from the United States District Court for the Southern
District of Texas
STEWART, Chief Judge, and WIENER and PRADO, Circuit Judges.
E. STEWART, Chief Judge:
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.
Facts & Procedural History
being taken into federal custody on April 6, 2015,
Zamora-Salazar was charged, along with Mario Cruz-Becerra,
with conspiring to import methamphetamine and aiding and abetting importation of
was also charged with being an illegal alien in possession of
a firearm. 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.
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.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. 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 in the Escalade and
Zamora-Salazar and Diaz left.
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. The two men
exited the vehicle, Zamora-Salazar opened the tailgate,
 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.
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.
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.
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,  aiding and abetting the importation of 500
grams or more of methamphetamine,  and being an illegal alien in possession
of a firearm.
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." 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
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.
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.
Conspiracy to Import and Importation
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)).
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.
1 - Conspiracy to Import ...