IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-50687

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

HORACIO SANTAMARIA, JR.,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 4:18-CR-756-1

Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Horacio Santamaria, Jr., was convicted by a jury of aiding and abetting 

the possession with intent to distribute marijuana in violation of 21 U.S.C. 

§ 841(a)(1), (b)(1)(B), and 18 U.S.C. § 2, and he was sentenced within the 

guidelines range to 151 months of imprisonment and five years of supervised 

release. He now appeals his conviction and his sentence, arguing that the 

evidence was insufficient to support his conviction and that his sentence is 

* 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

June 8, 2020

Lyle W. Cayce

Clerk

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procedurally unreasonable because the district court’s drug quantity 

calculation was erroneous and because the application of enhancements under 

U.S.S.G. § 3D1.1 and U.S.S.G. § 2D1.1(b)(16)(B)(i) were not warranted in light 

of the record.

A defendant’s sufficiency-of-the-evidence claim is “reviewed under a 

stricter than usual standard” where, as in this case, the defendant failed to 

renew his motion for judgment of acquittal at the close of all the evidence, 

United States v. Green, 293 F.3d 886, 895 (5th Cir. 2002). Thus, by failing to 

do so, Santamaria has not preserved his claim for appeal, and it is reviewed 

for a “manifest miscarriage of justice.” United States v. Davis, 690 F.3d 330, 

336 (5th Cir. 2012); FED R. CRIM. P. 29.

Santamaria argues that the evidence was insufficient to show that he 

purposefully associated with the transportation of marijuana on January 3, 

2018, and that he sought by his actions for the transportation of marijuana to 

succeed. We disagree. The record is not devoid of evidence pointing to

Santamaria’s guilt, nor is the evidence “so tenuous that a conviction is 

shocking.” United States v. Delgado, 672 F.3d 320, 331 (5th Cir. 2012) (en 

banc) (internal quotation marks and emphasis omitted). Moreover, there was 

evidence, both direct and circumstantial, from which the jury could have 

reasonably inferred that Santamaria aided and abetted in the possession with 

intent to distribute marijuana. Accordingly, his conviction is affirmed.

Because Santamaria has preserved his challenges to the procedural 

reasonableness of his sentence, we review the district court’s interpretation 

and application of the Sentencing Guidelines de novo and its factual findings, 

including the determination of what constitutes relevant conduct, for clear 

error. United States v. Williams, 610 F.3d 271, 292 (5th Cir. 2010). With 

respect to Santamaria’s challenge to the district court’s drug quantity 

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determination, a defendant’s “base offense level can reflect quantities of drugs 

not specified in the count of conviction if they were part of the same course of 

conduct or part of a common scheme or plan as the count of conviction.” United 

States v. Rhine, 583 F.3d 878, 885 (5th Cir. 2009) (internal quotation marks 

and citation omitted). Here, the district court did not clearly err by holding 

Santamaria accountable for 595.2 kilograms of marijuana based on relevant 

conduct, as that determination was plausible in light of the record as a whole. 

See id.; United States v. Cooper, 274 F.3d 230, 238 (5th Cir. 2001). 

Santamaria also argues that the Government failed to prove by a 

preponderance of the evidence that he organized, led, managed, or supervised 

any other participant warranting the section 3B1.1(c) enhancement. Again, 

we find no clear error with the district court’s application of this enhancement. 

Based on the evidence before it, the district court could have plausibly found

that Santamaria was at least a manager or supervisor in the drug trafficking 

scheme. In reaching this conclusion, we give deference to the district court’s 

credibility determinations, including credibility determinations concerning 

statements contained in the PSR, see United States v. Perez, 217 F.3d 323, 331-

32 (5th Cir. 2000), and recognize that where there is more than one permissible 

view of the evidence supporting a sentencing enhancement, the district court’s 

decision to rely on one view over others does not constitute clear error, see 

United States v. Gillyard, 261 F.3d 506, 509 (5th Cir. 2001).

Finally, Santamaria argues that the enhancement under section 

2D1.1(b)(16)(B)(i) was not warranted because there was no evidence showing 

that he involved his minor child in the transportation of marijuana. That 

Guideline provides for a two-level enhancement if the defendant received an 

adjustment under section 3B1.1 and “knowing that an individual was (i) less 

than 18 years of age . . . distributed a controlled substance to that individual 

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or involved that individual in the offense.” § 2D1.1(b)(16)(B)(i). We find no 

error with the district court’s application of that provision in this case. See 

United States v. Benitez, 809 F.3d 243, 249 (5th Cir. 2015).

Accordingly, the judgment of the district court is AFFIRMED.

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