### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-40294 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff - Appellee

v. MARIA ABIGAIL CONTRERAS, Defendant - Appellant

A ppeal 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 M aria Abigail C o n t r e r a s for possessing with intent to distribute more than 500 g rams of m ethamphetamine a nd conspiring to do the

same. S h e c o ntends that insufficient evidence supports those convictions and argues that her sentence was substantively unreasonable. We disagree.

I. U n i t e d S t a te s C o u r t o f A p p e al s F i f t h C i rc u i t 

### F I L E D April 19, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-40294 Document: 00512214592 Page: 1 Date Filed: 04/19/2013No. 12-40294

“A ch a l l e nge to t he sufficiency of the evidence t hat is procedurally preserved, as th[ese] challenge[s] w[ere], is reviewed de novo .” 1

A. “The offense of p ossession with the i ntent to distribute requires proof of (1) possession, ( 2) knowledge, and (3) intent to distri b u t e.” 2 The t rial evidence showed that C o n t r e r a s , who did not know how to drive, persuaded an acquainta n ce to c ross a black Ford Mustang i nto the U nited States. S he then recruited the acquaintance’s husband to drive t h e v e h icle to Houston and rebuffed his offer t o use his pickup truck for t h e journey. When contraband was discovered at a checkpoint, C ontreras gave inconsistent s t a t ements about the events that led to her p r e s e n c e in a vehicle l oaded with approximately 4,716 kilograms of methamphetamine—a quantity worth at least $350,000. A witness also testified t hat Contreras asked wh e t h e r t h e re would be dogs at the checkpoint, suggesting a concern that drugs m ight be found in the vehicle. With respect to the possession with intent to distribute conviction, t h i s i s evidence enough. 3

B. To establis h t h a t a defendant was a member of a d rug conspiracy, the government must demonstrate “‘(1) an agreement between two o r more persons

1 U ni ted Sta t es v . M

cEl w ee , 646 F. 3d 328, 340 ( 5th Cir. 2011) ( internal quotation m ark s and citation om itted )

.

2 U ni ted Sta tes v . V

a squez , 677 F. 3d 685, 694 ( 5th Cir. 2012)

. Contreras contend s that the governm ent was req u i r e d to p rove that s he k new the particular k ind and quantity of contraband involved in her of f ens e. She ack now led ges that U ni ted Sta tes v . B eta ncourt , 586 F. 3d 303, 308–09 ( 5th Cir. 2009) f oreclos es this argum ent.

3 See V asquez , 677 F. 3d at 694–95 ( d is cus s ing circum s tantial evid ence neces s a r y to inf er k now led ge of the p r e s e n c e of illegal d rugs w hen thos e drugs are secreted in a hid d en com p artm ent) ; see a l so U ni ted Sta tes v . Resi o- Trejo , 45 F. 3d 907, 911 ( 5th Cir. 1995) ( s am e)

.

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

to violate t he narcotics l aws, (2) the defendant's knowledge of the a greement, and (3) the defendant's voluntary participation in the conspiracy.’” 4 “ [ A] jury can convict a d efendant of conspiring with persons whose name s a re unknown” where, as here, “the indictment charges a conspiracy with unknown persons and evidence supports their e xistence and the existence of a conspiracy” with them. 5 Following her arrest , C o n t reras 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, in c l u ding drug trafficking. Contreras indicated in a statement that she was to be p a i d $ 8 0 0 for doing as Alvarez wished, and, as discussed above, the e vidence w as suffi c i e n t to show that Contreras had knowledge that the vehicle contained contraband. A lthough she gave conflicting statements, the jury was free to believe those p o r t i o n s of Contr e r a s’s s tatements t hat established her knowing agreement with Alvarez to violate the narcotics laws and her voluntary actions in accord with that agreement. 6 Accordingly, s uffi c ient evidence supports her conspiracy conviction.

II. The district court s entenced Contr e r a s t o 235 months o f imprisonment, five years of supervised release, an d r equired her to pay a $200 special assessment. We review for an abuse of discretion. 7

4 U ni ted Sta tes v . Z

a mora , 661 F. 3d 200, 209 ( 5th Cir. 2011) ( quoting Uni ted Sta tes v . Booker , 334 F. 3d 406, 409 ( 5th Cir. 2003) ( citation om itted ))

.

5 U ni ted Sta t es v . V

i l l a senor , 894 F. 2d 1422, 1428 ( 5th Cir. 1990) ( quoting U ni ted Sta tes v . O ni ck , 889 F. 2d 1425, 1432 ( 5th Cir. 1989) ) ( internal quotation m ark s om itted )

.

6 See U ni t ed Sta tes v. Ja ra m i l l o , 4 2 F

. 3 d 920, 923 ( 5th C ir. 1995) a broga ted on other grounds by U

ni t ed S ta tes v . V

a rga s- O ca m

p o , 11- 41363, 2013 WL 1022854 (5th Cir. M ar. 14, 2013)

.
7 See G a l l v . Uni t ed S ta tes , 552 U

. S. 38, 51–52 ( 2007) ; U ni ted S ta tes v . D el ga do- Ma rti nez , 564 F. 3d 750, 752–53 ( 5th Cir. 2009)

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Contreras contends that her sentence is substantively unreasonable. She argues that the district court gave too much weight to her g uideline range, and she asserts that a lesser sentence w o u l d have been sufficient to provide deterrence a nd 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 r ecord that any s uch matter affected t h e district court’s choice o f sentence. Contreras has not made a showi n g s u f f i c i e nt t o rebut the presumption o f reasonableness that a ttaches to her within-guidelines sentence. 8 AFFIRMED.

8 See Ri ta v . U

ni ted Sta tes , 551 U

. S. 338, 347–56 ( 2007) ; U ni ted Sta tes v . Cooks , 589 F. 3d 173, 186 (5th Cir. 2009)

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