IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 Elfego Boyso-Gutierrez appeals his conviction and sentence for

possession with the intent to distribute more than 500 grams of

methamphetamine. Boyso-Gutierrez argues that the evidence was insufficient

to support his conviction. Specifically, he contends that the Government failed

to establish that the substance tested by forensic chemist Paul Adams was the

same substance found in Boyso-Gutierrez’s bag. Therefore, he contends there

was insufficient evidence to establish that the methamphetamine weighed more

United States Court of Appeals

Fifth Circuit

F I L E D

April 18, 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.

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No. 12-40665

than 500 grams. Boyso-Gutierrez also 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 substance. United States v. Solis, 299 F.3d 420, 446

(5th Cir. 2002). Because the statutory sentencing range was based upon the

amount of drugs, the quantity of drugs was required to be found by the jury

beyond a reasonable doubt. See § 841(b)(1)(A); United States v. Doggett, 230 F.3d

160, 164-65 (5th Cir. 2000).

Because Boyso-Gutierrez did challenge the amount of the drugs when

moving for a directed verdict, we limit review of the issue to the consideration

of whether “the record is devoid of evidence pointing to guilt.” United States v.

Herrera, 313 F.3d 882, 884-85 (5th Cir. 2002) (internal quotation marks and

citation omitted). In determining whether the record is devoid of evidence

pointing to guilt, the evidence is viewed “in the light most favorable to the

[G]overnment, giving the [G]overnment the benefit of all reasonable inferences

and credibility choices.” United States v. Galvan, 949 F.2d 777, 783 (5th Cir.

1991) (internal quotation marks and citation omitted).

The testimony of Agent Osburn shows that the methamphetamine was

sealed and 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 evidence. Therefore, the

jury could reasonably infer from these testimonies that the methamphetamine

tested by Adams was the same methamphetamine seized from Boyso-Gutierrez’s

bag that had been sealed, marked, and delivered to the lab. Adams’s testimony

that the weight of the methamphetamine was 3878 grams establishes that the

drug weighed more than 500 grams. Accordingly, the record 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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No. 12-40665

Because Boyso-Gutierrez challenged the element of knowing possession in

his motion for a directed verdict, he preserved the issue for appellate review;

therefore, this court reviews his challenge to the sufficiency of the evidence de

novo. See United States v. Ollison, 555 F.3d 152, 158 (5th Cir. 2009).

In reviewing the issue, we will uphold the jury’s verdict if a rational trier

of fact could conclude that “the element[] of the offense [was] established beyond

a reasonable doubt, viewing the evidence in the light most favorable to the

verdict and drawing all reasonable inferences from the evidence to support the

verdict.” United States v. Percel, 553 F.3d 903, 910 (5th Cir. 2008) (internal

quotation marks and citation omitted). We do “not weigh evidence or assess the

credibility of witnesses, and the jury is free to choose among reasonable

constructions of the evidence.” United States v. Ramos-Cardenas, 524 F.3d 600,

605 (5th Cir. 2008). The trier of fact is not “required to accept any alternative

explanation.” United States v. Winkler, 639 F.3d 692, 700 (5th Cir. 2011).

Guilty knowledge may be inferred from conflicting stories, obvious

peculiarities indicating hidden compartments, and traveling with a large

quantity of an illicit substance. United States v. Martinez-Mercado, 888 F.2d

1484, 1491 (5th Cir. 1989). This court has also recognized that a reasonable

inference of guilty knowledge can be made when the cargo contains an extremely

valuable amount of contraband. United States v. Ramos-Garcia, 184 F.3d 463,

465-66 (5th Cir. 1999).

Based on the inconsistent and implausible stories from Boyso-Gutierrez

and his witnesses, the amount and value of the methamphetamine, and the

obvious abnormality of the bag, a rational trier of fact could have found beyond

a reasonable doubt that Boyso-Gutierrez knowingly possessed the

methamphetamine. Viewed in 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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