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United States v. Zamora-Salazar

United States Court of Appeals, Fifth Circuit

June 28, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee
v.
SANTOS ALFONSO ZAMORA-SALAZAR, Defendant-Appellant

         Appeal from the United States District Court for the Southern District of Texas

          Before STEWART, Chief Judge, and WIENER and PRADO, Circuit Judges.

          CARL E. STEWART, Chief Judge:

         Defendant-Appellant Santos Alfonso Zamora-Salazar appeals his convictions for conspiracy to import and importation of methamphetamine. He also appeals the sentencing enhancement imposed by the district court. For the following reasons, we affirm the convictions and sentence.

         I. Facts & Procedural History

         After being taken into federal custody on April 6, 2015, Zamora-Salazar was charged, along with Mario Cruz-Becerra, with conspiring to import methamphetamine[1] and aiding and abetting importation of methamphetamine.[2] Zamora-Salazar was also charged with being an illegal alien in possession of a firearm.[3] A three-day jury trial was held and Cruz-Becerra cooperated with the Government, providing trial testimony as to the events that occurred giving rise to the charged offenses.

         Cruz-Becerra testified that he had an agreement with his cousin Victor Becerra, who lives in Mexico, to receive packages containing drugs at his residential address in Texas. In early April 2015, Victor sent the first package from Mexico to Cruz-Becerra via FedEx. The package contained a water cooler with methamphetamine packed inside the compressor. Once Victor sent the package, he messaged Cruz-Becerra to let him know that it was on the way.[4]When the package arrived, Cruz-Becerra sent a message to Victor confirming receipt but did not open the package even though it was addressed to him. Victor replied that he would send "someone" to retrieve the package and that person would arrive in approximately half an hour. A half hour later, Zamora-Salazar and his half-brother Constancio Diaz Salazar ("Diaz") showed up at Cruz-Becerra's residence in an Escalade; Zamora-Salazar was driving.[5] When they arrived, Diaz asked Cruz-Becerra if he was Victor's cousin. Cruz-Becerra answered "yes." Cruz-Becerra and Diaz then loaded the package displaying a shipping label from Mexico[6] in the Escalade and Zamora-Salazar and Diaz left.

         A week later, Victor sent Cruz-Becerra a second package from Mexico via UPS that contained an AC unit. When the package arrived at the port of entry in Laredo, Texas, it was sent for a secondary inspection. It was there that federal agents discovered approximately six kilograms of methamphetamine inside the AC unit's compressor. The agents replaced the drugs inside the compressor with dirt, reassembled the AC unit with a GPS tracker, put a trip wire inside the unit that would notify them if it was opened, placed the unit back inside the original packaging, and put a layer of cellophane around the box. A federal agent disguised as a UPS driver then made a controlled delivery of the package to Cruz-Becerra's residence. When Cruz-Becerra arrived home, he messaged Victor to confirm receipt of the package and again did not open the package that was addressed to him. Victor replied that he would send "someone" to retrieve the package in approximately thirty minutes. A half hour later, Zamora-Salazar and Diaz arrived at Cruz-Becerra's residence in the same Escalade they had driven to retrieve the FedEx package Victor had sent from Mexico a week earlier.[7] The two men exited the vehicle, Zamora-Salazar opened the tailgate, [8] Cruz-Becerra and Diaz loaded the UPS package displaying a mailing label from Mexico in the bed of the vehicle, and Zamora-Salazar and Diaz drove away.

         Federal law enforcement tailed Zamora-Salazar and Diaz via helicopter and ground vehicle as they drove back to their residence which was approximately four to six miles away. When the two men arrived home a short while later, they exited the Escalade, removed the cellophane from the UPS package, and then suddenly pointed at the helicopter, indicating that they had noticed the presence of law enforcement. Zamora-Salazar went inside the house and shortly thereafter fled the property. Zamora-Salazar's wife Samantha consented to a search of the residence, where federal agents found methamphetamine crumbs near the toilet and a loaded sawed-off shotgun in Zamora-Salazar's bedroom.

         Zamora-Salazar attempted to hide inside of a neighbor's car, but the neighbor alerted law enforcement of his location. Zamora-Salazar was arrested and Mirandized. Once he was in custody, Zamora-Salazar stated to federal authorities that he was "not the main person involved" and that he reported to a person named "Big Z." He also acknowledged post-arrest that he had known that the AC unit had contained methamphetamine.

