United States v. Santos Zamora-Salazar , 860 F.3d 826 ( 2017 )

Case: 16-20307 Document: 00514052237 Page: 1 Date Filed: 06/28/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-20307 FILED
June 28, 2017
UNITED STATES OF AMERICA, Lyle W. Cayce
Clerk
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
1 21 U.S.C. §§ 963, 952(a), 960(a)(1), and 960(b)(1).
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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
2 21 U.S.C. §§ 952(a), 960(a)(1) and 960(b)(1); 18 U.S.C. § 2.
3 18 U.S.C. §§ 922(g)(5) and 924(a)(2).
4 Cruz-Becerra and Victor used “WhatsApp” to communicate about the packages.
5 Cruz-Becerra agreed on cross-examination that he assumed that Victor directed the
men to “come get” the packages.
6 The record indicates that federal agents never recovered the FedEx package but they
obtained a copy of the original mailing label through a subpoena issued to FedEx.
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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
7When testifying at trial, Cruz-Becerra identified Zamora-Salazar as the person
driving the Escalade by pointing to him.
8 Although there is some discrepancy in the trial transcript, it appears that Zamora-
Salazar exited the vehicle for the limited purpose of opening the tailgate for Diaz and Cruz-
Becerra to place the UPS package inside of the bed of the Escalade.
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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.’”
9 21 U.S.C. §§ 963, 952(a), 960(a)(1) and 960(b)(1).
10 21 U.S.C. §§ 952(a), 960(a)(1) and 960(b)(1); 18 U.S.C. § 2.
11 18 U.S.C. §§ 922(g)(5) and 924(a)(2). Zamora-Salazar does not appeal his conviction
on this count.
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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
12 The trial transcript reflects that when Cruz-Becerra was asked on the stand, while
in the presence of Zamora-Salazar, to testify as to the statements Zamora-Salazar made to
him outside of the courthouse, Cruz-Becerra replied that Zamora-Salazar had asked him:
“[a]bout did I know what I was doing” and “[a]bout how there could be problems later on.”
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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.
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Count 1 – Conspiracy to Import Methamphetamine 13
To prove conspiracy to import drugs, the Government must establish
that a defendant agreed to import drugs and knowingly and voluntarily
participated in the agreement. United States v. Paul, 142 F.3d 836, 841 (5th
Cir. 1998). “The jury may infer any element of [conspiracy] from
circumstantial evidence.” United States v. Lechuga, 888 F.2d 1472, 1476 (5th
Cir. 1989). A defendant’s agreement may be “inferred from concert of action,”
his “voluntary participation may be inferred from a collocation of
circumstances,” and his “knowledge may be inferred from surrounding
circumstances.” Id. at 1476–77 (internal quotation marks omitted). Although
a defendant’s participation in a conspiracy must be voluntary to support a
guilty verdict, his personal role can be minor. Id. at 1477.
Count 2 – Aiding and Abetting the Importation of Methamphetamine 14
To support a conviction for the crime of importation of a controlled
substance, the Government must establish that: “(1) the defendant played a
role in bringing a quantity of a controlled substance into the United States
from outside of the country; (2) the defendant knew the substance was
controlled; and (3) the defendant knew the substance would enter the United
States.” Lopez-Monzon, 850 F.3d at 206 (quoting United States v. Moreno, 185
F.3d 465, 471 (5th Cir. 1999)). To prove aiding and abetting the importation
of drugs, the Government must establish that the defendant associated with
the criminal venture, purposefully participated in the crime, and sought to
make it successful. United States v. Pando Franco, 503 F.3d 389, 394 (5th Cir.
2007).
13 21 U.S.C. §§ 963, 952(a), 960(a)(1), and 960(b)(1).
14 21 U.S.C. §§ 952(a), 960(a)(1), and 960(b)(1); 18 U.S.C. § 2.
