United States Court of Appeals

for the Fifth Circuit

No. 21-40873

Summary Calendar

United States of America, 

Plaintiff—Appellee,

versus

Michael Dashun Howard, 

Defendant—Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:20-CR-1420-1

Before Jones, Haynes, and Oldham, Circuit Judges.

Per Curiam:*

Michael Dashun Howard was convicted by a jury of transporting an 

illegal alien within the United States by means of a motor vehicle, in violation 

of 8 U.S.C. § 1324(a)(1)(A)(ii), (a)(1)(A)(v)(II), and (a)(1)(B)(ii). The 

district court sentenced Howard to 33 months of imprisonment. On appeal, 

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

August 25, 2022

Lyle W. Cayce

Clerk

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Howard raises two challenges: (1) He contends that the jury’s verdict should 

be overturned because the evidence was sufficient to establish that he was 

acting under duress. And (2) Howard challenges his sentence enhancement 

under U.S.S.G. § 2L1.1(b)(5)(C), arguing that the evidence did not establish 

his possession of a firearm during the offense.

First, Howard concedes that although he moved for a directed verdict 

at the close of the Government’s case, he did not renew his motion after 

closing his defense or after the Government concluded its rebuttal. So our 

review of his sufficiency-of-the-evidence challenge is for plain error. See 

United States v. Cabello, 33 F.4th 281, 285 (5th Cir. 2022). “Preserved 

challenges to the sufficiency of the evidence get de novo review, with a heavy 

thumb on the scale in favor of the verdict.” Id. at 288 (emphasis omitted); see 

also United States v. Davis, 690 F.3d 330, 336 (5th Cir. 2012) (“‘We review 

properly preserved claims that a defendant was convicted on insufficient 

evidence with substantial deference to the jury verdict, asking only whether 

a rational jury could have found each essential element of the offense beyond 

a reasonable doubt.’” (quoting United States v. Delgado, 672 F.3d 320, 330 

(5th Cir.2012) (en banc))). But where, as here, the defendant does not 

“properly preserve his sufficiency challenge at trial, that rule combines with 

plain-error review to produce a super-deferential result.” Cabello, 33 F.4th at 

288 (citation omitted). Howard thus must show that “the record is devoid of 

evidence pointing to guilt or that the evidence is so tenuous that a conviction 

is shocking.” Id. (quotation omitted).

Moreover, where an affirmative defense is at issue, the burden of 

proof on that defense determines our standard of review. United States v. 

Barton, 992 F.2d 66, 68–69 (5th Cir. 1993). For duress, we may “reject the 

jury verdict” on duress grounds “only if no reasonable trier of fact could have 

failed to find” that duress was established by a preponderance of the 

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evidence. Id. at 68; see also Dixon v. United States, 548 U.S. 1, 17 (2006) 

(clarifying preponderance-of-the-evidence standard for duress defense).

Howard cannot overcome the super-deferential standard of review. 

Howard’s evidence of duress consisted chiefly of his own trial testimony, 

during which he alleged that he had been attacked, injured, and forced at 

gunpoint to transport illegal aliens in his tractor trailer. But a defendant’s 

testimony generally cannot by itself overcome the plain-error standard for an 

affirmative defense like duress because “absent unusual circumstances, the 

jury is almost always entitled to disbelieve that testimony.” United States v. 

Mora, 994 F.2d 1129, 1137 (5th Cir. 1993) (entrapment defense). The jury was

therefore “entitled to disbelieve” that testimony. Id. This is all the more true 

because in a number of instances, Howard’s testimony was directly 

contradicted by the Government’s witnesses. As the question of the 

credibility of the witnesses was for the jury to decide, United States v. Garcia, 

567 F.3d 721, 731 (5th Cir. 2009), the jury was entitled to find that the 

Government’s witnesses were credible and that Howard was not. Howard’s 

challenge thus fails. 

Second, Howard preserved his sentencing-enhancement challenge, so 

we review the district court’s interpretation of the Sentencing Guidelines de 

novo and its underlying factual findings for clear error. See United States v. 

Peterson, 977 F.3d 381, 392 (5th Cir. 2020). In determining whether an 

enhancement applies, the district court may draw reasonable inferences from 

the facts, and these inferences are fact findings reviewed for clear error. 

United States v. Coleman, 609 F.3d 699, 708 (5th Cir. 2010). “A factual 

finding is not clearly erroneous if it is plausible in light of the record as a 

whole.” Id. (internal quotation marks omitted). This is “particularly true” 

where a sentencing court’s imposition of an enhancement is based “upon an 

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evaluation of a witness’ credibility.” United States v. Powers, 168 F.3d 741, 

753 (5th Cir. 1999).

Section 2L1.1 of the Guidelines provides for an enhancement to the 

offense level in an alien transporting case “[i]f a dangerous weapon 

(including a firearm) was possessed.” U.S.S.G. § 2L1.1(b)(5)(C). During the 

trial, one of the agents testified that the firearm was found “in a plastic bin 

that was directly behind the driver’s seat.” And the agent testified that the 

bin containing the firearm also had food and snacks, that it is typical for 

truckers to travel with such food and snacks, and that the firearm looked like 

it had been deliberately placed in the bin, not just thrown in the box. 

Therefore, the district court’s finding that Howard possessed the firearm in 

connection with his alien transporting offense is plausible “in light of the 

record as a whole” and not clear error. Coleman, 609 F.3d at 708.

The district court’s judgment is AFFIRMED.

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