         A three-day jury trial was held and, at the close of the Government's case and at the close of the evidence, Zamora-Salazar moved for a judgment of acquittal which was overruled. Zamora-Salazar was convicted of conspiracy to import 500 grams or more of methamphetamine, [9] aiding and abetting the importation of 500 grams or more of methamphetamine, [10] and being an illegal alien in possession of a firearm.[11]

         The presentence report ("PSR") grouped the importation counts together and assessed a combined total offense level of 42. Included in this calculation was a two-level enhancement for obstruction of justice. U.S.S.G. § 3C1.1 cmt. n.4(A). The PSR based the enhancement on the contents of the Government's pretrial notice of its intent to introduce evidence of other crimes, wrongs, or acts. Fed.R.Evid. 404(b). In this notice, the Government stated that "[o]n or about May 13, 2015, Zamora-Salazar and Cruz-Becerra were arraigned before Magistrate Judge Nancy Johnson. While in the holding cell at the U.S. Federal Courthouse, Zamora-Salazar threatened Cruz-Becerra by asking him whether he knew what happened to the family members of individuals who 'talk.'" Defense counsel objected to the enhancement, stating Zamora-Salazar denied making the statement reported in the PSR. A trial transcript was not available at sentencing and defense counsel proffered that Cruz-Becerra testified that Zamora-Salazar said to him "Do you know what you're doing? There could be problems later on."[12] The district court interjected, stating "[w]e can go get a transcript, but let's assume that's as close as we can, and I kind of remember it generally." Defense counsel continued and argued that the statement should not be interpreted as a threat. The Government argued in response that the statement was meant to intimidate Cruz-Becerra "into not cooperating with the [G]overnment and testifying against him." The district court responded by stating that "I might say also just for the record, I was here and I listened to the entire trial. In fact, that-I believe that was the statement made in the presentence report that the judge, you know, was here at the time." The district court overruled the objection to the enhancement.

         Zamora-Salazar's total offense level of 42, coupled with a criminal history category of II, yielded an advisory Guidelines range of 360 months to life imprisonment. The district court sentenced Zamora-Salazar to a term of 360 months of imprisonment and five years of supervised release. This appeal ensued.

         II. Discussion

         On appeal, Zamora-Salazar first argues that there was insufficient evidence presented at trial to support his convictions for conspiracy to import and importation of methamphetamine. He also argues that the district court erred in imposing the two-level sentencing enhancement for obstruction of justice. We address each argument in turn.

         A. Conspiracy to Import and Importation

         This court conducts a de novo review of "a district court's denial of a post-trial motion for a judgment of acquittal." United States v. Lopez-Monzon, 850 F.3d 202, 206 (5th Cir. 2017). Moving for a judgment of acquittal is considered to be a challenge to the sufficiency of the evidence. Id. The jury's verdict is afforded "great deference" on appeal. Id. In determining whether the evidence was sufficient to support the conviction, the question is whether "any rational trier of fact could have found the essential elements of the crime beyond reasonable doubt." Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Given this court's highly deferential standard of review, the "inquiry is 'limited to whether the jury's verdict was reasonable, not whether we believe it to be correct.'" United States v. Gulley, 526 F.3d 809, 816 (5th Cir. 2008) (per curiam) (quoting United States v. Williams, 264 F.3d 561, 576 (5th Cir. 2001)).

         To uphold the conviction, there is no requirement that the evidence exclude every possible "hypothesis of innocence." Lopez-Monzon, 850 F.3d at 206. "A jury is free to choose among reasonable constructions of the evidence." Id. The reviewing court only ascertains whether the jury made a "rational decision, " not "whether the jury correctly determined guilt or innocence." Id. Credibility choices that support the jury's verdict must be accepted and it is not within this court's province on appeal to reweigh the evidence. United States v. Castaneda, 548 F.App'x 140, 142-43 (5th Cir. 2013) (per curiam) (citation omitted). If the jury was presented with sufficient evidence to support its verdict, the verdict must be upheld. Lopez-Monzon, 850 F.3d at 206.

         Count 1 - Conspiracy to Import ...


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