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Zamora-Salazar argues that the evidence was insufficient to support
both importation convictions because the Government failed to prove beyond a
reasonable doubt that he “entered an agreement to import, had knowledge of
the importation, played any role in the importation, shared the criminal intent
to import, or took some step to aid in the importation.” He argues that, while
the evidence showed that he and Diaz rode to pick up two packages of
methamphetamine after they had arrived in the United States, no evidence
showed that he knew the packages came from outside the United States or that
he had any role in bringing the packages into the United States. Citing Paul, 15
Zamora-Salazar argues that his involvement with the methamphetamine
occurred after it arrived in the United States. For the reasons that follow,
these arguments fail.
A review of the record reveals that sufficient evidence was presented at
trial to support Zamora-Salazar’s convictions of conspiracy to import
methamphetamine and importation of methamphetamine. As the
Government correctly points out, the timing and circumstances of the drug
shipments show a “concert of action” supporting the jury’s conclusion that
Zamora-Salazar knowingly and voluntarily participated in an agreement to
import drugs. Lechuga, 888 F.2d at 1476–77. It is undisputed that Cruz-
Becerra and his cousin Victor had an agreement that Victor would ship
packages containing methamphetamine from Mexico to Cruz-Becerra’s home
address in the United States. Each time a package arrived to Cruz-Becerra’s
home, he did not open it even though it was addressed to him. Instead, he
alerted Victor of the package’s arrival and Victor replied that “someone” would
be there in about a half hour to retrieve the drugs. Both times, Zamora-Salazar
showed up to Cruz-Becerra’s home within the timeframe designated by Victor
15 142 F.3d at 842.
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to pick up the packages. Furthermore, when Zamora-Salazar and Diaz arrived
to retrieve the first package with the water cooler inside, Diaz asked Cruz-
Becerra if he was Victor’s cousin, a further indication that the men had likely
directly communicated with Victor. 16
Aside from evidence supporting the jury’s inference that Zamora-Salazar
and Diaz communicated with Victor about the drug shipments, the packages
themselves both displayed shipping labels from Mexico. The FedEx package
with the water cooler inside displayed a shipping label from Mexico. 17 It could
be reasonably inferred that Zamora-Salazar would have expected the second
package also to be from Mexico. Aside from that inference, the fact that the
second package was from Mexico would have been definitively revealed to him
when he opened the back of his Escalade, watched the package being placed in
the bed of the vehicle, and saw that it also had a shipping label from Mexico.
Finally, Zamora-Salazar admitted after he was apprehended and in
federal custody that he was “not the main person involved,” that he reported
to a person by the name of “Big Z,” and that he knew that the AC unit had
contained methamphetamine. These admissions indicate that Zamora-Salazar
16 Citing this court’s opinion in United States v. Campos, No. 92-4573, 1994 WL
144866, at *9 (5th Cir. Apr. 14, 1994), Zamora-Salazar argues that any knowledge that Diaz
had about Victor cannot be imputed to himself. While it is true that this court will not impute
Diaz’s knowledge of Victor to Zamora-Salazar, a reasonable jury could nevertheless infer that
Zamora-Salazar would not drive himself and Diaz to Cruz-Becerra’s home to pick up a
package without any knowledge of where the package came from or who shipped the package.
That Diaz confirmed Victor’s identity with Cruz-Becerra after the two men arrived to pick up
the first drug shipment merely strengthens the reasonableness of the inference. Moreover,
this conclusion is supported by Cruz-Becerra’s testimony at trial that the three men only
briefly greeted one another and did not discuss any details regarding the packages during
either pick-up, suggesting that Zamora-Salazar and Diaz already knew who sent the
packages and where they came from prior to their arrival. See Lechuga, 888 F.2d at 1476–
77 (noting that a defendant’s “knowledge may be inferred from surrounding circumstances”).
17 According to the records subpoenaed from FedEx by the Government, the shipping
label on the package not only reflected an origin of Mexico but the surrounding language on
the package was also in Spanish.
