United States v. de Morales ( 2021 )

Case: 19-50666 Document: 00515929771 Page: 1 Date Filed: 07/08/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 8, 2021
No. 19-50666 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Manuela Villa de Morales,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:18-CR-755-1
Before Higginbotham, Jones, and Costa, Circuit Judges.
Per Curiam:*
Manuela Villa de Morales was convicted by a jury of aiding and
abetting the importation of at least 100 kilograms but less than 1000
kilograms of marijuana and aiding and abetting the possession with intent to
distribute at least 100 kilograms but less than 1000 kilograms of marijuana.
*
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opinion should not be published and is not precedent except under the limited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.
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No. 19-50666
She was sentenced to concurrent terms of 78 months of imprisonment,
followed by five-year terms of supervised release. She now appeals her
conviction and sentence.
First, Villa de Morales argues that the magistrate judge erred in
denying her Batson v. Kentucky, 476 U.S. 79 (1986), challenge. Batson
established a three-step process for examining an objection challenging the
exclusion of a juror based on race. See United States v. Thompson, 735 F.3d
291, 296 (5th Cir. 2013). First, a defendant must make a prima facie showing
that the prosecutor exercised a peremptory challenge based on race.
Hernandez v. New York, 500 U.S. 352, 358 (1991). Next, “the burden shifts
to the prosecutor to articulate a race-neutral explanation for” the challenged
peremptory strike. Id. at 358-59. “[T]he explanation need not be persuasive,
nor even plausible, but only race-neutral and honest.” United States
v. Williams, 264 F.3d 561, 571 (5th Cir. 2001). Third, “the trial court must
determine whether the defendant has carried his burden of proving
purposeful discrimination.” Hernandez, 500 U.S. at 359. Where, as in this
case, the prosecutor offers explanations for the challenged peremptory
strikes, we need only address the second and third steps of the Batson
analysis. See Williams, 264 F.3d at 571.
Because the Government’s explanations were not based on race, the
Government satisfied its minimal burden at the second step of the Batson
analysis. See id. Villa de Morales asserts that the Government used six of its
seven peremptory strikes against Hispanic prospective jurors, but she fails to
establish a discriminatory motive. See Hernandez, 500 U.S. at 359. The
magistrate judge’s denial of Villa de Morales’s Batson challenge was not clear
error. See Thompson, 735 F.3d at 296.
Next, Villa de Morales asserts that there was insufficient evidence to
support her convictions. Because she failed to renew her motion for a
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judgment of acquittal at the close of all the evidence, Villa de Morales has not
preserved her claim for appeal, and it is reviewed for a “manifest miscarriage
of justice.” United States v. Davis, 690 F.3d 330, 336 (5th Cir. 2012) (internal
quotation marks and citation omitted).
Villa de Morales does not argue that the Government failed to prove
that the substantive drug offenses occurred. Instead, she asserts that “the
evidence was insufficient to show she aided and abetted.” Villa de Morales
maintains that “(1) she never drove the van to be used for transporting drugs,
(2) was not even there when the drug transaction was attempted, (3) the van
was not registered in her name, and (4) all she did was follow her husband to
a store near where the transaction took place.” However, the record is not
devoid of evidence pointing to her guilt, nor is the evidence “so tenuous that
a conviction is shocking.” United States v. Delgado, 672 F.3d 320, 331 (5th
Cir. 2012) (en banc) (internal quotation marks and citation omitted).
Moreover, there was evidence from which the jury could have reasonably
inferred that Villa de Morales aided and abetted the importation and
possession of marijuana. See United States v. Pando Franco, 503 F.3d 389, 394
(5th Cir. 2007).
Finally, Villa de Morales argues that the district court erred in
concluding that she did not qualify for a mitigating role reduction under
U.S.S.G. § 3B1.2. Whether a defendant is a minor or minimal participant
under § 3B1.2 is a factual determination that we review for clear error. United
States v. Castro, 843 F.3d 608, 612 (5th Cir. 2016). To establish entitlement
to a mitigating role reduction, the defendant has the burden of showing
“(1) the culpability of the average participant in the criminal activity; and
(2) that she was substantially less culpable than that participant.” Id. at 613
(footnote omitted).
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Villa de Morales has not satisfied that burden. She has failed to show
the level of culpability of the average participant in the offense or her own
relative level of culpability. See id. She has also failed to demonstrate that
she did so much less than other participants that she was peripheral to the
criminal activity’s advancement. See id. at 613-14. Accordingly, the district
court did not clearly err in denying Villa de Morales a mitigating role
reduction.
The judgment of the district court is AFFIRMED.
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