United States v. Salazar

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.

--------------------
Appeal from the United States District Court
for the Southern District of Texas
No. 5:04-CR-1697-1
--------------------

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should not be published and is not precedent except under the limited circum-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.