United States v. Alma Lucrecia Hernandez-Preciado

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-15813
Non-Argument Calendar
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D.C. Docket No. 8:11-cr-00486-SCB-MAP-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALMA LUCRECIA HERNANDEZ-PRECIADO,
a.k.a. La Tia,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(April 28, 2015)
Before TJOFLAT, JULIE CARNES, and ANDERSON, Circuit Judges.
PER CURIAM:
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Alma Lucrecia Hernandez-Preciado appeals her convictions and 360-
months’ total sentence, imposed after she was convicted of one count of conspiracy
to possess with intent to distribute cocaine while aboard a vessel subject to the
jurisdiction of the United States, in violation of 46 U.S.C. §§ 70503(a),
70506(a)-(b), 21 U.S.C. § 960(b)(1)(B)(ii), and 18 U.S.C. § 3238; and one count of
aiding and abetting possession with intent to distribute cocaine while aboard a
vessel subject to the jurisdiction of the United States, in violation of 46 U.S.C.
§§ 70503(a), 70506(a), 18 U.S.C. §§ 2, 3238, and 21 U.S.C. § 960(b)(1)(B)(ii). At
sentencing, the district court granted Hernandez-Preciado her request of a
downward variance to 360-months’ imprisonment from an advisory guideline of
life imprisonment.
On appeal, Hernandez-Preciado argues that the district court erred in
denying her motion for judgment of acquittal because the government’s evidence
was insufficient to prove beyond a reasonable doubt that she was involved in
cocaine trafficking. She argues that the testimony of the three key government
witnesses was unreliable, inconsistent, and incredible. She also challenges, for the
first time on appeal, the Government agent’s testimony regarding the meaning of
slang words in emails Hernandez-Preciado sent and received.
We review de novo a district court’s denial of judgment of acquittal based on
sufficiency of evidence grounds. United States v. Capers, 708 F.3d 1286, 1296
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(11th Cir.), cert. denied, 134 S. Ct. 108, 145, 239 (2013). We consider the evidence
in the light most favorable to the government, drawing all reasonable inferences
and credibility in the government’s favor. Id. “A jury’s verdict cannot be
overturned if any reasonable construction of the evidence would have allowed the
jury to find the defendant guilty beyond a reasonable doubt.” United States v.
Herrera, 931 F.2d 761, 762 (11th Cir. 1991). We review issues that are raised for
the first time on appeal for plain error only. United States v. Smith, 459 F.3d 1276,
1287 (11th Cir. 2006). Under plain error review, the defendant must show: “(1)
error, (2) that is plain, and (3) that affects substantial rights.” United States v.
Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005) (quotation omitted). We may
then exercise our discretion to notice a forfeited error, but only if the error
seriously “affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. (quotation omitted). Error is not plain unless it is clear or
obvious under current law. United States v. Olano, 507 U.S. 725, 734, 113 S. Ct.
1770, 1777, 123 L. Ed. 2d 508 (1993).
Determination of a witness’s credibility is the exclusive province of the jury.
United States v. Feliciano, 761 F.3d 1202, 1206 (11th Cir.), cert.denied, (U.S. Dec.
1, 2014) (No. 14-6890). We may not revisit the question of credibility unless the
testimony is “incredible as a matter of law,” meaning that witnesses could not have
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possibly observed the facts or that the events discussed could not have occurred
under the laws of nature. Id. (quotations omitted).
To prove that a conspiracy exists, the government must establish that an
agreement existed between two or more persons and that the defendant knowingly
and voluntarily participated in it. United States v. Tinoco, 304 F.3d 1088, 1122
(11th Cir. 2002). In order to support a conviction for possession with intent to
distribute, the government must prove that the defendant had (1) knowing (2)
possession of drugs and (3) intent to distribute them. United States v. Faust, 456
F.3d 1342, 1345 (11th Cir. 2006).
Any person who aids, abets, or counsels another during the commission of a
crime is punished as if that person were a principal to the crime. 18 U.S.C. § 2.
To prove guilt under a theory of aiding and abetting, the government must prove:
“(1) the substantive offense was committed; (2) the defendant contributed to and
furthered the offense; and (3) the defendant intended to aid in its commission.”
Capers, 708 F.3d at 1306-07.
There was sufficient evidence for a reasonable jury to find Hernandez-
Preciado guilty on both counts. Viewing the evidence in the light most favorable
to the government, a reasonable construction of the evidence supports the jury’s
determination that Hernandez-Preciado organized, alongside other individuals, the
trafficking of cocaine from other countries into Guatemala. See Herrera, 931 F.2d
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at 762. A reasonable construction of the evidence would also allow the jury to find
that Hernandez-Preciado furthered the drug trafficking offense by providing the
necessary boat, equipment, and crew members to effectuate the offense. See id.
In addition, the testimony at trial was not “incredible as a matter of law”
because the testimonies did not speak to matters the witnesses could not have
possibly seen nor involved events that were against the laws of nature. See id.
Any inconsistencies or gaps in the testimonies were credibility determinations to
be made by the jury. See id. Reviewing her challenge to the agent’s testimony for
plain error, we note that the Government did not present the agent as an expert
witness at trial. The jury was free to determine his credibility and he testified
about his Spanish language capabilities and background in investigating
trafficking, which the jury could use to determine his credibility regarding his
understanding of the alleged meaning of the emails. Viewing his testimony in the
light most favorable to the Government, the testimony could have supported a
conviction.
Hernandez-Preciado further argues on appeal that the district court abused
its discretion by imposing a substantively unreasonable sentence, based only on the
amount of cocaine involved and the guideline range. She argues that the district
court failed to consider any of the other facts under § 3553(a), including the nature
and circumstances of the offense and the need to provide a just punishment.
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Invited error precludes us from reversing. See United States v. Silvestri, 409
F.3d 1311, 1327-28 (11th Cir. 2005). “[A] party may not challenge as error a
ruling or other trial proceeding invited by that party.” United States v. Ross, 131
F.3d 970, 988 (11th Cir. 1997) (quotations omitted). A defendant invites error
when she expressly induces or invites the district court to impose a certain
sentence. See United States v. Love, 449 F.3d 1154, 1157 (11th Cir. 2006).
During the sentencing hearing, Hernandez-Preciado stated that a sentence of
30-years’ imprisonment would be sufficient to achieve the purposes of sentencing.
She also did not object after the district court sentenced her to this imprisonment
term. Therefore, we may not review the substantive reasonableness of her sentence
because she invited the error. See id.; Silvestri, 409 F.3d at 1327-28.
For the above reasons, we affirm Hernandez-Preciado’s convictions and
sentences.
AFFIRMED.
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