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knowingly and voluntarily chose to participate in a larger scheme involving
others for the purpose of importing drugs. See Lechuga, 888 F.2d at 1477
(observing that a defendant’s participation in a conspiracy must be voluntary
to support a guilty verdict but his personal role can be minor). Accordingly, a
rational jury could infer from this evidence that Zamora-Salazar conspired to
import methamphetamine into the United States. Paul, 142 F.3d at 841
(explaining that, to prove conspiracy to import drugs, the Government must
establish that a defendant agreed to import drugs and knowingly and
voluntarily participated in the agreement).
This evidence also supports Zamora-Salazar’s conviction of importation
of methamphetamine on grounds that: (1) he played a role in bringing
controlled substances into the United States from outside the country; (2) he
knew that the substances were controlled; and (3) he knew the drugs would
enter the United States. Lopez-Monzon, 850 F.3d at 206. First, Zamora-
Salazar’s role in bringing the controlled substances into the United States was
clear: he personally retrieved the drugs each time they were shipped directly
from Mexico to Cruz-Becerra’s residence in Texas. The evidence supports that
Zamora-Salazar was an intended recipient of the drug shipments because
Cruz-Becerra allowed each of the unopened packages to be placed in the bed of
the Escalade Zamora-Salazar was driving, even though Cruz-Becerra’s name
and address were on the mailing labels. Second, Zamora-Salazar conceded
post-arrest that he knew the package with the AC unit had contained
methamphetamine, a controlled substance. Third, Zamora-Salazar arrived at
Cruz-Becerra’s Texas residence to pick up each drug shipment within the
limited timeframe designated by Victor, indicating that he had communicated
with the person who had shipped the drugs from Mexico and knew prior to the
arrival of the shipments that the drugs would enter the United States.
Moreover, each drug shipment displayed a mailing label from Mexico. For the
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reasons discussed above, this evidence equally supports a reasonable inference
that Zamora-Salazar associated with the criminal venture, purposefully
participated in the crime, and sought to make it successful. Pando Franco, 503
F.3d at 394.
Zamora-Salazar’s reliance on Paul is misplaced. In Paul, the evidence
established that a smuggler placed a quantity of cocaine aboard a vessel while
it was docked in Guyana and, several days after the vessel reached the United
States, contacted the defendants to retrieve the drugs. 142 F.3d at 838, 842.
One defendant went to the ship to retrieve the cocaine and the other defendant
did not, although that defendant was ultimately found with directions to the
ship and $10,000. Id. at 842. This court reversed the defendants’ convictions
for conspiracy to import cocaine on grounds that “the evidence did not clearly
establish that [the defendants] agreed to participate in and played a role in
bringing the cocaine into the United States.” Id. at 842 (reasoning that there
was “no proof that either defendant was even aware of the shipment’s existence
until [they were called] to retrieve it”).
Zamora-Salazar argues that, like the defendants in Paul, the evidence
presented at trial showed that his involvement with the methamphetamine
occurred after it arrived in the United States. This argument falls short for
several reasons. Unlike the Paul defendants, Zamora-Salazar was put on
notice that he was retrieving drugs that were being imported into the United
States when he picked up the first package containing methamphetamine in a
water cooler that displayed a shipping label from Mexico. Zamora-Salazar had
a second opportunity to observe the foreign origin of the drugs when he was at
Cruz-Becerra’s home a week later and again saw that the package containing
the AC unit displayed a shipping label from Mexico. Additionally, unlike the
Paul defendants, the record evidence here supports the conclusion that
Zamora-Salazar and Diaz were in prior contact with the person shipping the
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drugs from a foreign country and had knowledge that the drug shipments
would be arriving prior to their delivery at Cruz-Becerra’s residence. 18
Further, unlike the Paul defendants, the evidence suggests that Zamora-
Salazar was an intended recipient of the shipments from Mexico, rather than
Cruz-Becerra, since he retrieved each package within thirty minutes of its
arrival and Cruz-Becerra gave him each unopened package without comment.
