United States v. Alexis Aguilar-Alonzo

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 18-50627

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

ALEXIS AGUILAR-ALONZO,

Defendant – Appellant.

Appeal from the United States District Court
for the Western District of Texas

Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM:
The court having been polled at the request of one of the members of the
court and a majority of the judges who are in regular active service and not
disqualified not having voted in favor (FED. R. APP. P. 35 and 5TH CIR. R. 35),
rehearing en banc is DENIED.
In the poll, 4 judges voted in favor of rehearing en banc, and 12 voted
against. Judges Jones, Smith, Ho, and Oldham voted in favor. Chief Judge
Owen and Judges Stewart, Dennis, Elrod, Southwick, Haynes, Graves,
Higginson, Costa, Willett, Duncan, and Engelhardt voted against.

United States Court of Appeals
Fifth Circuit
FILED
February 11, 2020

Lyle W. Cayce
Clerk

No. 18-50627
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ENTERED FOR THE COURT:

/s/ Jennifer Walker Elrod
_____________________________
Jennifer Walker Elrod
United States Circuit Judge

No. 18-50627
3
JERRY E. SMITH, Circuit Judge, dissenting from the denial of rehearing
en banc:
The well-intentioned judges in the majority badly misapply the standard
of review. The result is a remand that should be an affirmance. The Depart-
ment of Justice, with plenty of opportunity to object, did not. And most regret-
tably, only one-quarter of the active judges find this matter enbancworthy.
I respectfully dissent.
For reasons that are legitimate, it is much more difficult to engage the
en banc court where the losing party does not seek rehearing. That takes some
wind out of the sails of the judges who question the result; even judges who
spot significant error in the panel’s reasoning or result are less likely to take it
on themselves to rescue the case where the aggrieved party makes no effort.
And those judges must exercise commendable care to make sure they’re not
viewed as advocates for one side or the other.
In this case, judges should favor en banc submission as advocates not for
an enhanced sentence but for the rule of law—for proper application of the
standard of review and consistency in that application. Although this stubborn
majority, in its second, substitute opinion, finally admits to the correct stan-
dard of review, it pulverizes that standard by substituting its own de novo
review of the facts for the finding of the district court.
Even a de novo review should result in affirmance. The question is
whether Aguilar-Alonzo explicitly told his young girlfriend that if she really
loved him, she should help transport the contraband; or, similarly, that if she
did not, he would break up with her. Although there’s no direct evidence that
he said something like that, there’s also no direct evidence that he did not.
With that in mind, the majority declines to consider any circumstantial
evidence. If it had done so, the result would be obvious: There is no

No. 18-50627
4
circumstantial evidence that even remotely suggests that Aguilar-Alonzo did
not use friendship or affection to obtain his girlfriend’s help. On the other
hand, there is much circumstantial evidence from which the district judge
easily decided that the defendant did so: (1) They were in a year-long romantic
relationship; (2) she was pregnant by him; (3) he lived in a trailer right behind
the house where she and her parents resided; (4) she was nineteen years old;
and (5) she told the probation officer that she’d “agreed to [the defendant’s]
request [to help with the crime] out of fear he would break up with her.”
In light of this evidence, the majority is wrong to pretend that there’s
not, in the majority’s words, “some evidence” that Aguilar-Alonzo said or did
enough to warrant the enhancement. The majority never even uses the word
“circumstantial” or explains how, in light of that evidence, Judge Counts’s
finding is not “plausible,” which is customarily defined as “permissible,” “con-
ceivably true,” “possibly correct,” or “reasonable.”
This court routinely uses circumstantial, or indirect, evidence where dir-
ect evidence is wanting. Recent examples abound. Take United States v.
Drake, No. 19-50277, 2020 U.S. App. LEXIS 459 (5th Cir. Jan. 20, 2020) (per
curiam) (unpublished). It is, conveniently, a sentencing guideline enhance-
ment case. The panel upheld the enhancement “based on [the district judge’s]
finding that the firearms were found in close proximity to drugs and drug para-
phernalia.” Id. at *1. The defendant urged that the distance was 70 feet and
therefore not in close proximity. The unanimous panel noted that the district
court “did not discuss the distance between the drug paraphernalia and black-
tar heroin, though defense counsel had just argued that the distance was too
great . . . .” Id. at *5. Despite the government’s failure to present proof to
counter the 70-foot claim, the panel credited the judge’s finding: “We conclude
the district court implicitly inferred from these facts that Drake’s firearms

