IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-50849

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOSE ALFREDO PORRAS,

Defendant-Appellant

Cons. w/No. 10-50853

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOSE ALFREDO PORRAS-MUNIZ, also known as Jose Alfredo Porras,

Defendant-Appellant

Appeals from the United States District Court

for the Western District of Texas

USDC No. 4:09-CR-339-01

Before BENAVIDES, STEWART and CLEMENT, Circuit Judges.

United States Court of Appeals

Fifth Circuit

F I L E D

August 24, 2011

Lyle W. Cayce

Clerk
No. 10-50849

c/w No. 10-50853

* 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.

2

PER CURIAM:*

Jose Alfredo Porras appeals his jury-trial conviction, and subsequent

sentence, for two counts of possession with intent to distribute marijuana, in

violation of 21 U.S.C. § 841(a)(1), (b)(1)(A), (b)(1)(D), and two counts of aiding

and abetting, in violation of 18 U.S.C. § 2, in two separate cases, which were

consolidated for trial. He was sentenced to concurrent sentences of 60 months

of imprisonment on one count and 235 months of imprisonment on the other

count. 

Porras contends that (1) the Government failed to produce sufficient

evidence in support of his convictions for possession with intent to distribute

marijuana; (2) the district court erred in calculating the amount of marijuana

involved; (3) the district court erred in applying an obstruction-of-justice

enhancement; (4)the district court erred in applying a leadership enhancement;

(5) his sentence was greater than necessary to achieve the goals of the

sentencing factors; and (6) his sentence was disproportionately greater than his

codefendants.

The standard of review for a sufficiency claim is “whether any reasonable

trier of fact could have found that the evidence established the appellant’s guilt

beyond a reasonable doubt.” United States v. Jaramillo, 42 F.3d 920, 922-23

(5th Cir. 1995) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). To prove

possession of a controlled substance with intent to distribute, the Government

must establish (1) knowledge, (2) possession, and (3) intent to distribute the

controlled substance. United States v. Solis, 299 F.3d 420, 446 (5th Cir. 2002).
No. 10-50849

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The evidence at trial showed that Porras recruited and paid his girlfriend

to smuggle marijuana into the United States from Mexico. Porras also drove a

codefendant to Ojinaga, Mexico, so that he could transport marijuana loads into

the United States, including a 3,000-pound marijuana load that resulted in the

codefendant’s arrest. Porras provided the codefendant with a cell phone and

acted as his scout while he was transporting loads, alerting him to the presence

of law enforcement. Accordingly, the evidence was sufficient for the jury to find

every element of the offenses beyond a reasonable doubt. See Jaramillo, 42 F.3d

at 922-23. Porras’s assertion that the witnesses against him were not credible

is without merit because this court will not second guess a jury or substitute its

own views on the credibility of the witnesses for those held by the jury. See

United States v. Guidry, 406 F.3d 314, 318 (5th Cir. 2005). 

Porras next complains that the district court erred in determining that he

was responsible for 5,721.6 kilograms of marijuana. We review the district

court’s interpretation and application of the Guidelines de novo and its factual

findings for clear error. United States v. Gonzalez, 445 F.3d 815, 817 (5th Cir.

2006). The district court did not clearly err in this regard. 

The presentence report(PSR) provided thatthe total amount of marijuana

consisted of 34.9 kilograms that were seized from Porras’s girlfriend on the day

of her arrest and an additional 34.9 kilograms from an earlier load; the amount

of the earlier load was estimated based on the fact that she used the same

vehicle, and was to be paid the same amount, for both loads. The total amount

of marijuana also consisted of 1,412.95 kilograms that were seized from the

codefendant on the day of his arrest and an additional three loads, each

weighing 1,412.95 kilograms, which was estimated based on the fact that he

stated that each of his three prior loads were larger than the load that was

seized. Porras did not present any evidence refuting these findings. See

generally United States v. Ollison, 555 F.3d 152, 164 (5th Cir. 2009) (noting that
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the PSR bears sufficient indicia of reliability for the district court to rely upon

at sentencing; defendant has the burden of showing that the PSR is inaccurate).

Thus, the district court did not clearly err in holding Porras responsible for his

relevant conduct with respect to the transportation of the prior loads, see United

States v. Moore, 927 F.2d 825, 827-28 (5th Cir. 1991) (holding that evidence

supporting that defendant was engaged in continuing enterprise involving the

same type of drug supported counting as relevant conduct the drugs involved in

earlier incidents), or in determining the total amount of marijuana for

sentencing purposes. 

Porras’s next argument, that the court clearly erred in applying an

enhancement for obstruction of justice, pursuant to U.S.S.G. § 3C1.1, fails. The

district court determined that Porras suborned his brother’s false testimony that

their uncle lived in the area in which Porras was arrested and that the

testimony was material because itjustified Porras’s presence in an area that was

frequently used by drug-traffickers and their scouts. The court did not clearly

err in this regard, see United States v. Dunnigan, 507 U.S. 87, 94 (1993); see also

18 U.S.C. § 1622, and the district court’s factual findings were sufficient to

encompass the elements of subornation of perjury. See Dunnigan, 507 U.S. at

95.

The district court likewise did not clearly err in applying a leadership

enhancement pursuant to U.S.S.G. § 3B1.1(c). Porras recruited his girlfriend to

smuggle marijuana and another codefendant to assist in the smuggling

operation, and Porras paid her after she successfully transported a load.

Additionally, Porras provided one codefendant’s transportation to Ojinaga,

provided him with a cell phone, and “took care of [him] on the road” during all

drug runs. This evidence supports the district court’s finding that Porras acted

as a leader or organizer. See United States v. Villanueva, 408 F.3d 193, 204 (5th
No. 10-50849

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5

Cir. 2005) (affirming leadership enhancement because, inter alia, defendant

recruited and hired a driver to smuggle aliens). 

Porras next complains that several factors, including his lack of criminal

history, his military service, his post-traumatic stress disorder, his close familial

ties, his history of alcohol and drug abuse, and his stable work history,

supported a lesser sentence. This argument is without merit because he has not

overcome the presumption that his within-guidelines sentence is reasonable. See

United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008). 

Finally,Porras’s argumentthat his sentence was greatly disproportionate

to his codefendants’ sentences is unavailing. His codefendants pleaded guilty

and cooperated with law enforcement; Porras thus cannot show a sentencing

disparity among similarly-situated codefendants. See United States v. Candia,

454 F.3d 468, 476 (5th Cir. 2006). 

AFFIRMED.