United States v. Guerrero

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this opinion should not be published and is not precedent except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
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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.