of the
marijuana. He claimed he cut his family vacation in Mexico short when Pinedo
asked Peralta and Ceballos for a ride back to Odessa to report Pinedo’s vehicle
stolen. On April 9, 2009, Ceballos, Peralta, Abraham, and Pinedo drove back
to Odessa together in one vehicle. Ceballos claimed that he had his wife ride

       1
         Although Lilliana is referred to as Ceballos’s wife, during her testimony she stated
that they were not married but were “just living together.”

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back with her sister to Odessa because he did not want his wife riding with
Abraham and Pinedo.
      Ceballos further testified that on January 29, 2010, he was getting ready
to go to a birthday party for Peralta’s daughter when Peralta called him. Peralta
said that his cousin had called from Mexico, asking Peralta to go and help his
friend whose truck had broken down in Alpine. The friend was later identified
as King. Peralta asked Ceballos to go with him to Alpine, and Ceballos agreed.
Peralta called again because he had changed his mind and did not want to drive
to Alpine. Instead, he asked Ceballos to wire King $100 to have the truck
repaired, and Ceballos did so.
      After Ceballos and his wife attended the birthday party, he and Peralta
went to Walmart to buy some medicine for Peralta’s child. While they were
driving to a Walmart in Odessa, Peralta received a phone call from King.
Because Peralta did not speak English, and King did not speak Spanish, Peralta
asked Ceballos to assist him in translating the phone call. When Ceballos took
the phone, King asked who he was, and Ceballos responded “I’m the one who’s
going to receive” the truck. Ceballos testified that he “was going to receive it as
like receive it to fix it.” He further testified that he “never said [he] was going
to receive the marijuana.” Ceballos admitted to speaking with King numerous
times on Peralta’s phone. Ceballos testified that he changed the dropoff location
from Stripes to Church’s Chicken because he intended to take the truck to
Peralta’s friend’s house to fix it. Ceballos knew that after he and Peralta were
arrested Peralta had admitted that he knew there were drugs in the truck.
Ceballos, however, claimed he had no knowledge of the drugs.
      Mabel Peralta (Mabel) testified that she was Peralta’s wife. She stated
that they had lived in Odessa and in June 2009, the family moved to Ojinaga.
On January 29, 2010, after having moved back to Odessa, their daughter’s



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                                  No. 10-50940

birthday party was held at Mr. Gatti’s. After the party, Peralta and Ceballos
went to Wal-Mart at her request to purchase “milk and stuff” for the children.
      At the close of all evidence, both defendants again moved for an acquittal,
and the district court denied the motions. The jury returned a verdict, finding
both defendants guilty on both counts.
      Ceballos’s presentence report (PSR) assessed a base offense level of 26.
The PSR recommended a four-level increase for being a leader or organizer and
a two-level increase for obstruction of justice. Therefore, Ceballos’s total offense
level was calculated at 32.      Ceballos objected to both adjustments.        The
Government responded, arguing that a two-level increase for being a manager
or supervisor was more appropriate in the case. The district court agreed with
the Government, finding a two-level increase under U.S.S.G. § 3B1.1(c) was
proper.   The objection to the enhancement for obstruction of justice was
overruled. Ceballos’s total offense level was recalculated to 30. This offense
level, combined with a Category III criminal history score, resulted in a
guidelines range of 121-151 months. The district court sentenced Ceballos to
concurrent terms of 121 months, to be followed by a total of five years of
supervised release. Ceballos filed a timely notice of appeal.
      Peralta’s PSR assessed a base offense level of 26. He also received a
four-level increase for being a leader or organizer and a two-level increase for
obstruction of justice. His total offense level of 32, combined with a Category I
criminal history score, yielded a guidelines range of 121-151 months. Peralta
objected to both of the adjustments. The district court overruled Peralta’s
objections. Peralta was sentenced to concurrent terms of 121 months, to be
followed by a total of five years of supervised release. Peralta filed a timely
notice of appeal.




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      II.   ANALYSIS
            A.      Sufficiency of the Evidence (Ceballos only)
      Ceballos argues that the evidence presented at trial was insufficient to
support his conviction. Ceballos moved for a judgment of acquittal at the close
of the Government’s case and again at the close of all the evidence. Accordingly,
he preserved the issue for appellate review, and we review his challenge to the
sufficiency of the evidence de novo. See United States v. Ollison, 555 F.3d 152,
158 (5th Cir. 2009).
      This Court will uphold a jury’s verdict if a rational trier of fact could
conclude that “the elements of the offense were established beyond a reasonable
doubt, viewing the evidence in the light most favorable to the verdict and
drawing all reasonable inferences from the evidence to support the verdict.”
United States v. Percel, 553 F.3d 903, 910 (5th Cir. 2008) (internal quotation
marks and citation omitted). Direct and circumstantial evidence are weighed
equally, and it is not necessary that the evidence exclude every reasonable
hypothesis of innocence. United States v. Mendoza, 226 F.3d 340, 343 (5th Cir.
2000). This Court does “not weigh evidence or assess the credibility of witnesses,
and the jury is free to choose among reasonable constructions of the evidence.”
United States v. Ramos-Cardenas, 524 F.3d 600, 605 (5th Cir. 2008).
      “To sustain a conviction for possession of marijuana with intent to
distribute, the government must prove beyond a reasonable doubt (1) knowing
(2) possession of marijuana (3) with intent to distribute it.” United States v.
Ricardo, 472 F.3d 277, 282-83 (5th Cir. 2006) (internal quotation marks and
citation omitted). To prove aiding and abetting, the Government must establish
that the defendant “(1) associated with the criminal venture; (2) purposefully
participated in the crime; and (3) sought by his actions for it to succeed.” United
States v. Pando Franco, 503 F.3d 389, 394 (5th Cir. 2007). To satisfy the
association element, the Government must show that the defendant shared in

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                                 No. 10-50940

the criminal intent of the principal. Participation requires that the defendant
engaged in some affirmative conduct designed to aid the venture or to assist the
principal.
      The Government need not prove that the defendant committed all
elements of the substantive underlying offense if he aided and abetted each
element. United States v. Aguirre Aguirre, 716 F.2d 293, 298 (5th Cir. 1983).
Thus, a defendant “need not have actual or constructive possession of the drugs
to be guilty of aiding and abetting possession with intent to distribute.” United
States v. Williams, 985 F.2d 749, 753 (5th Cir. 1993). Although a defendant’s
mere presence at the scene of a crime does not establish aiding and abetting,
“the jury may consider presence and association as factors in determining
whether the defendant is guilty of aiding and abetting.” Id.
      Ceballos argues that there was no evidence that he actually or
constructively possessed the marijuana and that there was no evidence of shared
intent. However, if the Government proved that Ceballos aided and abetted
each element of the offense, it need not prove that Ceballos was in actual or
constructive possession of the marijuana. See Williams, 985 F.2d at 753.
      With respect to the April 2009 offense, Vasquez testified that Ceballos was
present with Abraham and Peralta when they drove to his house and presented
him with the proposition to make money by hauling loads of marijuana across
the border. Ceballos was “involved” and “participat[ed] in” this conversation.
Ceballos was also at the motel in Ojinaga. Ceballos admitted to encountering
Vasquez at the motel. Vasquez also testified that Ceballos was “keeping an eye
on”him while they were staying at the motel, waiting for the truck that was to
be used to drive a load of marijuana. Further, Ceballos was with Abraham at
the motel when Abraham told Vasquez “to calm down, that they would have the
truck ready.” Ceballos’s actions in assisting to recruit Vasquez and in watching
over him at the motel show that he shared in the criminal intent and engaged

