United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 20, 2004
Charles R. Fulbruge III
Clerk
No. 03-41662
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AGUSTIN GUERRERO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:03-CR-50-3
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Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Agustin Guerrero (Guerrero) appeals his convictions for one
count of conspiracy to possess with intent to distribute less
than 50 grams of methamphetamine and marijuana; one count of
possession with intent to distribute less than 50 grams of
methamphetamine; and one count of possession with intent to
distribute marijuana. Guerrero contends that there is
insufficient evidence to sustain his convictions. Specifically,
he argues that his conspiracy conviction must be reversed because
*
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this opinion should not be published and is not precedent except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.
No. 03-41662
-2-
he was convicted on the testimony of an unreliable federal
inmate. He also contends that his two possession convictions
must be reversed because the Government failed to present any
evidence showing that he constructively possessed either of the
alleged controlled substances.
Guerrero did not move for a judgment of acquittal in the
trial court. Accordingly, his “challenge to evidence sufficiency
is reviewed only for a manifest miscarriage of justice -- the
record must be devoid of evidence of guilt or the evidence must
be so tenuous that conviction is shocking.” United States v.
Avants, 367 F.3d 433, 449 (5th Cir. 2004).
To the extent that Guerrero challenges sufficiency by
attacking the Government’s witnesses’ credibility, his argument
is without merit. See United States v. Polk, 56 F.3d 613, 620
(5th Cir. 1995). Considering all of the evidence presented at
trial, the record was not devoid of evidence to prove that
Guerrero conspired with Ronnie Robinson, Henry Lloyd Gates, and
Sondra Lowe to possess with intent to distribute less than 50
grams of methamphetamine and marijuana. Additionally, the record
was not devoid of evidence to sustain Guerrero’s convictions for
possession with intent to distribute methamphetamine and
marijuana. “A defendant, who participates in a conspiracy, may
be deemed guilty of a substantive count, such as possession,
committed by a co-conspirator in furtherance of the conspiracy.”
See Pinkerton v. United States, 328 U.S. 640, 645 (1946).
No. 03-41662
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However, proof of the conspiracy alone will not sustain the
possession charge unless the jury was given a Pinkerton
instruction. See United States v. Basey, 816 F.2d 980, 998 (5th
Cir. 1987). The district court gave a Pinkerton instruction.
There was evidence presented that Henry Lloyd Gates, a co-
conspirator, possessed, in furtherance of the conspiracy,
methamphetamine and marijuana. In light of the Pinkerton
instruction and in light of the sufficient evidence on the
conspiracy count, the evidence is sufficient on the substantive
counts. Accordingly, Guerrero’s convictions are AFFIRMED.