Case: 19-50687      Document: 00515444813         Page: 1    Date Filed: 06/08/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                          United States Court of Appeals
                                                   Fifth Circuit

                                                                           FILED
                                                                         June 8, 2020
                                    No. 19-50687                        Lyle W. Cayce
                                  Summary Calendar                           Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

HORACIO SANTAMARIA, JR.,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 4:18-CR-756-1


Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Horacio Santamaria, Jr., was convicted by a jury of aiding and abetting
the possession with intent to distribute marijuana in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(B), and 18 U.S.C. § 2, and he was sentenced within the
guidelines range to 151 months of imprisonment and five years of supervised
release. He now appeals his conviction and his sentence, arguing that the
evidence was insufficient to support his conviction and that his sentence is


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5 TH
CIR. R. 47.5.4.
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                                 No. 19-50687

procedurally unreasonable because the district court’s drug quantity
calculation was erroneous and because the application of enhancements under
U.S.S.G. § 3D1.1 and U.S.S.G. § 2D1.1(b)(16)(B)(i) were not warranted in light
of the record.
      A defendant’s sufficiency-of-the-evidence claim is “reviewed under a
stricter than usual standard” where, as in this case, the defendant failed to
renew his motion for judgment of acquittal at the close of all the evidence,
United States v. Green, 

, 895 (5th Cir. 2002). Thus, by failing to
do so, Santamaria has not preserved his claim for appeal, and it is reviewed
for a “manifest miscarriage of justice.” United States v. Davis, 

,
336 (5th Cir. 2012); FED R. CRIM. P. 29.
      Santamaria argues that the evidence was insufficient to show that he
purposefully associated with the transportation of marijuana on January 3,
2018, and that he sought by his actions for the transportation of marijuana to
succeed.   We disagree.   The record is not devoid of evidence pointing to
Santamaria’s guilt, nor is the evidence “so tenuous that a conviction is
shocking.” United States v. Delgado, 

, 331 (5th Cir. 2012) (en
banc) (internal quotation marks and emphasis omitted). Moreover, there was
evidence, both direct and circumstantial, from which the jury could have
reasonably inferred that Santamaria aided and abetted in the possession with
intent to distribute marijuana. Accordingly, his conviction is affirmed.
      Because Santamaria has preserved his challenges to the procedural
reasonableness of his sentence, we review the district court’s interpretation
and application of the Sentencing Guidelines de novo and its factual findings,
including the determination of what constitutes relevant conduct, for clear
error. United States v. Williams, 

, 292 (5th Cir. 2010). With
respect to Santamaria’s challenge to the district court’s drug quantity



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                                 No. 19-50687

determination, a defendant’s “base offense level can reflect quantities of drugs
not specified in the count of conviction if they were part of the same course of
conduct or part of a common scheme or plan as the count of conviction.” United
States v. Rhine, 

, 885 (5th Cir. 2009) (internal quotation marks
and citation omitted). Here, the district court did not clearly err by holding
Santamaria accountable for 595.2 kilograms of marijuana based on relevant
conduct, as that determination was plausible in light of the record as a whole.
See id.; United States v. Cooper, 

, 238 (5th Cir. 2001).
      Santamaria also argues that the Government failed to prove by a
preponderance of the evidence that he organized, led, managed, or supervised
any other participant warranting the section 3B1.1(c) enhancement. Again,
we find no clear error with the district court’s application of this enhancement.
Based on the evidence before it, the district court could have plausibly found
that Santamaria was at least a manager or supervisor in the drug trafficking
scheme. In reaching this conclusion, we give deference to the district court’s
credibility determinations, including credibility determinations concerning
statements contained in the PSR, see United States v. Perez, 

, 331-
32 (5th Cir. 2000), and recognize that where there is more than one permissible
view of the evidence supporting a sentencing enhancement, the district court’s
decision to rely on one view over others does not constitute clear error, see
United States v. Gillyard, 

, 509 (5th Cir. 2001).
      Finally, Santamaria argues that the enhancement under section
2D1.1(b)(16)(B)(i) was not warranted because there was no evidence showing
that he involved his minor child in the transportation of marijuana. That
Guideline provides for a two-level enhancement if the defendant received an
adjustment under section 3B1.1 and “knowing that an individual was (i) less
than 18 years of age . . . distributed a controlled substance to that individual



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                                 No. 19-50687

or involved that individual in the offense.” § 2D1.1(b)(16)(B)(i). We find no
error with the district court’s application of that provision in this case. See
United States v. Benitez, 

, 249 (5th Cir. 2015).
      Accordingly, the judgment of the district court is AFFIRMED.




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