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in affirmative conduct to help the venture succeed. See Pando Franco, 503 F.3d
at 394.2
       Additionally, Ceballo’s testimony attempting to explain why he supposedly
cut his family vacation short and rode back to the United States on April 9, 2009,
with Abraham, Peralta, and Pinedo instead of driving back with his family is
rather implausible. The jury was free to reject Ceballos’s testimony that on
April 9, 2009, he rode back to the States with these men after Pinedo asked them
for a ride because Pinedo’s truck had been stolen. Ceballos’s implausible
testimony is circumstantial evidence of guilty knowledge. United States v.
Ortega Reyna, 148 F.3d 540, 544 & n.17 (5th Cir. 1998). The jury clearly did not
find Ceballos to be credible and thus was free to reject his testimony.
       With regard to the January 2010 incident, the evidence established that
Ceballos spoke with King numerous times on the phone to set the location for the
delivery. The recorded telephone calls revealed that Ceballos identified himself
as the one who would “receive” the truck. Once King arrived at Stripes, Ceballos
changed the location to a Church’s Chicken Restaurant. Ceballos testified that
he changed the location to the restaurant because it would be easier for King to
locate.    However, this explanation does not make sense because Ceballos
changed the location from Stripes to Church’s Chicken after King had
successfully arrived at Stripes. Additionally, Ceballos attempted to change the
location a second time. In sharp contrast to Ceballos’s explanation, Sergeant
Roach testified that during controlled drug deliveries subjects will often change
the location of the meeting place. The subjects would have “counter surveillance

       2
          The dissent apparently discounts Vasquez’s testimony because he did not testify as
to Ceballos’s specific statements and also parses through Vasquez’s testimony attempting to
cast doubt as to Vasquez’s identification of Ceballos. Dissent at 2-4 & n.2. Further, the
dissent attempts to discredit Vasquez’s testimony because he had been drinking alcohol when
he observed Ceballos at the hotel. Id. at 4. “It is not our role, however, under our standard of
review for sufficiency of the evidence, to second-guess the determinations of the jury as to the
credibility of the evidence.” United States v. Guidry, 406 F.3d 314, 318 (5th Cir. 2005).

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in place to see how many people follow to the new location.” This tactic is
referred to as a “heat run,” which is used to determine whether law enforcement
officers are observing the transaction. The jury was free to reject Ceballos’s
explanation and credit Sergeant Roach’s interpretation of Ceballos’s actions.
      Moreover, during one of the phone calls Ceballos referred to himself as the
person to “receive” the truck. The jury was free to disbelieve his explanation
that “receive” the vehicle meant “fix” the vehicle.
      Ceballos admitted to speaking with King numerous times during the day
and arranging to meet him. Ceballos’s actions in exiting the vehicle with Peralta
at Church’s Chicken, speaking on the phone with King, wiring money to King,
referring to himself as the person who would “receive” the vehicle, and entering
the vehicle with King all indicate that he was actively participating in the
venture. See Pando Franco, 503 F.3d at 394. Ceballos’s story reasonably could
have been rejected by the jury as implausible. See United States v. Resio-Trejo,
45 F.3d 907, 911 (5th Cir. 1995) (resolving credibility determinations in favor of
the verdict). There was sufficient evidence that Ceballos participated in the
offense and shared in the intent to possess marijuana with the intent to
distribute it. See Pando Franco, 503 F.3d at 393-94. Thus, viewing the evidence
in the light most favorable to the verdict, a rational trier of fact could have found
Ceballos guilty beyond a reasonable doubt. See Percel, 553 F.3d at 910.
             B.    Enhancement for Leadership Role (Ceballos only)
      Ceballos argues that the district court erred in applying a two-level
leadership enhancement under § 3B1.1(c). He contends that the district court,
in making the determination to apply the enhancement, relied on evidence in the
PSR that was not presented at trial. He further asserts that the evidence in the
record shows only that he acted at the direction of Peralta.
      Following United States v. Booker, 543 U.S. 220 (2005), sentences are
reviewed for reasonableness in light of the sentencing factors in 18 U.S.C.

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§ 3553(a).   United States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005).
Pursuant to Gall v. United States, 552 U.S. 38, 51 (2007), we must determine
whether the sentence imposed is procedurally sound, including whether the
calculation of the advisory guidelines range is correct, and whether the sentence
imposed is substantively reasonable. Review of the sentence’s reasonableness
is for an abuse of discretion. Id. We review the district court’s interpretation
and application of the Sentencing Guidelines de novo and its findings of fact for
clear error. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.
2008).
      Section 3B1.1(c) provides for a two-level enhancement if the defendant is
an organizer, leader, manager or supervisor of criminal activity.             The
commentary provides that a defendant qualifies for a § 3B1.1 enhancement if he
was the organizer, leader, manager, or supervisor of one or more other
participants. § 3B1.1, comment. (n.2). In determining whether a defendant had
a leadership role, a court should consider the following factors:
            the exercise of decision making authority, the nature of
      participation in the commission of the offense, the recruitment of
      accomplices, the claimed right to a larger share of the fruits of the
      crime, the degree of participation in planning or organizing the
      offense, the nature and scope of the illegal activity, and the degree
      of control and authority exercised over others.

