IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-40294

Summary Calendar

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

MARIA ABIGAIL CONTRERAS, 

 Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:11-CR-983-1

Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

A jury convicted Maria Abigail Contreras for possessing with intent to

distribute more than 500 grams of methamphetamine and conspiring to do the

same. She contends that insufficient evidence supports those convictions and

argues that her sentence was substantively unreasonable. We disagree.

I.

United States Court of Appeals

Fifth Circuit

F I L E D

April 19, 2013

Lyle W. Cayce

Clerk

* 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: 12-40294 Document: 00512214592 Page: 1 Date Filed: 04/19/2013
No. 12-40294

“A challenge to the sufficiency of the evidence that is procedurally

preserved, as th[ese] challenge[s] w[ere], is reviewed de novo.”1

A.

“The offense of possession with the intent to distribute requires proof of (1)

possession, (2) knowledge, and (3) intent to distribute.”2 The trial evidence

showed that Contreras, who did not know how to drive, persuaded an

acquaintance to cross a black Ford Mustang into the United States. She then

recruited the acquaintance’s husband to drive the vehicle to Houston and

rebuffed his offer to use his pickup truck for the journey. When contraband was

discovered at a checkpoint, Contreras gave inconsistent statements about the

events that led to her presence in a vehicle loaded with approximately 4,716

kilograms of methamphetamine—a quantity worth at least $350,000. A witness

also testified that Contreras asked whether there would be dogs at the

checkpoint, suggesting a concern that drugs might be found in the vehicle. With

respect to the possession with intent to distribute conviction, this is evidence

enough.3

B.

To establish that a defendant was a member of a drug conspiracy, the

government must demonstrate “‘(1) an agreement between two or more persons

1 United States v. McElwee, 646 F.3d 328, 340 (5th Cir. 2011) (internal quotation marks

and citation omitted).

2 United States v. Vasquez, 677 F.3d 685, 694 (5th Cir. 2012). Contreras contends that

the government was required to prove that she knew the particular kind and quantity of

contraband involved in her offense. She acknowledges that United States v. Betancourt, 586

F.3d 303, 308–09 (5th Cir. 2009) forecloses this argument.

3 See Vasquez, 677 F.3d at 694–95 (discussing circumstantial evidence necessary to

infer knowledge of the presence of illegal drugs when those drugs are secreted in a hidden

compartment); see also United States v. Resio-Trejo, 45 F.3d 907, 911 (5th Cir. 1995) (same).

2

 Case: 12-40294 Document: 00512214592 Page: 2 Date Filed: 04/19/2013
No. 12-40294

to violate the narcotics laws, (2) the defendant's knowledge of the agreement,

and (3) the defendant's voluntary participation in the conspiracy.’”4

“[A] jury can

convict a defendant of conspiring with persons whose names are unknown”

where, as here, “the indictment charges a conspiracy with unknown persons and

evidence supports their existence and the existence of a conspiracy” with them.5

Following her arrest, Contreras gave a statement indicating that she

obtained the Mustang from a person known to her as Jorge Alvarez, whom she

knew was engaged in illegal activity, including drug trafficking. Contreras

indicated in a statement that she was to be paid $800 for doing as Alvarez

wished, and, as discussed above, the evidence was sufficient to show that

Contreras had knowledge that the vehicle contained contraband. Although she

gave conflicting statements, the jury was free to believe those portions of

Contreras’s statements that established her knowing agreement with Alvarez

to violate the narcotics laws and her voluntary actions in accord with that

agreement.6 Accordingly, sufficient evidence supports her conspiracy conviction.

II.

The district court sentenced Contreras to 235 months of imprisonment,

five years of supervised release, and required her to pay a $200 special

assessment. We review for an abuse of discretion.7

4 United States v. Zamora, 661 F.3d 200, 209 (5th Cir. 2011) (quoting United States v.

Booker, 334 F.3d 406, 409 (5th Cir. 2003) (citation omitted)).

5 United States v. Villasenor, 894 F.2d 1422, 1428 (5th Cir. 1990) (quoting United States

v. Onick, 889 F.2d 1425, 1432 (5th Cir. 1989)) (internal quotation marks omitted).

6 See United States v. Jaramillo, 42 F.3d 920, 923 (5th Cir. 1995) abrogated on other

grounds by United States v. Vargas-Ocampo, 11-41363, 2013 WL 1022854 (5th Cir. Mar. 14,

2013).

7 See Gall v. United States, 552 U.S. 38, 51–52 (2007); United States v.

Delgado-Martinez, 564 F.3d 750, 752–53 (5th Cir. 2009).

3

 Case: 12-40294 Document: 00512214592 Page: 3 Date Filed: 04/19/2013
No. 12-40294

Contreras contends that her sentence is substantively unreasonable. She

argues that the district court gave too much weight to her guideline range, and

she asserts that a lesser sentence would have been sufficient to provide

deterrence and serve as just punishment. Contreras further contends that the

district court’s choice of sentence was influenced by improper factors.

Although certain extraneous facts were discussed at sentencing, there is

no indication in the record that any such matter affected the district court’s

choice of sentence. Contreras has not made a showing sufficient to rebut the

presumption of reasonableness that attaches to her within-guidelines sentence.8

AFFIRMED.

8 See Rita v. United States, 551 U.S. 338, 347–56 (2007); United States v. Cooks, 589

F.3d 173, 186 (5th Cir. 2009).

4

 Case: 12-40294 Document: 00512214592 Page: 4 Date Filed: 04/19/2013