United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 5, 2006
Charles R. Fulbruge III
Clerk
No. 05-40601
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID SALAZAR,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
No. 5:04-CR-1697-1
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Before SMITH, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
David Salazar appeals his jury conviction of, and sentence
for, conspiracy to possess with intent to distribute more than 100
kilograms of marihuana in violation of 21 U.S.C. §§ 841(a)(1) and
846. He contends the evidence at trial was legally insufficient to
sustain the verdict. Specifically, he argues that the only evi-
*
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should not be published and is not precedent except under the limited circum-
stances set forth in 5TH CIR. R. 47.5.4.
dence that a conspiracy existed and that he knew of and voluntarily
joined in it was the incredible, uncorroborated, and illogical tes-
timony of a biased witness. Further, he avers that the purportedly
corroborative evidence gives equal or nearly equal circumstantial
support to a theory of innocence.
Viewing the evidence in the light most favorable to the ver-
dict, the evidence was sufficient to establish that Salazar con-
spired to possess with intent to distribute more than 100 kilograms
of marihuana. Lee Wright testified that he and Salazar entered
into an agreement to transport marihuana from Laredo, Texas, to
Dallas, Texas, and Chicago, Illinois, in exchange for $50,000 each.
Wright and Salazar then picked up marihuana at two locations and
loaded it into a tractor. Wright’s testimony was not incredible or
factually insubstantial on its face and was corroborated in part by
the other witnesses’ testimony. See United States v. Westbrook,
119 F.3d 1176, 1190 (5th Cir. 1997).
The mere presence of inconsistencies does not render the evi-
dence insufficient. See United States v. Greenwood, 974 F.2d 1449,
1458 (5th Cir. 1992). The jury accepted Wright’s testimony and re-
jected Salazar’s explanation of events. We will not disturb that
credibility determination. See United States v. Runyan, 290 F.3d
223, 240 (5th Cir. 2002). Therefore, the evidence was sufficient
to sustain the verdict.
Salazar contends that the district court failed to consider
all the factors set forth in 18 U.S.C. § 3553 in determining his
sentence. Specifically, he urges that the court failed to consider
the nature and circumstances of the offense and his history and
characteristics, because the court found that those factors had al-
ready been taken into account in the sentencing guidelines. Thus,
by sentencing Salazar within the recommended guideline range, the
court effectively treated the guidelines as mandatory in violation
of United States v. Booker, 543 U.S. 220 (2005).
Under the discretionary sentencing scheme established by
Booker, district courts retain the duty to consider the sentencing
guidelines along with the sentencing factors set forth in
§ 3553(a). United States v. Mares, 402 F.3d 511, 518-19 (5th
Cir.), cert. denied, 126 S. Ct. 43 (2005). Salazar’s sentence is
within the guideline range and is presumptively reasonable. See
United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). In our
reasonableness review, we infer that the district court considered
the § 3553(a) factors, including the nature of the offense and Sal-
azar’s history and characteristics, in imposing sentence. See
Mares, 402 F.3d at 519.
Accordingly, the judgment is AFFIRMED.