Id., comment. (n.4).
      The PSR indicated that Ceballos identified himself as belonging to La
Linea, a drug organization based in Mexico. Ceballos assisted in recruiting
Vasquez. Additionally, Ceballos directed King to locations for delivery of the
marijuana.
      The district court found that the leadership enhancement was warranted
because Vasquez indicated that Ceballos was part of the group who recruited
him. Ceballos identified himself as working for a drug organization known as


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La Linea. Additionally, McGraw met with Ceballos, who assisted in recruiting
and directing him. The district court noted that the information in the PSR
supported his decision.
      In determining a defendant’s role in the offense, “a district court may
adopt the facts contained in a PSR without further inquiry if those facts have an
adequate evidentiary basis with sufficient indicia of reliability and the defendant
does not present rebuttal evidence or otherwise demonstrate that the
information in the PSR is unreliable.” United States v. Cabrera, 288 F.3d 163,
173-74 (5th Cir. 2002). Additionally, “a district court is permitted to draw
reasonable inferences from the facts, and these inferences are fact-findings
reviewed for clear error.” United States v. Caldwell, 448 F.3d 287, 290 (5th Cir.
2006).
      The record supports the district court’s application of the leadership
enhancement under § 3B1.1(c). Ceballos recruited Vasquez and wired $100 to
King to facilitate the transfer of a load. Additionally, Ceballos directed King in
the delivery of the load. This evidence supports the district court’s finding that
Ceballos acted as a leader or organizer. See United States v. Villanueva, 408
F.3d 193, 204 (5th Cir. 2005) (affirming four-level leadership enhancement
because, inter alia, defendant recruited and hired a driver to smuggle aliens); see
also United States v. Giraldo, 111 F.3d 21, 24-25 (5th Cir. 1997) (holding that
recruitment of others supported findings that the defendant was a leader or
organizer).
      The dissent would find that the district court erred in applying the
leadership enhancement “because there is nothing in the record to indicate that
Ceballos served in any kind of leadership role with regard to the 2009 offense.”
Dissent at 7. In this regard it faults our view because we consider Ceballos’s
conduct surrounding both offenses in evaluating whether the district court
properly applied the leadership enhancement. But the guidelines do not require

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                                  No. 10-50940

that the conduct surrounding each conviction must independently qualify for the
enhancement. “As with the determination of drug quantities, the court may
draw on all ‘relevant conduct’ when determining whether the defendant was an
‘organizer or leader’ for the purposes of the guidelines.” United States v. Laboy,
351 F.3d 578, 585 (1st Cir. 2003) (citing United States v. Ruiz-Batista, 956 F.2d
351, 353-54 (1st Cir. 1992)). Indeed, the “introductory commentary to Chapter
3, part B simply states that the ‘defendant’s role in the offense is to be made on
the basis of all conduct within the scope of § 1B1.3 (Relevant Conduct) . . . and
not solely on the basis of elements and acts cited in the count of conviction.” Id.
at 586 (quoting U.S.S.G. Ch.3, Pt.B, intro. cmt.) (emphasis added). Thus, in the
instant case, the district court properly considered Ceballos’s conduct
surrounding both convictions in its application of a two-level leadership
enhancement under § 3B1.1(c).
      Finally, to the extent that Ceballos argues the district court erred in
relying on information in the PSR, his argument fails. Ceballos offered no
evidence at sentencing rebutting the facts in the PSR; thus, this argument is
without merit. See Cabrera, 288 F.3d at 173-74. The preponderance of the
evidence supports, and Ceballos has shown no clear error in, the district court’s
application of the leadership enhancement.
             C.    Obstruction of Justice Enhancement
                   1.    Ceballos
      Ceballos also contends that the district court erred in applying a two-level
increase for obstruction of justice. In essence, Ceballos argues that the district
court’s application of the enhancement deprives a defendant of his right to assert
a defense.
      In United States v. Dunnigan, 507 U.S. 87, 88-89 (1993), the Supreme
Court addressed the issue “whether the Constitution permits a court to enhance
a defendant’s sentence under [§ 3C1.1], if the court finds the defendant

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committed perjury at trial.” The Court held that “[u]pon a proper determination
that the accused has committed perjury at trial, an enhancement of sentence is
required by the Sentencing Guidelines . . . [and] [t]hat requirement . . . is not in
contravention of the privilege of an accused to testify in her own behalf.” Id. at
98. In so holding, the Court rejected the argument that an enhanced sentence
for perjury undermines the right to testify and distorts the decision whether to
remain silent. Id. at 96 (noting that the right to testify does not include the
right to commit perjury). Ceballos acknowledges the Supreme Court’s ruling in
Dunnigan but maintains that the decision was wrongly decided. As such,
Ceballos’s argument is foreclosed.3
                     2.      Peralta
       Peralta challenges the district court’s imposition of a two-level
enhancement for obstruction of justice. He argues that the facts presented at
trial do not support the district court’s finding that Peralta suborned perjury by
presenting the testimony of his wife. Peralta asserts that his wife did not
present an alibi, excuse, or material fact.
       Section 3C1.1 provides for a two-level increase in the offense level if “the
defendant willfully obstructed or impeded, or attempted to obstruct or impede,
the administration of justice with respect to the investigation, prosecution, or
sentencing of the instant offense of conviction” and this conduct relates to “the
defendant’s offense of conviction.” The commentary to the guidelines specifically


       3
         The dissent would find the district court erred in applying a two-level enhancement
for obstruction of justice. Dissent at 12-16. But the rationale and arguments advanced in the
dissent to support such a view are not advanced in Ceballos’s brief on appeal and therefore are
not properly before us. As we view Ceballos’s brief, he is raising one argument—that the
Supreme Court wrongly decided Dunnigan, 507 U.S. 87, in order to preserve it for further
review. Specifically, Ceballos’s brief provides that: “With due respect to the Supreme Court
and the precedent established by Dunnigan, the undersigned feels morally obliged to once
again raise this issue due to its continuing Constitutional implications.” Blue brief at 28.
Accordingly, we address the only claim that Ceballos makes with respect to his obstruction of
justice enhancement.

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                                  No. 10-50940

lists suborning perjury as an example of conduct to which the enhancement
applies. § 3C1.1, comment. (n.4(b)).
      Perjury is giving “false testimony concerning a material matter with the
willful intent to provide false testimony, rather than as a result of confusion,
mistake, or faulty memory.” Dunnigan, 507 U.S. at 94. “[A] district court must
review the evidence and make independent findings necessary to establish a
willful impediment to or obstruction of justice, or an attempt to do the same,
under the perjury definition.” Id. at 95. Although it is preferable for the court
to address each element of perjury in a separate and clear finding, it is sufficient
if the court makes a finding of obstruction “that encompasses all of the factual
predicates for a finding of perjury.” Id. Testimony is material if it was designed
to substantially affect the outcome of the case. United States v. Como, 53 F.3d
87, 90 (5th Cir. 1995). Subornation occurs whenever the defendant “procures
another to commit any perjury.” 18 U.S.C. § 1622. Credibility determinations
are within the province of the district court. United States v. Sotelo, 97 F.3d 782,
799 (5th Cir. 1996).     The district court’s determination that a defendant
obstructed justice under § 3C1.1 is a factual finding that we review for clear
error. United States v. Juarez-Duarte, 513 F.3d 204, 208 (5th Cir. 2008).
      After Peralta objected to the obstruction-of-justice enhancement in the
PSR, the probation officer responded that Peralta’s wife, Mabel, provided an
alibi as to why Peralta was in Mexico at the time of the April 9, 2009 offense. At
sentencing, the Government argued that Mabel testified Peralta was in Mexico
for a family event and that he crossed the river with Pinedo to report something
stolen. Peralta correctly notes that the Government mischaracterized Mabel’s
testimony.
      At trial, Mabel did not testify that Peralta was in Mexico at a family event
in April 2009. Mabel did testify that they moved from Odessa to Mexico in June
of 2009, but that does not provide an alibi for the April 2009 offense. Mabel