The Paul defendants, on the other hand, were not contacted regarding the drug
delivery until days after the vessel where the drugs were located reached the
United States. Id. at 838, 842. Furthermore, there was no evidence presented
in Paul that the defendants were able to observe foreign shipping labels or any
type of label on the packages indicating that the drugs had come from another
country. Accordingly, Paul is not controlling here.
Zamora-Salazar’s reliance on Campos is also misplaced. In Campos, we
distinguished between “the complete absence of evidence” that a defendant is
unaware of a controlled substance’s foreign origin and the “minimal” and thus
sufficient evidence of such knowledge. 1994 WL 144866, at *11. In that case,
this court referenced its opinion in United States v. Reynolds, 511 F.2d 603 (5th
Cir. 1975), wherein it concluded that an investor in a drug conspiracy could be
expected to inquire as to the origin of the drugs. Id. at *10. We also referred
to our opinion in United States v. Merritt, 736 F.2d 223 (5th Cir. 1984), wherein
we reasoned that the defendants were on notice of the foreign origin of the
drugs because the drugs arrived on an ocean-going vessel. Id. at *11. Both of
these cases presumably featured “minimal” and thus sufficient evidence that
18 Zamora-Salazar and Diaz arrived to pick up each shipment within the half hour
timeframe designated by Victor, indicating that they had contemporaneously communicated
with him regarding the drug shipments from Mexico. Additionally, when picking up the first
shipment, Diaz asked Cruz-Becerra if he was Victor’s cousin, confirming that the men were
likely aware that the drugs were being shipped by Victor who lived in Mexico.
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the defendant was aware of the foreign origin of the controlled substances. Id.
at *10–11.
Here, in contrast, there was more than “minimal” evidence that Zamora-
Salazar was aware of the foreign origin of the drugs. The FedEx package that
Zamora-Salazar and Diaz picked up from Cruz-Becerra’s home displayed a
shipping label from Mexico. Zamora-Salazar had a subsequent opportunity to
observe the foreign origin of the drugs when he picked up the UPS package,
from the same location, displaying yet another shipping label from Mexico.
Moreover, Zamora-Salazar’s arrival at Cruz-Becerra’s home within thirty
minutes of Victor messaging Cruz-Becerra from Mexico to alert him that
someone was coming to retrieve the drugs indicates that Zamora-Salazar had
prior communication with Victor and knew he was retrieving shipments from
Mexico before he even saw the shipping labels. A rational jury could
reasonably conclude from these facts that there was at least “minimal”
evidence that Zamora-Salazar was aware of the foreign origin of the packages
containing the methamphetamine. See id. at *11.
In light of the aforementioned reasoning and this court’s high level of
deference afforded to the jury’s verdict on appeal, we hold that sufficient
evidence was presented at trial to support Zamora-Salazar’s convictions for
conspiracy to import and importation of methamphetamine. See Paul, 142
F.3d at 841; Lopez-Monzon, 850 F.3d at 206; Gulley, 526 F.3d at 816. 19
19 Citing Paul, Zamora-Salazar argues that “the fundamental problem with the
government’s argument is its confusion between evidence that is sufficient to support
convictions for conspiring to import and importing a controlled substance and evidence that
i[s] sufficient to support convictions for conspiring to possess with intent to distribute and
distributing a controlled substance.” See 142 F.3d at 840–42. The implication here is that
the Government charged Zamora-Salazar with the wrong crimes. This argument fails,
however, in light of our holding that the evidence was sufficient to support Zamora-Salazar’s
importation convictions. See Paul, 142 F.3d at 841; Lopez-Monzon, 850 F.3d at 206.
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B. Obstruction of Justice Sentencing Enhancement
Zamora-Salazar also argues that the district court clearly erred in
imposing the sentencing enhancement for obstruction of justice. We disagree.
