IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-40789

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

ALEISHA O. GRAY,

Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:18-CR-84-2

Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Following a jury trial, Aleisha O. Gray was convicted of one count of 

conspiring to transport illegal aliens within the United States, and two counts 

of transporting illegal aliens within the United States, in violation of 8 U.S.C. 

§ 1324. The district court varied downwardly from the sentencing range under 

the advisory Sentencing Guidelines and sentenced Gray to, inter alia, 20

months’ imprisonment. 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

July 16, 2019

Lyle W. Cayce

Clerk

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She challenges her convictions and sentence. Regarding the former, 

Gray, who elected to testify at trial, contends the evidence adduced as to each 

count of conviction was insufficient, claiming the Government did not prove

she: knowingly participated in a conspiracy to transport illegal aliens; and was 

aware she was transporting illegal aliens in the trunk of a rental vehicle. 

She failed, however, to preserve her sufficiency challenges because, 

although she moved for a judgment of acquittal at the close of the 

Government’s case, she did not renew the motion after the close of all evidence. 

See United States v. Davis, 690 F.3d 330, 336 (5th Cir. 2012). Therefore, our

review is limited to whether the record is “devoid of evidence pointing to guilt”

or the evidence on an element of the offense is “so tenuous that a conviction 

would be shocking”. Id. at 336–37 (internal quotation marks and citation 

omitted). 

As noted, Gray elected to testify at trial. The evidence, viewed “in the 

[requisite] light most favorable to the [G]overnment” and with “all reasonable 

inferences and credibility choices” construed in favor of the verdict, supports 

that Gray: knowingly agreed, with at least one other person, to transport 

illegal aliens within the United States for private financial gain; and knew she 

was transporting illegal aliens. See id. at 337 (internal quotation marks and 

citation omitted). The record reflects Gray was recruited by, and acted in 

accordance with the aims and directions of, an organized network that 

exhibited coordination, planning, and conformity in smuggling illegal aliens 

and moving them within the United States. Her role—driving the aliens across 

the border checkpoint to a destination at which they would make additional, 

and in some cases final, payments—complemented the jobs of others in the 

network and fulfilled a goal of the enterprise. Because the success of the 

network relied on Gray’s willingness to perform her job, she reasonably could 

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be viewed as a knowing participant in the conspiracy to transport illegal aliens. 

See United States v. Rodriguez, 553 F.3d 380, 390–91 (5th Cir. 2008).

Furthermore, aside from the circumstances and conditions of the job that 

suggested it involved transporting aliens, the evidence supports that Gray: 

was explicitly told before crossing the border checkpoint that she was expected

to transport aliens in the trunk of her rental vehicle; and knew her 

codefendant—who had been recruited by the same network under identical 

conditions and provided a vehicle also rented by Gray—was attempting to 

drive aliens across the checkpoint on behalf of the enterprise. Notably, at the 

checkpoint and in later interviews with agents, Gray, inter alia, displayed 

nervous behavior, provided a seemingly illogical description of her itinerary,

and could not explain how the aliens were able to access the trunk of the rental

vehicle without her knowledge. See United States v. Diaz-Carreon, 915 F.2d 

951, 954–55 (5th Cir. 1990); United States v. Richardson, 848 F.2d 509, 513 

(5th Cir. 1988). 

Also, she was the sole driver and occupant of the vehicle in which the 

aliens—who were to pay a portion of the smuggling fees after their arrival in 

Houston—were concealed. Therefore, she presumably would not have been 

allowed to transport the aliens if she was not aware of the network and the 

aliens and did not have an incentive to keep them hidden. 

Although Gray contends the evidence supports she did not know about 

the aliens, the jury, as evidenced by its verdict, found her testimony in that 

regard not to be credible. And, as our case law dictates, “credibility

determinations . . . are the province of the jury, not appellate judges”. United 

States v. Morrison, 833 F.3d 491, 500 (5th Cir. 2016) (citation omitted). Again, 

we must defer to that finding and construe all evidence and reasonable 

inferences in favor of the verdict. See Davis, 690 F.3d at 337. Gray, therefore,

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has not shown the record is devoid of evidence she knowingly agreed with 

others to transport illegal aliens within the United States for financial gain or 

that the evidence of her knowledge was so tenuous as to make her conviction 

shocking. See id. at 336–37. 

Regarding her sentence, Gray claims, consistent with her objection in 

district court, the court incorrectly applied an obstruction-of-justice 

adjustment under Guideline § 3C1.1 (providing for a two-level enhancement

for obstructing justice), based on its finding she committed perjury by, inter 

alia, falsely testifying at trial she and her codefendant did not talk while they 

were in Texas to complete jobs for the conspiracy. 

Although post-Booker, the Guidelines are advisory only, the district 

court must avoid significant procedural error, such as improperly calculating 

the Guidelines sentencing range. Gall v. United States, 552 U.S. 38, 48–51 

(2007). If no such procedural error exists, a properly preserved objection to an 

ultimate sentence is reviewed for substantive reasonableness under an abuseof-discretion standard. Id. at 51; United States v. Delgado-Martinez, 564 F.3d 

750, 751–53 (5th Cir. 2009). In that respect, for issues preserved in district 

court, its application of the Guidelines is reviewed de novo; its factual findings, 

only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 

764 (5th Cir. 2008). Accordingly, we review for clear error the finding, objectedto in district court, that Gray obstructed justice. See United States v. JuarezDuarte, 513 F.3d 204, 208 (5th Cir. 2008). 

The record supports that Gray gave testimony about her discussions 

with her codefendant that reasonably could be viewed as a willful denial of 

material facts. See United States v. Dunnigan, 507 U.S. 87, 94 (1993); United 

States v. Perez-Solis, 709 F.3d 453, 469 (5th Cir. 2013); U.S.S.G. § 3C1.1, cmt. 

n.4(B) (explaining covered conduct under § 3C1.1 includes “committing, 

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suborning, or attempting to suborn perjury . . . if such perjury pertains to 

conduct that forms the basis of the offense of conviction”). Gray repeatedly 

testified she did not talk to her codefendant after they came to Texas; but, the 

evidence at trial—and additional evidence in the unrebutted presentence

investigation report (PSR)—reflected that they had substantive discussions on 

cell phones after their arrivals. The false testimony was relevant to the 

material fact of whether Gray was aware she was transporting illegal aliens 

and, therefore, was designed to have a substantial effect on the outcome of the 

proceeding. See United States v. Como, 53 F.3d 87, 90 (5th Cir. 1995); United 

States v. Cabral-Castillo, 35 F.3d 182, 187 (5th Cir. 1994); U.S.S.G. § 3C1.1,

cmt. n.6 (defining “material” evidence).

Her claim her perjurious testimony was the result of nervousness or 

confusion is unsupported by the record. The district court—which adopted the 

PSR and therefore made independent findings to support that Gray committed 

perjury—did not commit clear error in finding Gray obstructed justice for its 

purposes of assessing a § 3C1.1 enhancement. See Perez-Solis, 709 F.3d at 469; 

Juarez-Duarte, 513 F.3d at 208. 

AFFIRMED.

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