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                                 No. 10-50940

testified that in January 2010, she and Peralta moved back to Odessa. On
January 29, 2010, the night Peralta was arrested, she had been at their
daughter’s birthday party at a Mr. Gatti’s in Odessa. She further testified that
after the party Peralta and Ceballos went to Wal-Mart for “milk and stuff” for
the children. However, this testimony clearly did not provide an alibi for the
April 9, 2009 offense in Mexico. Nor did it provide an alibi for the January 29,
2010, offense in Odessa because Peralta was arrested at the scene of the offense
and admitted that he knew drugs were in the truck.
      At Peralta’s sentencing hearing, the prosecutor, referring to Peralta’s
crossing the border in April of 2009, asserted that he had asked Mabel the
following question on cross examination: “[w]ell, why didn’t you travel with your
husband at that time?” He further asserted that she had responded that “‘the
boys traveled with the boys, and the girls traveled with the girls,’ or something
to that effect.” Because Mabel allegedly lied about the reason Peralta was in
Ojinaga, the prosecutor argued that the enhancement should apply.            The
prosecutor was mistaken. Actually, it was Ceballos who testified that he was in
Ojinaga with family on April 9, 2009. It was Ceballos who testified that the men
and women drove back to Odessa separately. Ceballos testified that he had his
wife ride back from Mexico with her sister because he did not want his wife
riding with the two other men, Abraham and Pinedo. He testified that the
reason he crossed the border with Peralta, Pinedo, and Abraham was to report
Pinedo’s vehicle stolen. Ceballos’s testimony, however, was not the basis for
Peralta’s obstruction enhancement. Nonetheless, the district court applied the
obstruction enhancement, expressly finding that Peralta “allow[ed] his wife to
testify and to provide an alibi as to why the Defendant was in Mexico on or about
April 9, 2009, which is Count Two of the indictment.” As set forth above, Mabel
gave no testimony regarding Peralta’s presence in Mexico on April 9, 2009.



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                                  No. 10-50940

Thus, the district court’s factual finding in support of the obstruction-of-justice
enhancement is clearly erroneous.
      Moreover, there is no indication that Mabel’s testimony was deliberately
false or material. It is unclear how Mabel’s testimony concerning Peralta’s
whereabouts prior to his arrest on the night of January 29, 2010, would assist
Peralta’s defense because he was arrested at the scene of the offense, and it is
undisputed that he admitted to knowledge of drugs in the truck. The district
court erred in applying this enhancement.
      The Government argues that even if the court erred in applying the
enhancement, any error would be harmless because Peralta’s sentencing range
would be 97-121 months, and his sentence of 121 months falls within that range.
His sentence would be presumed reasonable, and Peralta fails to rebut the
presumption of reasonableness.
      But for the error, Peralta’s guidelines range would have been 97-121
months with a total offense level of 30 and a Category I criminal history score.
If a district court committed a procedural error, the appellate court must remand
unless the error was harmless. United States v. Delgado-Martinez, 564 F.3d 750,
753 (5th Cir. 2009). “A procedural error during sentencing is harmless if the
error did not affect the district court’s selection of the sentence imposed.” Id.
(internal quotation marks and citations omitted). The proponent of the sentence
bears the burden of establishing that the error was harmless and “must point to
evidence in the record that will convince [the reviewing court] that the district
court had a particular sentence in mind and would have imposed it,
notwithstanding the error made in arriving at the defendant’s guideline range.”
Id. (internal quotation marks and citations omitted).
      In United States v. Ibarra-Luna, 628 F.3d 712, 713-14 (5th Cir. 2010), this
Court recognized that an error can be harmless even if the district court did not
consider the correct guidelines range in its analysis. However, such an error is

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                                   No. 10-50940

harmless only if two requirements are met.         Id. at 717-19.     First, the
Government must “convincingly demonstrate that the court actually would have
followed the very same reasoning absent the error.” Id. at 717. Second, the
Government “must show that the . . . sentence the district court imposed was not
influenced in any way by the erroneous Guidelines calculation.” Id. at 719.
      Here, the district court imposed a sentence at the bottom of the higher,
incorrect guidelines range and stated that the guidelines range was “fair and
reasonable.” We see nothing in the record to indicate that the district court’s
reasoning in choosing a sentence would have been the same had it been
confronted with a guidelines range of 97-121 months. The Government has not
shown that Peralta’s sentence was not influenced by an erroneous calculation.
See Ibarra-Luna, 628 F.3d at 717-19.
      III.   CONCLUSION
      For the above reasons, we AFFIRM the convictions and sentences of
Ceballos. We VACATE the sentences of Peralta and REMAND for re-sentencing
in accordance with this opinion.




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                                  No. 10-50940

GRAVES, Circuit Judge, concurring in part, dissenting in part:
      Because I disagree with the majority that there was sufficient evidence to
sustain a conviction of Jose Luis Ceballos-Amaya (Ceballos) for the second count
of aiding and abetting the possession of marijuana with intent to distribute from
April 9, 2009, I would vacate Ceballos’ conviction on this count and remand for
resentencing as to only the January 29, 2010, count. Therefore, I respectfully
concur in part and dissent in part.
      The majority finds that there was sufficient evidence that Ceballos
participated in the offenses and shared in the intent to possess marijuana with
the intent to distribute it. I agree that there was sufficient evidence to sustain
a conviction for the first count, which occurred on January 29, 2010. However,
I disagree with regard to the second count, which occurred on April 9, 2009. The
facts, as set out in the opinion, do not support any finding that Ceballos
participated in the April 9, 2009, offense. He was merely present on two
different occasions when Abraham Vega (Abraham) arranged the deal with
Gilbert Vasquez.
      As stated by the majority, this Court will uphold a jury verdict if a rational
trier of fact could conclude that the elements of the offense were established
beyond a reasonable doubt. The Government must prove the defendant guilty
beyond a reasonable doubt, not merely that he could have been guilty. United
States v. Sacerio, 952 F.2d 860, 863 (5th Cir. 1992). Although some of the
circumstances may be suspicious, mere suspicion cannot support a verdict of
guilty. Id. While a defendant “need not have actual or constructive possession
of the drugs to be guilty of aiding and abetting possession with intent to
distribute,” a conviction requires that the defendant’s “association and
participation with the venture were in a way calculated to bring about the
venture’s success.” United States v. Williams, 985 F.2d 749, 753 (5th Cir. 1993).
This court has further said:

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                                       No. 10-50940

       To prove association, the evidence must show that the defendant
       shared the criminal intent of the principal. To prove participation,
       the evidence must show that the defendant committed an overt act
       that assisted in the success of the venture. Mere presence and
       association alone are insufficient to sustain a conviction for aiding
       and abetting, however, they are factors to be considered.
United States v. Lindell, 881 F.2d 1313, 1323 (5th Cir. 1989) (internal citations
omitted).1 This Court has also said:
       “Participation” means that the defendant engaged in some
       affirmative conduct designed to aid the venture or to assist the
       perpetrator of the crime. Id. Thus, “to aid and abet, a defendant
       must share in the intent to commit the offense as well as play an
       active role in its commission.” United States v. Lombardi, 138 F.3d
       559, 561 (5th Cir.1998). It is not enough to show that he engaged in
       otherwise innocent activities that just happened to further the
       criminal enterprise. United States v. Beckner, 134 F.3d 714, 718-19
       (5th Cir.1998).

United States v. Penaloza-Duarte, 473 F.3d 575 (5th Cir. 2006).
       The majority finds that “Ceballos’s actions in assisting to recruit Vasquez
and in watching over him at the motel show that he shared in the criminal
intent and engaged in affirmative conduct to help the venture succeed.”
However, the record does not support this finding. Also, the majority specifically
fails to set out any “overt act” or actual participation, which are required for a
conviction. See Lindell, 881 F.2d 1313, and Williams, 985 F.2d 749.
       The majority states that Vasquez testified that Ceballos was present with
Abraham and Misael Peralta Longoria (Peralta) when they drove to the home
of Vasquez’s father and “presented him with the proposition of making money.2


       1
        This is consistent with and in addition to United States v. Pando Franco, 503 F.3d
389, 394 (5th Cir. 2007), as cited by the majority.
       2
         I note that there appeared to initially be some confusion with regard to Vasquez’s
identification of Ceballos and Peralta. Vasquez initially identified Ceballos as follows: “They
call him Loco. I think it’s the gentleman over there. I called – I referred to him as the owner
of the King Ranch [pickup truck]. I don’t know his name.” (Emphasis added). However,

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                                      No. 10-50940

Ceballos was ‘involved’ in the conversation concerning the recruitment of
Vasquez.” While the record does establish that Ceballos went to the house with
Peralta and Abraham, Vasquez testified unequivocally that Abraham presented
him with the proposition of making money. Specifically, Vasquez said that
Abraham called him and “said he would like to speak to me about a position that
he had for me, that I could make some money.” (Emphasis added). Further,
Vasquez testified that, upon arrival at his father’s house:
       Abraham started talking to me, asked me if I was willing to make
       some money. He implied to me that I would have to come to
       Ojinaga, that they were furnishing a truck for me, that I needed –
       that they would pay me well; and if I was to do that, they would
       help me out with my bills with this truck that they had, which is
       that Ford dually that I got caught with.

Vasquez then identified Peralta as the person who gave him the title to the truck
and $250 to get insurance. Further, Abraham and Peralta returned without
Ceballos the following day to complete the transaction.
       When asked whether Ceballos was “involved” in the conversation, Vasquez
testified that on “Monday he was. On Tuesday when they went to go deliver my
truck, it was just [Peralta] and Abraham.” When asked whether Ceballos was
“participating” in the conversation, Vasquez answered, “[y]es.” Vasquez never
testified how Ceballos was “involved” or “participating” in the conversation, nor
did he testify as to any specific statements that Ceballos ever made or any
specific “overt acts” establishing an attempt to recruit him. However, Vasquez
did testify as to specific statements and “overt acts” of Abraham and Peralta.
Often, Vasquez's testimony referred to "they" or “them” which specified different
individuals throughout the trial. On a few occasions, Vasquez indicated that a



Vasquez then repeatedly identified Peralta as the owner of the King Ranch. When asked if
he saw Abraham or Loco (Ceballos) in the courtroom, Vasquez said, “[n]o, I don’t see him.” He
then identified Ceballos as the “man with the blue shirt” in the courtroom.

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                                  No. 10-50940

collective term included Ceballos. (“They were driving a green King Ranch
truck.”) (“They came in this black Tahoe.”). However, more than once, Vasquez
then also admitted that he was really only referring to someone other than
Ceballos. (“They called me....” where “they” was Peralta and Abraham) (“They
gave me the keys and gave me money....” where “they” was Peralta and
Abraham) (“I had called them from there” where “them” was Abraham), (“I
called them” where “them” was Cesar Pinedo) (“I told them” where “them” was
Bruce McGraw).
      Vasquez testified that Ceballos was present at the motel in Ojinaga at
various times along with several other individuals. Vasquez also testified that
Abraham told him that Peralta did not want Vasquez and Bruce McGraw
running around Ojinaga and that they should stay at the motel. Vasquez
replied, “[y]es,” when asked, “[s]o Loco, this Defendant in the blue shirt,
Abraham, and Cesar [Pinedo] were staying at the hotel, keeping an eye on you
and [McGraw]?” As discussed more fully below, Vasquez's testimony does not
establish that he was ever prevented from leaving the motel. Vasquez did not
mention Ceballos in his testimony regarding the following day, which would
have been April 9, 2009, the day of the arrest, indicating that Ceballos did not
actually stay the entire night at the motel. Also, Vasquez testified that he
shared a room at the motel with only McGraw, who was injecting cocaine while
Vasquez drank alcohol, further indicating Vasquez’s lack of knowledge regarding
whether Ceballos actually stayed the entire night at the motel. Further, even
if Ceballos was among a group “keeping an eye on” Vasquez, neither the record
nor the opinion establishes that Ceballos did so because he shared the principal’s
criminal intent or was acting to assist in the success of the venture, or how that
was indicative of aiding and abetting the possession of marijuana with the intent
to distribute. Vasquez’s testimony regarding this was, in relevant part:



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                                 No. 10-50940

