     Case: 14-40012      Document: 00512901905         Page: 1    Date Filed: 01/14/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-40012
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         January 14, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

JULIO ANTONIO GOMEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:12-CR-888-6


Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Julio Antonio Gomez was convicted of one count of conspiring to
transport aliens. The district court imposed a below-guidelines sentence of 30
months in prison and a three-year term of supervised release. In this appeal,
Gomez first challenges his conviction by arguing that the district court erred
by denying his motion for a judgment of acquittal and that the evidence is
insufficient to uphold his conviction.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 14-40012     Document: 00512901905     Page: 2     Date Filed: 01/14/2015


                                  No. 14-40012

      We conduct a de novo review of both of these arguments. See United
States v. Girod, 646 F.3d 304, 313 (5th Cir. 2011); United States v. Frye, 489
F.3d 201, 207 (5th Cir. 2007). The pertinent inquiry for both of these claims is
whether “‘any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.’” United States v. Vargas-Ocampo, 747
F.3d 299, 301 (5th Cir.) (en banc) (quoting Jackson v. Virginia, 443 U.S. 307,
319 (1979)), cert. denied, 135 S. Ct. 170 (2014); Girod, 646 F.3d at 313. When
conducting this review we leave questions concerning the weight and
credibility of evidence to the jury and will not second-guess its conclusions on
these matters. See United States v. Jefferson, 751 F.3d 314, 320-21 (5th Cir.
2014); Girod, 646 F.3d at 313.
      Application of these standards to the instant case shows that Gomez’s
challenges to the sufficiency of the evidence and the denial of his motion for
judgment of acquittal are unavailing. When taken as a whole, the testimony
offered by all of the trial witnesses shows the existence of a large alien-
transporting operation carried out by numerous individuals including Gomez.
These witnesses’ testimony suffices to permit a reasonable factfinder to
conclude that Gomez took part in the conspiracy by transporting at least two
illegal aliens and by taking part in conversations concerning the running of the
operation. See United States v. Chon, 713 F.3d 812, 818 (5th Cir.), cert. denied,
134 S. Ct. 255 (2013); see 8 U.S.C. § 1324(a)(1)(A)(v)(I).
      Insofar as Gomez argues that the evidence was insufficient due to
violations of the Jencks Act, 18 U.S.C. § 3500(b), he is mistaken. The disputed
items are summaries of interviews and thus do not qualify as Jencks Act
material. See Palermo v. United States, 360 U.S. 343, 352 (1959).
      Gomez’s argument that his right to cross-examination was infringed
when he was forbidden from further questioning a witness about a conviction



                                        2
    Case: 14-40012     Document: 00512901905      Page: 3   Date Filed: 01/14/2015


                                  No. 14-40012

that was being appealed also fails. The record shows that Gomez was “allowed
to expose the jury to facts from which the jury could appropriately draw
inferences relating to the reliability of the witness.” United States v. Heard,
709 F.3d 413, 432 (5th Cir.), cert. denied, 134 S. Ct. 470 (2013) (internal
quotation marks and citations omitted).       Gomez has shown no error with
respect to his conviction.
      Similarly, he has not shown any error in connection with his sentence.
Sentences, whether inside or outside the advisory guidelines range, are
reviewed for reasonableness in light of the 18 U.S.C. § 3553(a) factors. Gall v.
United States, 552 U.S. 38, 51 (2007). When, as in this case, the district court
has imposed a sentence that deviates from the guidelines range,
reasonableness review requires that this court evaluate whether the sentence
“unreasonably fails to reflect the statutory sentencing factors” set forth in
§ 3553(a). United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006).
      To the extent Gomez contends that the district court erred by denying
him the adjustment for acceptance of responsibility, he is mistaken. “This
adjustment is not intended to apply to a defendant who puts the government
to its burden of proof at trial by denying the essential factual elements of guilt,
is convicted, and only then admits guilt and expresses remorse.” United States
v. Rudzavice, 586 F.3d 310, 316 (5th Cir. 2009) (quoting U.S.S.G. § 3E1.1,
comment. (n.2)).     This is exactly what happened in the instant case.
Consequently, Gomez has not shown that the district court erred by denying
him this adjustment. See Rudzavice, 586 F.3d at 316.
      Likewise unavailing are Gomez’s arguments that the district court erred
by not imposing a greater variance and by failing to give adequate reasons for
its choice of sentence. The record shows that the district court considered
Gomez’s arguments in favor of a below-guidelines sentence, as well as the



                                        3
    Case: 14-40012     Document: 00512901905     Page: 4   Date Filed: 01/14/2015


                                  No. 14-40012

Government’s position that a guidelines sentence was warranted. However,
the district court disagreed with these positions and concluded that, in light of
the § 3553(a) factors, the sentence imposed was appropriate. The district court
also noted that its choice of sentence reflected its beliefs concerning Gomez’s
position in the conspiracy relative to others.
      When these portions of the record are considered, they evidence the
district court’s opinion that the facts of the instant offense and Gomez’s history
and characteristics warranted a 30-month sentence.          There is nothing to
indicate that the district court’s choice of sentence was grounded in disregard
for an important factor, a disproportionate weighing of a factor that was not
germane, or a clearly erroneous weighing of the sentencing factors. See Smith,
440 F.3d at 708. Rather, the record shows that the district court chose the
sentence it felt most appropriate in light of the § 3553(a) factors. The fact that
Gomez thinks his sentence should have been lower does not mean that it is
unreasonable.    Cf. Gall, 552 U.S. at 51 (holding that a sentence is not
unreasonable simply because the appellate court would have chosen a different
sentence).
      Finally, the record refutes Gomez’s assertion that the district court did
not give adequate reasons for its choice of sentence.         The district court
“adequately explain[ed] the chosen sentence to allow for meaningful appellate
review and to promote the perception of fair sentencing.” See id. at 50. Gomez
has shown no error in connection with his sentence.
      AFFIRMED.




                                        4
