United States v. Geovani Hernandez ( 2020 )

Case: 19-40655 Document: 00515596088 Page: 1 Date Filed: 10/09/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 9, 2020
No. 19-40655 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Geovani Hernandez,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:17-CR-1352-1
Before Davis, Stewart, and Dennis, Circuit Judges.
Per Curiam:*
Geovani Hernandez was convicted by a jury of two counts of
attempting to aid or abet the possession with intent to distribute cocaine. He
was sentenced to concurrent terms of 240 months of imprisonment and five
years of supervised release.
*
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opinion should not be published and is not precedent except under the limited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.
Case: 19-40655 Document: 00515596088 Page: 2 Date Filed: 10/09/2020
No. 19-40655
First, Hernandez argues that the evidence is insufficient to support
the jury’s verdict that he was guilty of attempting to aid or abet possession
with intent to distribute a controlled substance. He asserts that the evidence
does not show that he had actual or constructive possession of controlled
substances.
Because Hernandez did not preserve this issue by renewing his motion
for a judgment of acquittal at the close of the evidence, we review his
sufficiency-of-the-evidence claim for plain error. See United States v.
Campbell, 775 F.3d 664, 668 (5th Cir. 2014). We will reverse only if there is
a manifest miscarriage of justice. United States v. Delgado, 672 F.3d 320, 331
(5th Cir. 2012) (en banc). An unpreserved insufficiency claim must be
rejected “unless the record is devoid of evidence pointing to guilt or if the
evidence is so tenuous that a conviction is shocking.” Id. at 330-31 (internal
quotation marks and citation omitted).
A conviction for possession with the intent to distribute a controlled
substance requires “1) knowledge, 2) possession, and 3) intent to distribute
the controlled substances.” United States v. Solis, 299 F.3d 420, 446 (5th Cir.
2002) (internal quotation marks and citation omitted). “To establish aiding
and abetting under 18 U.S.C. § 2, the government must show that the
defendant (1) associated with a criminal venture, (2) participated in the
venture, and (3) sought by action to make the venture successful.” United
States v. Ramirez-Velasquez, 322 F.3d 868, 880 (5th Cir. 2003). To prove an
“attempt” to aid and abet the possession with intent to distribute a
controlled substance, the prosecution must prove “(1) that the defendant
acted with the kind of culpability otherwise required for the commission of
the underlying substantive offense, and (2) that the defendant had engaged
in conduct which constitutes a substantial step toward commission of a
crime.” United States v. Partida, 385 F.3d 546, 560 (5th Cir. 2004).
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Case: 19-40655 Document: 00515596088 Page: 3 Date Filed: 10/09/2020
No. 19-40655
Hernandez, a sergeant with the City of Progreso Police Department in
Texas, made an agreement with Hector Saucedo-Rodriguez (Saucedo), a
confidential informant working undercover with federal law enforcement, to
act as a scout for vehicles carrying drugs moving through Progreso in
exchange for money. Hernandez accepted payment from Saucedo after
performing those scout duties on July 15 and July 31, 2017. Hernandez, with
Saucedo riding with him as a passenger, drove up and down the route used
by the undercover vehicles carrying the loads of cocaine, while Saucedo was
in contact with the driver of the load vehicles giving the all clear. On the first
date Hernandez used his private vehicle, but on the second date, Hernandez
used his marked patrol car to scout the area to clear a safe passage for the load
vehicle. A rational jury could find that Hernandez provided protection for
the drug loads, which conduct is the kind of supporting action that proves his
participation in the criminal endeavor. His actions in meeting with Saucedo
to discuss the drug loads, acting as a scout, and accepting payment,
demonstrate criminal intent consistent with the intent to attempt to aid and
abet the cocaine possession, and his conduct amounted to substantial steps
beyond mere preparation toward completion of the crime. See Partida, 385
F.3d at 560-61; United States v. Cartlidge, 808 F.2d 1064, 1068-69 (5th Cir.
1987).
According to Hernandez, there was no evidence that he actually
possessed or constructively possessed a controlled substance. However,
aiding and abetting the possession of a controlled substance with the intent
to distribute does not require the Government to prove actual or constructive
possession. United States v. Scott, 892 F.3d 791, 799 (5th Cir. 2018). “Aiding
and abetting merely requires that the defendant’s association and
participation in a venture were calculated to bring about the venture’s
success.” Id. The Government was not required to prove that Hernandez
possessed or attempted to possess the cocaine. See id.
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To the extent that Hernandez suggests the jury charge required the
Government to prove that he had actual or constructive possession,
“[s]ufficiency is measured against the actual elements of the offense, not the
elements stated in the jury instructions.” United States v. Staggers, 961 F.3d
745, 756 (5th Cir. 2020).
Last, Hernandez argues that his trial counsel rendered ineffective
assistance by failing to renew the motion for a judgment of acquittal at the
close of all the evidence to preserve his claim of insufficient evidence. We
generally will not consider the merits of an ineffective assistance of counsel
claim on direct appeal. See United States v. Isgar, 739 F.3d 829, 841 (5th Cir.
2014). We decline to consider Hernandez’s ineffective assistance claim at
this time, without prejudice to collateral review. See id.
AFFIRMED.
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