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

No. 12-40665 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. FIDEL ELFEGO BOYSO-GUTIERREZ, Defendant-Appellant

Appeals from the United States District Court for the Southern District of Texas USDC No. 2:10-CR-1066-1

Before REAVLEY, JOLLY and DAVIS, Circuit Judges. PER CURIAM: * Fidel E lfego Boyso-Gutierrez appea l s h i s c o nviction and sentence for possession with t h e i n tent to distribute more than 5 00 grams of methamphetamine. Boyso-Gutierrez argues that the evidence was insufficient to support his conviction. Specifically, h e contends that the Government failed to establish that the s ubstance tested by forensic chemist P aul Adams was the

same s ubstance found in Boyso-Gutierrez’s bag. Therefo r e , h e contends there

was insufficient evidence to establish that the methamphetamine weighed more U n i t e d S t a te s C o u rt 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 18, 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: 12-40665 Document: 00512212652 Page: 1 Date Filed: 04/18/2013No. 12-40665

than 500 grams. B o y s o - G u t i e rrez a lso argues that the Government failed to establish that he knowingly possessed the methamphetamine. To prove possession with intent to distribute drugs, the Government must prove beyond a reasonable doubt: (1) knowledge, (2) possession, and (3) intent to distribute the controlled s ubstance. United S tates v. Solis , 299 F.3d 420, 446 (5th Cir. 2002). Because the s t a t u t o ry sentencing range was based upon the

a m ount of drugs, the quantity of drugs w as required to be found by the ju r y beyond a reasonable doubt. See § 841(b)(1)(A); United States v. Doggett , 230 F.3d 160, 164-65 (5th Cir. 2000). B e c a u s e Boyso-Gutierrez did c hallenge the a mount of the drugs when moving for a directed verdict, we limit review of the issue t o t h e consideration of whether “the record is devoid of e vidence pointing to guilt.” United S tates v. Herrera , 313 F.3d 882, 884-85 (5th Cir

. 2 0 02) (internal quotation marks and citation omitted). In determining whether the record i s devoid of evidence pointing to guilt, the evi d e nce is viewed “in the l i ght most favorable to the [G]overnment, giving the [G]overnment the b enefit o f a ll reasonable inferences

a n d credibility choices.” United States v. Galvan , 949 F.2d 777, 7 83 (5th Ci r . 1991) (internal quotation marks and citation omitted). The testimony of Agent Osburn shows that th e m e t h a mphetamine was sealed a nd tagged. Agent Abbott testified that the methamphetamine was sent to the lab. Adams testified that, at the lab, he verified the seal was intact and that the paperwork matched prior to the analysis of the e vidence. Therefore, the jury could reasonably infer from these testimonies that the methamphetamine t e s t e d b y Ad a m s w as the s ame methamphetamine seized from Boyso-Gutierr e z ’ s bag that had been sealed, marked, a nd delivered t o the lab. Adams’s t estimony that the weight of the m e thamphetamine was 3878 grams e stablishes that the drug weighed more than 500 grams. Accordingly, t h e r e c o r d is not devoid of evidence that the methamphetamine seized weighed more than 500 grams. See Herrera , 313 F.3d at 884-85.
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Because Boyso-Gutierrez c h allenged the element o f k nowing possession in his motion f

o r a directed verdict, he preserved the issue f or appellate review; therefore, this court reviews his challenge to the sufficiency of the evidence d e
novo. See United States v. Ollison , 555 F.3d 152, 158 (5th Cir. 2009). In reviewing the issue, we w ill uphold the jury’s verdict i f a rational trier of fact could c onclude that “the element[] of the offense [was] established beyond

a r e asonable doubt, viewing the e vidence in th e light most favorable to t h e verdict and drawing all reasonable i nferences from the evidence to support the verdict.” U

n ited S tates v . P

e r cel , 553 F .3d 9 03, 910 (5th Cir. 2008) (internal quotation marks and citation omitted). W e do “not w eigh evidence or assess the credibility of witnesses, and the jury is free to c hoose among reasonable constructions of the evidence.” United States v. Ramos-Cardenas , 5 24 F.3d 600, 605 (5th Cir. 2008). The trier of fact i s n o t “required to accept any alternative explanat i o n . ” U

n ited States v. Winkler , 639 F.3d 692, 700 ( 5th Cir. 2011). Guilty knowledge may be inferred from conflicting stories, obvious peculiarities indicating hidden compart m e n t s , and traveling with a large quantity of an illicit s ubstance. United S tates v. M a r tinez-Mercado , 888 F.2d 1484, 1491 (5th C ir. 1989). This court has also recognized that a rea s onable inference of guilty knowledge can be made when the cargo contains an extremely valuable amount of contraband. United States v. Ramos-Garcia , 1 84 F .3d 463, 465-66 (5th Cir. 1999). Based on the inconsistent and implausible stories from B o yso-Gutierrez and his witnesses, the a mount and value of the methamphetamine, and the obvious abnormality of the bag, a rational trier of fact could have found beyond

a reasonable doubt t hat B oyso-Gutierrez knowingly possessed the methamphetamine. Viewed i n the light most favorable to the Government, the evidence supports a finding of guilt. See Percel , 553 F.3d at 910. Accordingly, the judgment of the district court is AFFIRMED.

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