            Abraham told me that they didn’t want us to go anywhere,
            because they didn’t want us to leave. He said that they would
            rather us – for us not to go – you know, me and Bruce not to
            go anywhere because of the soldiers that were running around
            there in Ojinaga.
Vasquez then testified that “they” was Peralta. Vasquez also testified that
McGraw kept telling him that he wanted to be reimbursed for his part of the
money he’d spent on gas going to Ojinaga so he could go to a nearby store to get
something to eat. This indicates that Vasquez and McGraw were free to leave
at all times, as they had also done during a previous trip to Ojinaga, and that
Abraham’s statement was merely a warning regarding their personal safety in
Ojinaga as opposed to some sort of forced detention to ensure their participation
in a drug smuggling operation. This is further established by Vasquez’s and
McGraw’s threat to leave and go back to Odessa based on their mistaken belief
that the deal was not going to happen. The pair decided to stay after Abraham
told them to calm down and that the truck would be ready. Vasquez’s testimony
indicates that he and McGraw stayed at the motel in Ojinaga because they
wanted to complete the transaction and get paid, not because they were
prevented from leaving and forced to complete the transaction.
      As the majority correctly notes, to sustain a conviction for possession of
marijuana with intent to distribute, the government must prove beyond a
reasonable doubt the knowing possession of marijuana with intent to distribute.
The Government need not prove the defendant committed each of these elements
if he aided and abetted each element.
      As stated previously, mere presence and association alone are insufficient
to sustain a conviction for aiding and abetting, but both are factors to be
considered. Lindell, 881 F.2d at 1323. “To prove association, the evidence must
show that the defendant shared the criminal intent of the principal. To prove




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                                   No. 10-50940

participation, the evidence must show that the defendant committed an overt act
that assisted in the success of the venture.” Id.
      Unlike with regard to both Abraham and Peralta, Vasquez never testified
to anything with regard to Ceballos to establish that he shared the criminal
intent of the principal or committed any overt act to assist in the success of the
venture. Ceballos also did not offer any such evidence.
      The majority cites authority for the proposition that this Court does not
weigh evidence or assess the credibility of witnesses and that the jury is free to
choose among reasonable constructions of the evidence. See United States v.
Ramos-Cardenas, 524 F.3d 600, 605 (5th Cir. 2008). While this is true, “the
government must do more than show that the defendants ‘could have been
guilty.’” Id. (Internal citations omitted). “Therefore, if ‘the evidence tends to
give equal or nearly equal circumstantial support to guilt and to innocence,” . .
. Reversal is required . . . .’” Id.   The issue here is not the credibility of any
witness, but rather the insufficiency of the evidence offered.          Vasquez’s
testimony does not establish an overt act.              Only the Government’s
characterization of Vasquez’s testimony alludes to an overt act. Further, the
alleged acts, “participating” in a conversation and staying at a motel, are
innocent activities. Penaloza-Duarte, 473 F.3d 575.
      For these reasons, a rational trier of fact could not conclude that the
elements of the April 9, 2009, offense were established beyond a reasonable
doubt. Further, the evidence shows neither association nor participation with
regard to the April 9, 2009, offense, but rather indicates mere presence, which
is not enough to sustain a conviction for aiding and abetting on this count.
Therefore, I would vacate Ceballos’ conviction on this count and remand for
resentencing as to only the January 29, 2010, count.
Leadership enhancement



                                         25
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                                       No. 10-50940

       With regard to the leadership enhancement, I disagree with the majority
that the trial court did not err in applying the enhancement pursuant to Section
3B1.1(c) to Ceballos’ sentence.3 The evidence was insufficient to sustain the
2009 conviction.
       Alternatively, even if there was sufficient evidence to sustain the
conviction on the April 2009 offense, the district court erred in applying this
enhancement because there is nothing in the record to indicate that Ceballos
served in any kind of leadership role with regard to the 2009 offense.
Additionally, the factual findings in the PSR, as adopted by the district court, do
not have an adequate basis with a sufficient indicia of reliability.
       The opinion refers to the PSR’s representation that Ceballos identified
himself as belonging to La Linea and that Ceballos’ assisted in recruiting
Vasquez. Further, the opinion states what the district court found. However,
upon review of the record, I find no basis for either the statement in the PSR or
the district court’s finding.
       The relevant portion of the PSR says:
       Vasquez agreed to cooperate with the government and provided a
       statement regarding his involvement with the drug smuggling
       operation. He reported that while working in Odessa, he met two
       individuals identified as Abraham Vega and Cesar Pinedo. On six
       to seven occasions, either Pinedo or Vega provided Vasquez with a
       quantity of marijuana and cocaine to sell, and would give a portion
       of what he earned back to Vega or Pinedo. Approximately one week
       before his arrest, Vasquez was approached by Vega and two other
       individuals identified as Jose Luis Ceballos-Amaya and Misael
       Peralta-Longoria. All three men stated they worked for a drug
       organization based in Mexico known as “La Linea.” Vega, Ceballos-

       3
         I note that the opinion says, “Ceballos recruited Vasquez and wired $100 to King to
facilitate the transfer of a load. Additionally, Ceballos directed King in the delivery of the
load. This evidence supports the district court’s finding that Ceballos acted as a leader or
organizer.” This statement makes it sound as if it is referring to only one load. However,
Vasquez was only involved in the 2009 offense and King was only involved in the 2010 offense.
There is no evidence that Ceballos acted as a leader with regard to the 2009 offense.

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                                      No. 10-50940

       Amaya, and Peralta-Longoria recruited Vasquez to transport a load
       of marijuana into the United States. Additionally, Vasquez told the
       men that he knew an individual, Bruce Evan McGraw, that wanted
       to make quick money and would help with the drug smuggling
       operation.

       In response to Ceballos’ objection to the enhancement at sentencing, the
Government asserted:
              Also, regarding the incident in which Richard Vasquez [sic]
       testified regarding the April 2009 incident, this Defendant was more
       of a facilitator on behalf of Mr. Peralta in order to make sure Mr.
       Vasquez and Mr. McGraw would be successful in their venture
       trying to get the marijuana across on the River Road in south
       Presidio County.
              In light of that, we believe he is a leader/organizer, but in the
       context of this case, he should not get the four-level increase but at
       least a two-level increase.
       The district court noted the language in the PSR regarding all three men
belonging to La Linea and recruiting Vasquez and said, additionally, that
“McGraw, who was somebody they had identified who would do some of the
transporting of the marijuana, met with Vega, Pinedo, Ceballos, and Peralta.
And he helped recruit McGraw, helping direct him, as well as the information
that was set forth in Probation’s answer to that.”
       As set out above, the testimony of Vasquez fails to establish that he was
recruited by Ceballos.4 Also, during his testimony at trial, Vasquez did not say
anything about Ceballos stating that he worked for La Linea. This statement
is referenced in the February 8, 2010, attachment to the amended complaint
filed on that same date.          In that attachment, Sean Roach, Task Force
Administrator for the Drug Enforcement Administration, said, in relevant part:

       4
         Though it is not evidence, it is worth noting that in closing arguments, the
Government said: “Mr. Peralta recruited Gilbert Vasquez. He gave him money before Mr.
Vasquez came down in order to change over the title and get insurance on the vehicle.” With
regard to the “defendants” in general, the Government said: “They recruited people, and they
picked the stuff up.”

