     Case: 17-20457      Document: 00514572013         Page: 1    Date Filed: 07/26/2018




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


                                    No. 17-20457
                                                                                FILED
                                                                            July 26, 2018
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

OSCAR BENITEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:14-CR-59-2


Before JOLLY, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM: *
       Oscar Benitez was convicted by a jury of conspiracy to possess with
intent to distribute five kilograms or more of cocaine, two counts of possession
with intent to distribute five kilograms or more of cocaine, and conspiracy to
launder monetary instruments. He asserts that the evidence adduced at trial
was insufficient to support his convictions. Because he preserved his challenge




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-20457

to the sufficiency of the evidence, our review is de novo. See United States v.
Frye, 489 F.3d 201, 207 (5th Cir. 2007).
        Benitez maintains that there was insufficient evidence to convict him of
the drug conspiracy. But the evidence, viewed in the light most favorable to
the Government, supports Benitez’s conviction. See United States v. Romans,
823 F.3d 299, 311 (5th Cir.), cert. denied, 137 S. Ct. 195 (2016); United States
v. Terrell, 700 F.3d 755, 760 (5th Cir. 2012). While the Government offered no
direct evidence of an agreement, the jury could infer an agreement from
circumstantial evidence.     See Romans, 823 F.3d at 311; United States v.
Zamora, 661 F.3d 200, 209 (5th Cir. 2011). The evidence, including testimony
from a co-conspirator, reasonably supported the inference that Benitez, who
owned a car dealership, agreed with others to distribute drugs and provided
his co-conspirators with cars for that purpose. See United States v. Shoemaker,
746 F.3d 614, 623 (5th Cir. 2014). Also, the evidence supported the inference
that he attempted to advance the conspiracy by negotiating drug deals,
permitting co-conspirators to deposit proceeds from drug sales into a bank
account for his car dealership, and accepting a delivery of drugs at his property.
There thus was a “collocation of circumstances” from which a rational trier of
fact could have found beyond a reasonable doubt that Benitez conspired to
engage in drug trafficking. See Romans, 823 F.3d at 311; Terrell, 700 F.3d at
760.
        Benitez also asserts that the evidence was insufficient to convict him of
possession with the intent to distribute cocaine. He argues that there was no
evidence that he had actual or constructive possession of cocaine.
        Under Pinkerton v. United States, 328 U.S. 640, 647 (1946), a member of
a conspiracy can be convicted of any foreseeable substantive offense that a co-
conspirator commits in furtherance of the conspiracy and while the defendant



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                                 No. 17-20457

is a member of the conspiracy. United States v. Sanjar, 876 F.3d 725, 743 (5th
Cir. 2017).
      Benitez does not dispute that the possession offenses were committed in
furtherance of the charged conspiracy and, as detailed, the conspiracy and his
knowing participation in it were proven beyond a reasonable doubt. Pinkerton
liability thus attaches to the possession offenses. Id. Because the jury was
correctly instructed as to Pinkerton liability, Benitez’s convictions for
possession can be affirmed on this basis. See United States v. Polk, 56 F.3d
613, 619 n.4 (5th Cir. 1995).
      Finally, Benitez argues that there was insufficient evidence to establish
his guilt of conspiracy to launder money. He contends that the Government
offered evidence of only a single deposit into an account under his control, and
there was no indication of the source of the funds or whether the deposit was
related to a criminal enterprise. To the extent that Benitez seeks to argue that
the evidence does not prove that he committed the underlying crime of money
laundering, his claim is unavailing. See United States v. Threadgill, 172 F.3d
357, 367 (5th Cir. 1999).
      The evidence, viewed in the light most favorable to the Government and
with reasonable inferences made in favor of the jury’s verdict, otherwise was
sufficient to prove the money laundering conspiracy. See United States v.
Fuchs, 467 F.3d 889, 906 (5th Cir. 2006); Terrell, 700 F.3d at 760. The evidence
particularly supported the inference that Benitez allowed funds from a drug
trafficking organization to be commingled with money from his car dealership
for the purpose of hiding those funds; a co-conspirator confirmed that members
of the drug organization deposited proceeds from drug sales into a bank
account for the car dealership—which the evidence reflected was used to
supply cars to the conspiracy—and that Benitez effectively knew about the



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                                  No. 17-20457

deposits and their purpose. See United States v. Cessa, 785 F.3d 165, 185 (5th
Cir. 2015); Shoemaker, 746 F.3d at 623; United States v. Rodriguez, 278 F.3d
486, 491 (5th Cir. 2002). The jury also could have reasonably inferred that his
knowledge of, and involvement in, the drug conspiracy showed he knew the
illegal source of the proceeds and intended to join an agreement to launder
proceeds of that crime. See United States v. Trejo, 610 F.3d 308, 315 (5th Cir.
2010). Sufficient evidence therefore established that Benitez conspired to
launder money.       To the extent that Benitez challenges the sentencing
enhancement applied under U.S.S.G. § 2S1.1(b)(2)(B), his claim is unavailing
in light of this determination.
      AFFIRMED.




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