Section 3C1.1 provides for a two-level enhancement of the offense level
if a defendant attempted to obstruct or impede the administration of justice by
attempting to threaten, intimidate, or otherwise unlawfully influence a
codefendant. U.S. SENTENCING GUIDELINES MANUAL § 3C1.1 cmt. n.4(A) (U.S.
SENTENCING COMM’N 2015). A finding of obstruction of justice is a factual
finding that is reviewed for clear error. United States v. Juarez-Duarte, 513
F.3d 204, 208 (5th Cir. 2008) (per curiam). A factual finding is not clearly
erroneous if it “is plausible in light of the record as a whole.” Id. “[I]n
determining whether an enhancement applies, a district court is permitted to
draw reasonable inferences from the facts, and these inferences are fact-
findings reviewed for clear error as well.” United States v. Caldwell, 448 F.3d
287, 290 (5th Cir. 2006).
Zamora-Salazar first argues that the district court equated the PSR’s
version of his alleged threat with Cruz-Becerra’s trial testimony and that the
district court erred in doing so because these versions differ and trial testimony
is more reliable. 20 This argument is not supported by the record. The
sentencing transcript reflects that the district court accepted defense counsel’s
version of Cruz-Becerra’s trial testimony for purposes of argument. 21 Defense
20 According to the PSR summary, the Government submitted a Rule 404(b) notice
which 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.’” In contrast at the
sentencing hearing, defense counsel asserted that Cruz-Becerra testified at trial that
Zamora-Salazar said to him “Do you know what you’re doing? There could be problems later
on.”
21 During the sentencing hearing, the court and the parties acknowledged that they
did not have a copy of the trial transcript, which prompted defense counsel to paraphrase
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counsel argued that the trial testimony did not support the enhancement and
the Government contended that the testimony did support the enhancement.
In spite of accepting defense counsel’s paraphrased version of Cruz-Becerra’s
trial testimony, the district court overruled the objection.
Zamora-Salazar further argues that Cruz-Becerra’s trial testimony did
not support the enhancement because his alleged statements to Cruz-Becerra
were too vague to have constituted a threat. As noted, the district court
accepted for purposes of argument that Cruz-Becerra testified that he spoke
with Zamora-Salazar at the federal courthouse after they were arrested and
that Zamora-Salazar asked him if he knew what he was doing and that “there
could be problems later on.” The record as a whole plausibly reflects that
Zamora-Salazar was aware prior to making these statements that Cruz-
Becerra had cooperated with the Government by identifying him as a
participant in the offense. See Juarez-Duarte, 513 F.3d at 208. The record
evidence also reasonably supports the conclusion that Zamora-Salazar made
these statements in order to threaten or intimidate Cruz-Becerra and to
dissuade him from further cooperation. See Caldwell, 448 F.3d at 290.
In light of this evidence, we conclude that the district court did not
clearly err in imposing the obstruction of justice sentencing enhancement. See
U.S. SENTENCING GUIDELINES MANUAL § 3C1.1 cmt. n.4(A) (U.S. SENTENCING
COMM’N 2015); Juarez-Duarte, 513 F.3d at 208.
Cruz-Becerra’s trial testimony. The district court accepted that version but also commented
that it “believe[d] that was the statement made in the presentence report . . . .” We disagree
with Zamora-Salazar’s argument that the district court’s subsequent comment somehow
resulted in its acceptance of the PSR version over the trial testimony version of the statement.
At most, the district court indicated that it “believed” that the statement in the PSR was
similar to the paraphrased trial testimony statement that it had just accepted for purposes
of argument. This does not compel the conclusion, however, that the statement in the PSR
was the statement the court relied on instead of the trial testimony. Rather, it suggests that
the district court did not recall exactly what statement was reflected in the PSR.
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Case: 16-20307 Document: 00514052237 Page: 16 Date Filed: 06/28/2017
No. 16-20307
III. Conclusion
For the foregoing reasons, Defendant-Appellant Santos Alfonso Zamora-
Salazar’s convictions and sentence are AFFIRMED.
16