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                                 No. 10-50940

      The cooperating defendant [Vasquez] stated that a little over a week
      prior to his arrest that Abraham, a hispanic he knew as Loco, and
      another hispanic male in his 30's approached him at his residence
      in a green King Ranch Ford. Abraham asked the cooperating
      defendant if he wanted to work for them transporting marijuana,
      and that if he did he could earn $10,000.00 to $15,000.00 a month.
      The three men stated to the cooperating defendant that they worked
      for “La Linea” and for an individual out of Juarez, Mexico.
      ...

      On June 24, 2009, cooperating defendant was shown photographs
      of Misael Peralta-Longoria, who he identified as the driver of the
      King Ranch truck. Cooperating defendant was also shown a
      photograph of Jose Luis Ceballos-Amaya, who he identified as Loco.

      Lane crossing history shows that Peralta-Longoria and Ceballos-
      Amaya were in Ojinaga, Mexico at the time the cooperating
      defendants stated they were.

Roach also did not offer any testimony regarding anything contained in the
above-quoted portion of this attachment.      Also, while this portion of the
attachment said the three men stated they worked for La Linea, it does not say
that the three men recruited Vasquez, but rather says “Abraham asked . . . .”
      Notwithstanding that this statement was not corroborated by any
testimony at trial, Ceballos’ alleged involvement with La Linea alone would not
prove that he was involved in the April 9, 2009, offense.
      There was also no testimony regarding the recruitment of McGraw.
Further, the PSR said:
      McGraw also agreed to cooperate with the government and provided
      a statement regarding his involvement with the drug smuggling
      operation. McGraw reported that he and Vasquez were recruited by
      several individuals to smuggle marijuana into the United States,
      one of whom he identified as Cesar Pinedo. McGraw provided
      details regarding the drug smuggling attempt that were
      corroborated by Vasquez’s statement.



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                                 No. 10-50940

This clearly does not say that McGraw was recruited by Ceballos. Further,
McGraw did not testify at trial and there was no evidence offered to support this
finding.
      Based on the district court’s statement quoted above, which said Ceballos
“helped recruit McGraw,” and referenced “Probation’s answer,” it appears that
the district court was possibly confusing McGraw with Billy Wayne King, the
driver from the January 2010 offense. Ceballos objected to the leadership
enhancement. The response from Probation said:
            It appears the defendant’s role in the offense was that of a
      leader or an organizer. According to a statement by codefendant
      Gilbert Richard Vasquez, Ceballos-Amaya was one of the individuals
      who recruited him to transport marijuana from Mexico into the
      United States. In addition, Ceballos-Amaya was recorded directing
      his codefendant Billy Wayne King to the location where the
      marijuana shipment was to be delivered. He also sent King $100
      via Western Union to help facilitate the drug smuggling operation.
      It appears that Ceballos-Amaya helped recruit and exercised a
      degree of control over his codefendants; therefore, he appears to be
      a leader and organizer of the instant offense and the presentence
      report will not be changed.

(Emphasis added).      There is no mention of McGraw in this response.
Additionally, only the emphasized sentence applies to the April 2009 offense.
      As set out previously herein, Vasquez offered no testimony establishing
that Ceballos recruited him.     Vasquez’s testimony only established mere
presence, which is insufficient to support a conviction let alone a leadership
enhancement for the April 9, 2009, count. Vasquez’s affirmative response as to
whether Ceballos was “involved” or “participated” in conversations during which
Abraham and Peralta made specific statements indicating their shared criminal
intent or committed overt acts to assist in the success of the venture was
insufficient to establish that Ceballos served in any leadership capacity or
recruited him.

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                                  No. 10-50940

      Further, the Government’s response at sentencing, quoted above, that
Ceballos was a “facilitator on behalf of Mr. Peralta in order to make sure Mr.
Vasquez and Mr. McGraw would be successful in their venture trying to get the
marijuana across on the River Road in south Presidio County” is absolutely not
supported by the record. There is nothing to indicate that Ceballos facilitated
anything or ever even spoke the words “River Road” or “marijuana” to Vasquez
or McGraw.
      The district court may adopt the facts contained in a PSR without further
inquiry if the facts have an adequate basis with sufficient indicia of reliability
and the defendant does not rebut the evidence or otherwise demonstrate it is
unreliable. United States v. Cabrera, 288 F.3d 163, 173-74 (5th Cir. 2002).
Confronted with an objection to the findings in the PSR, the party seeking an
adjustment in the base offense level, the Government, must prove by a
preponderance of the evidence that the adjustment is warranted. See United
States v. Patterson, 962 F.2d 409, 415 (5th Cir. 1992); United States v. Elwood,
999 F.2d 814, 817 (5th Cir. 1993). However, “[b]ald, conclusionary statements
do not acquire the patina of reliability by mere inclusion in the PSR.” Elwood,
999 F.2d at 817-818.
      The findings in the PSR do not have an adequate basis with a sufficient
indicia of reliability. They are merely bald, conclusionary statements that
Ceballos recruited Vasquez and that he was working for La Linea. Vasquez’s
mere affirmative response to the conclusionary allegation contained in the
question presented by the Government of whether Ceballos was “involved” in or
“participated” in conversations without any specific testimony of what he
allegedly did limits Ceballos’ rebuttal to saying he did not. And he offered that.
It is difficult to rebut because the evidence of what he allegedly did to recruit
Vasquez is not contained in the record. Neither is the evidence that he was
working for La Linea.        More importantly, once Ceballos objected, the

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                                  No. 10-50940

Government had the burden of proving by a preponderance of the evidence that
the adjustment was warranted. As indicated by the Government’s response to
the objection, it failed to do this and merely offered another bald, conclusionary
statement.
Obstruction enhancement
      Ceballos asserts that the district court erred in applying an obstruction of
justice enhancement. I agree.
      The majority cites United States v. Dunnigan, 507 U.S. 87, 88-89 (1993),
for the proposition that this enhancement is permitted where the defendant
committed perjury at trial, but the majority fails to set out how Ceballos
perjured himself.
      This Court reviews the district court’s factual determination that a
defendant obstructed justice under Section 3C1.1 for clear error. United States
v. Gonzales, 163 F.3d 255, 263 (5th Cir. 1998). In Dunnagin, the Supreme Court
held that: “Upon a proper determination that the accused has committed perjury
at trial, an enhancement of sentence is required by the Sentencing Guidelines.
That requirement is consistent with our precedents and is not in contravention
of the privilege of an accused to testify in her own behalf.” Dunnagin, 507 U.S.
at 98. (Emphasis added). However, as the Supreme Court also said, “[w]hen
contested, the elements of perjury must be found by the district court with the
specificity that we have stated, so the enhancement is far from automatic.” Id.
      Under USSG § 3C1.1, if the defendant “willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of justice with respect to the
investigation, prosecution, or sentencing of the instant offense of conviction” the
offense level is increased by two levels. The commentary to § 3C1.1 provides
that “committing , suborning, or attempting to suborn perjury” is conduct to
which this enhancement applies.



