United States v. Silviano Tinoco Nieto , 570 F. App'x 393 ( 2014 )

Case: 13-60059 Document: 00512651772 Page: 1 Date Filed: 06/04/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 13-60059
Fifth Circuit
FILED
Summary Calendar June 4, 2014
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
SILVIANO TINOCO NIETO; GERARDO ORTIZ MENDEZ,
Defendants-Appellants
Appeals from the United States District Court
for the Northern District of Mississippi
USDC No. 1:12-CR-31-3
Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM: *
Following a jury trial, Silviano Tinoco Nieto and Gerardo Ortiz Mendez
were convicted of conspiracy to possess 500 grams or more of cocaine with
intent to distribute; aiding and abetting the possession of this amount of
cocaine with intent to distribute; conspiracy to possess one kilogram or more
of heroin with intent to distribute; and aiding and abetting possession with
intent to distribute this amount of heroin. Tinoco Nieto was sentenced to serve
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-60059
121 months in prison and a five-year term of supervised release; Ortiz Mendez
was sentenced to serve 135 months in prison and a five-year term of supervised
release. They have appealed their convictions and sentences.
First, they argue that the evidence adduced at trial is insufficient to
support their convictions. We disagree. In determining whether the evidence
was sufficient, “the relevant question is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” Jackson
v. Virginia, 443 U.S. 307, 319 (1979). This standard “leaves juries broad
discretion in deciding what inferences to draw from the evidence presented at
trial, requiring only that jurors draw reasonable inferences from basic facts to
ultimate facts.” Coleman v. Johnson, 132 S. Ct. 2060, 2064 (2012) (internal
quotation marks and citation omitted).
Our review of the record shows that the trial evidence, when viewed in
the light most favorable to the Government, was such that the jury could
reasonably infer that Ortiz Mendez and Tinoco Nieto conspired with others to
possess cocaine and heroin with intent to distribute and that Ortiz Mendez and
Tinoco Nieto aided and abetted possession of these drugs with intent to
distribute. The evidence thus suffices to uphold their convictions. See Jackson,
443 U.S. at 319; Coleman, 132 S. Ct. at 2064.
Insofar as the appellants argue that the evidence is insufficient because
they testified as to their innocence, this argument is unavailing. The jury alone
decides the credibility of witnesses and chooses among reasonable
constructions of the evidence. United States v. Zuniga, 18 F.3d 1254, 1260 (5th
Cir. 1994). The jury apparently rejected the appellants’ version of events, and
we will not second-guess that decision. See Zuniga, 18 F.3d at 1260.
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Insofar as Ortiz Mendez argues that his convictions should be reversed
because his case is similar to United States v. Gardea Carrasco, 830 F.2d 41,
45 (5th Cir. 1987), this argument is unavailing because that case is materially
distinguishable. We concluded that a conviction at issue in Gardea Carrasco
could not stand because the evidence tying the defendant to the conspiracy was
“tenuous.” 830 F.2d at 45. The evidence against the appellants, which
included testimony from which the jury could infer that they were about to load
drugs into a hidden compartment in a car when they were arrested, is stronger
than that which was at issue in Gardea Carrasco. We reject Tinoco Nieto’s and
Ortiz Mendez’s challenges to the sufficiency of the evidence.
We likewise reject their challenges to their sentences. Both appellants
argue that the district court erred by not concluding that they were minimal
or minor participants in the offense and adjusting their guidelines sentencing
ranges accordingly. This court reviews the district court’s finding on minor
participant status for clear error and will affirm if the finding is plausible in
light of the entire record. United States v. Silva-De Hoyos, 702 F.3d 843, 846
(5th Cir. 2012). Additionally, the district court’s refusal to grant this reduction
is entitled to great deference, United States v. Devine, 934 F.2d 1325, 1340 (5th
Cir. 1991), and it is infrequently awarded. United States v. Tremelling, 43 F.3d
148, 153 (5th Cir. 1995).
Tinoco Nieto and Ortiz Mendez have not shown clear error in connection
with the district court’s denial of this reduction. See Silva-De Hoyos, 702 F.3d
at 846. There is nothing to show that they were “peripheral to the
advancement of the illicit activity.” See United States v. Villanueva, 408 F.3d
193, 204 (5th Cir. 2005) (internal quotation marks and citation omitted). To
the extent they argue that they should have received this reduction because
they were less involved in and less important to the conspiracy than others,
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they are mistaken. See United States v. Franklin, 561 F.3d 398, 407 (5th Cir.
2009). The judgment of the district court is AFFIRMED.
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