United States v. Vinagre-Hernandez

• Decision Date: 07 June 2019
• Docket Number: No. 18-50402,18-50402
• Citation: 925 F.3d 761
• Parties: UNITED STATES of America, Plaintiff - Appellee v. Felipe VINAGRE-HERNANDEZ, Defendant - Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

925 F.3d 761

UNITED STATES of America, Plaintiff - Appellee
v.
Felipe VINAGRE-HERNANDEZ, Defendant - Appellant

No. 18-50402

United States Court of Appeals, Fifth Circuit.

FILED June 7, 2019

Joseph H. Gay, Jr., Assistant U.S. Attorney, Angela Sandoval Raba, Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.

Philip J. Lynch, San Antonio, TX, for Defendant-Appellant.

Before JOLLY, COSTA, and ENGELHARDT, Circuit Judges.

KURT D. ENGELHARDT, Circuit Judge:

Felipe Vinagre-Hernandez appeals his guilty verdict and sentence for aiding and abetting the possession of marijuana in the amount of more than 100 kilograms but less than 1,000 kilograms, with intent to distribute. He challenges the sufficiency of the evidence and the application of the Speedy Trial Act.

I.

A border patrol agent, observing the West Texas desert through an infrared device called a Recon 3, saw six individuals carrying backpacks that appeared to be over half their body size. The agent called for backup and was joined by another agent and his dog. The agents lost sight of the six figures for a time and went to look for them. When the agent and the dog arrived at the area where they had seen the six people, they found tracks, which they followed and came upon the group, who scattered as the agent and the dog approached. One member of the group, Sergio Reynoso-Montes (Reynoso), remained behind and was found with the backpacks, which were filled with bundles of marijuana, later determined to weigh 320.4 pounds (145 kilos). The "backpacks" were actually sugar sacks painted black to camouflage them. Additionally, the agent found small bags filled with personal items and supplies for the trip, known as "tricky bags."

When the group of five (excluding Reynoso) fled, they fanned out and the agents lost sight of them. Over the radio, it was heard that some of the group turned south. Several agents pursued the fleeing group with flashlights. One agent continued to watch through the Recon 3, eventually spotted one person approximately 300 yards from where the marijuana had been found and alerted the other agents. The agent with the dog found the lone person, Felipe Vinagre-Hernandez (Vinagre), who was crouched down and appeared to be trying to hide. He was located about a mile from where the marijuana was found and was not carrying a tricky bag.

Reynoso testified to Vinagre’s involvement with the group of six. Reynoso said that a man named "Xochi" recruited him, bought him "fine line" boots, and brought him and several other men, including Vinagre, to San Antonio al Bravo. He claimed that he and Vinagre were both given bags to carry into the United States, although he also testified that he did not know that they were filled with marijuana. Reynoso testified that everyone was wearing the same type of "fine line" boots that "Xochi" had bought Reynoso. Both Reynoso

925 F.3d 764

and Vinagre were wearing fine line boots when they were arrested, as was a third member of the group who was arrested later. Additionally, the tracks that the agents found indicated that all six of the individuals were wearing the same type of boots.

Vinagre denied being part of or traveling with the group and claimed to have met Reynoso for the first time when they were detained together. He testified that he was traveling with two guides who were supposed to deliver him to Salt Lake City. He had traveled by bus from Mexico City to Ojinaga, where one of the people he was with bought him shoes. He claimed the guides were supposed to return to Mexico and Vinagre’s friend in Salt Lake City was going to send them money. Vinagre also mentioned that his friend was going to send the money to a "coyote." When asked what the coyote’s name was, Vinagre said he only remembered a person named "Xochi."

Felipe Vinagre-Hernandez was arrested on May 11, 2017. He was indicted on June 13, 2017. At that time, he was charged with aiding and abetting the possession of marijuana in the amount of more than 100 kilograms but less than 1,000 kilograms, with intent to distribute. He pleaded not guilty. The jury found him guilty. The district court sentenced him to 60 months’ imprisonment, followed by 5 years of supervised release. He timely appealed on May 10, 2018.

II.

When this court addresses an appeal regarding the sufficiency of the evidence, it is with "substantial deference to the jury verdict." United States v. Delgado , 672 F.3d 320, 330 (5th Cir. 2012) (en banc). All "weight and credibility assessments lie within the exclusive province of the jury." United States v. Barakett , 994 F.2d 1107, 1110 (5th Cir. 1993). The court of appeals "does not re-weigh the evidence or assess the credibility of the witnesses." United States v. Moncada, 70 F. App'x 198, 198 (5th Cir. 2003). Therefore, we consider all "evidence presented and all inferences reasonably drawn therefrom in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Brown , 29 F.3d 953, 958 (5th Cir. 1994).

Possession of marijuana with intent to distribute is established when "(1) the defendant knowingly possessed a controlled substance; (2) the substance was in...