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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-40113

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ESMERALDA GRISELDA DE LOS SANTOS,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:08-CR-917-1

Before GARZA, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:*

Esmeralda Griselda De Los Santos was convicted by a jury of conspiracy

to possess with intent to distribute cocaine and methamphetamine, and

possession with intent to distribute cocaine and methamphetamine; she received

concurrent sentences of 292 months in prison. On appeal, De Los Santos

contends that she was deprived of a fair trial because she was unable to present

a “complete” defense of duress and coercion. She contends that the district court

erred in sustaining the Government’s hearsay objections to her attempts to

United States Court of Appeals

Fifth Circuit

F I L E D

May 26, 2010

Lyle W. Cayce

Clerk

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No. 09-40113

2

testify about the threats made against herself and her family. Because trial

counsel “made no attempt to inform the district court” why the testimony did not

qualify as hearsay, we do not “consider the propriety of the decision to exclude

the evidence at issue.” United States v. Clements, 73 F.3d 1330, 1336 (5th Cir.

1996). Even if De Los’s Santos’s contention that she was denied a fair trial is

construed as an assertion that her substantial rights were affected, she has not

established that the district court abused its discretion in denying De Los Santos

the opportunity to testify about the exact language of the threats. See United

States v. Crawley, 533 F.3d 349, 353 (5th Cir.), cert. denied, 129 S. Ct. 522

(2008); United States v. Nguyen, 504 F.3d 561, 571 (5th Cir. 2007).

De Los Santos also contends that the district court erred in denying her

untimely motion for a continuance. She sought a continuance so that she could

find witnesses to support her coercion defense by testifying about the dangers

of the drug trade in Mexico. Because De Los Santos has not established that the

district court abused its discretion in denying the untimely motion or that she

“suffered serious prejudice,” we will not reverse the district court’s decision.

United States v. Scott, 48 F.3d 1389, 1393 (5th Cir. 1995).

De Los Santos contends that her trial counsel rendered ineffective

assistance by failing to file pretrial motions, by failing to obtain witnesses to

support her coercion defense, and by not arguing that the testimony about the

threats made against De Los Santos and her family did not constitute hearsay.

Because the record does not reveal an “apparent” or “obvious” shortcoming by

trial counsel, we decline to consider De Los Santos’s ineffective assistance claims

on direct appeal. Massaro v. United States, 530 U.S. 500, 508 (2003).

De Los Santos also maintains that the district court erred in imposing a

two-level sentencing enhancement for obstruction of justice, based on the

probation officer’s assertion that she had perjured herself. The district court

considered various statements made by De Los Santos during her trial and

concluded that the statements were false, that they pertained to material

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No. 09-40113

3

matters, and that they were made willfully rather than because of a mistake or

confusion. Because the court’s findings established a factual predicate for

finding perjury, the district court did not clearly err in imposing the

enhancement. See United States v. Creech, 408 F.3d 264, 270-71 (5th Cir. 2005);

United States v. Wild, 92 F.3d 304, 308 (5th Cir. 1996). 

The judgment of the district court is therefore AFFIRMED.

Case: 09-40113 Document: 00511122066 Page: 3 Date Filed: 05/26/2010