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                                       No. 10-50940

       The PSR said that “Ceballos-Amaya willfully obstructed or impeded the
administration of justice with respect to the investigation, prosecution, and
sentencing of the instant offense of conviction and any relevant conduct.
Pursuant to USSG § 3C1.1, Application Note 4(b), the defendant committed
perjury by testifying to false information during his trial.”5
       Ceballos submitted a written objection, to which Probation responded:
              The defendant testified that on January 29, 2010, he was
       merely traveling to the grocery store to purchase medicine for his
       child when he was arrested (his wife testified that he was traveling
       to the store to purchase milk). However, agents recorded numerous
       phone calls between Ceballos-Amaya and his codefendant, Billy
       Wayne King, which indicated that Ceballos-Amaya was directly
       participating with the drug smuggling venture at that time. In
       addition, the defendant and his family provided testimony regarding
       a trip the defendant made to Ojinaga, Chihuahua, Mexico. The
       testimony provided by the defendant appeared to contradict the
       testimony which was provided by family members. Therefore, it
       appears that Ceballos-Amaya provided false testimony and a
       corresponding two level increase for obstruction of justice is
       warranted.
       To begin with, several portions of this response in the Addendum are
contradictory to the record.6 Ceballos testified that he went to Wal-Mart with
Peralta to get some medicine for Peralta’s child, not Ceballos’ child. Ceballos’
wife did not testify that he was traveling to the store to get milk. Peralta’s wife
testified that Peralta and Ceballos were “going to go buy milk and stuff. They



       5
         The PSR also said that “[n]umerous family members of the defendants testified at
trial.” Ceballos, Ceballos’ wife, and Peralta’s wife testified. The PSR also said: “Ceballos-
Amaya testified in his own behalf and provided testimony that contradicted testimony which
was provided by his family members regarding the reason he was traveling to Ojinaga,
Chihuahua, Mexico.” This will be discussed further herein.
       6
         Also, again, this response muddles facts from both offenses. It starts out referring to
the trip to Wal-Mart in January 2010 offense, then switches to the April 2009 offense with
regard to the trip to Ojinaga. Thus combining the two offenses for the purpose of determining
the appropriateness of an enhancement.

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                                      No. 10-50940

were bringing it home for the kids.” (Emphasis added). Ceballos did not provide
any testimony regarding a trip to Ojinaga that was contradictory to any
testimony provided by family members. Ceballos testified that his family makes
frequent trips to Mexico to visit his in-laws. With regard to the April 2009
offense, Ceballos testified that he and his family were in Ojinaga and “[w]e seen
Abraham, and he was like, ‘Hey, we’re partying at this motel.’ He followed us
over there.”7 There was no statement by any family member contradictory to
this. In fact, neither Ceballos’ wife nor Peralta’s wife were even asked about any
trip to Ojinaga. Also, in offering evidence regarding border crossings, the
Government failed to offer any evidence to disprove that Ceballos’ wife was in
Ojinaga around April 2009.
       With regard to Ceballos’ objection at trial to the obstruction enhancement,
he and the Government made arguments regarding the trip to Wal-Mart and
whether Ceballos had knowledge of the marijuana in the truck during the
January 2010 incident. The district court agreed with Ceballos that there was
no willful attempt to obstruct justice with regard to the purpose of the trip to
Wal-Mart, but found as follows:
              However, a defendant’s denial of guilt other than a denial of
       guilt under oath that constitutes perjury – the jury found beyond a
       reasonable doubt that the Defendant was involved willfully and
       knowingly and intentionally in the moving of these – in moving of
       the drugs. So by the defendant taking the witness stand and
       testifying that he had no knowledge of the drugs and was there just
       to work on the vehicle because it had broken down, the fact that he
       had sent $100.00, I believe it was by . . . telegram to someplace to be
       picked up, the Court finds that that is – that the defendant did
       willfully obstruct administration of justice during the course of this
       case and his testimony was perjurious. And the Court finds that the


       7
          The Government's hearsay objection to this statement was sustained. Interestingly,
during closing argument and in discussing Vasquez’s agitation with regard to his initial trip
to Ojinaga, the Government characterized it as, “Hey, I came down here to, you know, take
this load, and yet you guys are just sitting around partying.”

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                                     No. 10-50940

       two points for obstruction of justice are properly given in that
       instance.

       As set out in the majority opinion, after intercepting King at the Marfa
checkpoint, authorities set up a controlled delivery which included the ruse
about the truck having mechanical problems. Ceballos wired $100 to King so
that he could have the truck repaired. Ceballos never denied sending the $100.
Ceballos did testify that he did not know about the marijuana in the truck and
that he was going to attempt to repair the truck. Again, at the direction of the
authorities, King had told Ceballos the truck was having mechanical problems.
When Ceballos arrived at the location, he immediately lifted the hood of the
truck, but then King started it and it was running fine. It is impossible for
Ceballos to have perjured himself by recounting his belief in the Government’s
ruse regarding mechanical problems. So, the only possible portion of Ceballos’
testimony that is not corroborated or possibly contradictory to other evidence
presented at trial is whether he knew about the drugs in the truck in 2010.
Peralta told authorities that he knew there was some type of drugs in the
vehicle, but didn’t know what type or how much and was only getting paid to
pick up the vehicle. When asked on cross-examination to respond to Peralta’s
knowledge of the drugs, Ceballos testified that “[Peralta] never told me that. He
just – I believe that he just – I was helping him to do mechanic work.” Ceballos
also testified on direct that he did not know about the drugs in the truck. The
record establishes that Peralta and Ceballos are brothers-in-law who often spend
time together and help each other. It would appear that, if Peralta, who was
portrayed as the leader, had limited knowledge of what was contained in the
truck, then Ceballos would also have limited, if any, knowledge.8


      8
        Also, technically, the question posed to Ceballos on direct was, “Did you know that
there was marijuana in that truck?” On cross, the Government posed: “And you heard the
testimony that he [Peralta] admitted – he knew there was something in the vehicle. He just

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                                      No. 10-50940

       Accordingly, the district court clearly erred to the extent that it relied on
the wiring of $100 to fix the truck and Ceballos’ testimony that he was going to
fix the truck as evidence of perjury. Further, the district did not make a “proper
determination” in finding the elements of perjury with regard to Ceballos’
response to whether he had knowledge of the drugs in the truck.
       For these reasons, I respectfully concur in part and dissent in part.




didn’t know what type. And you had no idea about this?” To which Ceballos replied, “Exactly,
sir.”

                                            35
