Case: 09-40113     Document: 00511122066          Page: 1    Date Filed: 05/26/2010




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

                                                  FILED
                                                                            May 26, 2010
                                     No. 09-40113
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ESMERALDA GRISELDA DE LOS SANTOS,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:08-CR-917-1


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Esmeralda Griselda De Los Santos was convicted by a jury of conspiracy
to possess with intent to distribute cocaine and methamphetamine, and
possession with intent to distribute cocaine and methamphetamine; she received
concurrent sentences of 292 months in prison.                On appeal, De Los Santos
contends that she was deprived of a fair trial because she was unable to present
a “complete” defense of duress and coercion. She contends that the district court
erred in sustaining the Government’s hearsay objections to her attempts to

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-40113    Document: 00511122066 Page: 2        Date Filed: 05/26/2010
                                 No. 09-40113

testify about the threats made against herself and her family. Because trial
counsel “made no attempt to inform the district court” why the testimony did not
qualify as hearsay, we do not “consider the propriety of the decision to exclude
the evidence at issue.” United States v. Clements, 

, 1336 (5th Cir.
1996). Even if De Los’s Santos’s contention that she was denied a fair trial is
construed as an assertion that her substantial rights were affected, she has not
established that the district court abused its discretion in denying De Los Santos
the opportunity to testify about the exact language of the threats. See United
States v. Crawley, 

, 353 (5th Cir.), cert. denied, 

(2008); United States v. Nguyen, 

, 571 (5th Cir. 2007).
      De Los Santos also contends that the district court erred in denying her
untimely motion for a continuance. She sought a continuance so that she could
find witnesses to support her coercion defense by testifying about the dangers
of the drug trade in Mexico. Because De Los Santos has not established that the
district court abused its discretion in denying the untimely motion or that she
“suffered serious prejudice,” we will not reverse the district court’s decision.
United States v. Scott, 

, 1393 (5th Cir. 1995).
      De Los Santos contends that her trial counsel rendered ineffective
assistance by failing to file pretrial motions, by failing to obtain witnesses to
support her coercion defense, and by not arguing that the testimony about the
threats made against De Los Santos and her family did not constitute hearsay.
Because the record does not reveal an “apparent” or “obvious” shortcoming by
trial counsel, we decline to consider De Los Santos’s ineffective assistance claims
on direct appeal. Massaro v. United States, 

, 508 (2003).
      De Los Santos also maintains that the district court erred in imposing a
two-level sentencing enhancement for obstruction of justice, based on the
probation officer’s assertion that she had perjured herself. The district court
considered various statements made by De Los Santos during her trial and
concluded that the statements were false, that they pertained to material

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                                No. 09-40113

matters, and that they were made willfully rather than because of a mistake or
confusion.   Because the court’s findings established a factual predicate for
finding perjury, the district court did not clearly err in imposing the
enhancement. See United States v. Creech, 

, 270-71 (5th Cir. 2005);
United States v. Wild, 

, 308 (5th Cir. 1996).
      The judgment of the district court is therefore AFFIRMED.




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