No. 18-50627
5
were in close proximity . . . . The . . . finding was plausible and therefore not
clearly erroneous.” Id.
This is the way it should work: There was (as the Aguilar-Alonzo
majority would put it) “no evidence” of close proximity; as the Drake panel
explained, the district judge made no finding as to the distance. But he used
all the circumstantial evidence to discard the defendant’s 70-foot theory, and
the panel gave due deference to that decision as “plausible.”
The author of the Aguilar-Alonzo opinion was on a recent panel that
employed similar reasoning in a civil case, Jones v. Portfolio Recovery Associ-
ates, L.L.C., No. 18-50703, 2019 U.S. App. LEXIS 36943 (5th Cir. Dec. 12, 2019)
(per curiam) (unpublished). An element of the cause of action was that the
debt was a consumer debt. The district judge granted judgment as a matter of
law “because [the plaintiff] did not offer any evidence regarding [the bank
account in question].” Id. at *6. The panel reversed, agreeing with the plaintiff
“that the jury could reasonably infer that the [debt] at issue was the QVC credit
card, which was used exclusively for personal purchases, and, therefore, a con-
sumer debt.” Id. at *7. As the panel explained, “a[n] inference is permissible
as long as it is reasonable in light of the evidence presented.” Id. at *10. “From
[the circumstantial] evidence, a reasonable jury could infer that, if the Comen-
ity debt was associated with a distinct merchant, the Synchrony Bank debt
likely was as well.” Id. at *11. The absence of the “necessary” direct evidence
“is not enough to overturn the jury’s verdict. We permit—in fact implore—
juries to process contradictory information and make inferences to reach a
verdict . . . . It was not the clearest path to victory for Jones, but it was a
reasonable path, which is all we require.” Id.
1

1
Take a plain, generic hypothetical that examines how judges and juries find raw
historical facts. Assume a trial in which the question is whether the traffic light was red

No. 18-50627
6
If, on the other hand, the panel in Jones had employed the same reason-
ing that the majority used in Aguilar-Alonzo, it would have said that Jones was
a “no evidence” case because there was no direct evidence that the debt was a
consumer debt. The reasoning of the two panels is irreconcilable.
So what is the hapless district judge or Fifth Circuit panel supposed to
do in light of the published opinion in Aguilar-Alonzo? The panel majority has
turned the standard of review upside down. By declining to explain what
makes Judge Counts’s decision neither “permissible,” “conceivably true,” nor
“possibly correct,” the majority tosses circumstantial evidence to the wind and
imposes an unrealistic burden on the proponent of a sentencing enhancement.
In any given case, it becomes a toss of the coin whether this court will affirm
or reverse based on the whim of a randomly-assigned panel majority.
The vote of the active judges not to re-examine this untenable result is
disappointing, though understandable for the reasons I have explained.
I respectfully dissent from the denial of rehearing en banc.

when the tort defendant drove through the intersection. Suppose that a bystander testified
that a car in the next lane stopped at the same light but the defendant didn’t. Assume further
that there was no testimony whether the light was red or green, just the uncontested evidence
that the other car stopped. The panel majority in Aguilar-Alonzo would say that there’s “no
evidence” that the light was red and that any contrary finding is not “plausible” or “con-
ceivably true.” Sure, it’s possible that the other car stalled or was avoiding a squirrel, or its
driver was texting. But is it “implausible” that the other car stopped because the light was
red, even in the absence of direct testimony?
In its merits brief, the government helpfully applied this reasoning to the facts in
Aguilar-Alonzo: “Just as seeding one flinch circumstantially evidences an assailant’s raised
fist, [Aguilar-Alonzo’s girlfriend’s] expression of concern about the relationship circumstan-
tially pointed to [Aguilar-Alonzo’s] use of her affection to involve her in his crime.” We use
trial judges and juries to decide such facts, not circuit judges to overturn them.