United States v. Jesus Cortez

Case: 17-50504 Document: 00514542456 Page: 1 Date Filed: 07/05/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 17-50504 July 5, 2018
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JESUS CORTEZ, also known as Jesus, also known as Jesus Eduardo Cortez,
also known as Jesus E. Cortez-Olveda, also known as Jesus E. Cortez, also
known as Jesus Olveda Cortez, also known as Jesus Eduardo Cortez-Olveda
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:12-CR-1053-3
Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Defendant-Appellant Jesus Cortez was convicted by a jury of conspiracy
to possess with intent to distribute methamphetamine; aiding and abetting
possession with intent to distribute methamphetamine; and using, carrying,
and possessing a firearm in furtherance of a drug trafficking crime. He appeals
his conviction and sentence for his 18 U.S.C. § 924(c) firearms offense.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 17-50504 Document: 00514542456 Page: 2 Date Filed: 07/05/2018
No. 17-50504
Cortez argues that the evidence was insufficient to support his firearms
conviction for possession of a firearm during a drug trafficking crime because
the gun he possessed was atypical of firearms associated with drug related
crimes, he possessed it legitimately for self-defense, and no drugs were found
in his vehicle. The trial evidence, which we view in favor of the verdict, when
applied to relevant factors, supports that a reasonable jury could find that
Cortez possessed the pistol at issue in furtherance of the conspiracy for which
he was convicted. United States v. Suarez, 879 F.3d 626, 630 (5th Cir. 2018).
Specifically, when Cortez was stopped and found with a gun in his
vehicle, his car was parked in the same parking lot as his codefendant’s vehicle,
which concealed a large amount of methamphetamine with a street value of
tens of thousands of dollars that he planned to unload at his father’s house.
See Suarez, 879 F.3d at 632; United States v. Ceballos-Torres, 218 F.3d 409,
415 (5th Cir.), as amended on denial of reh’g en banc, 226 F.3d 651 (5th Cir.
2000). Contrary to his assertion, handguns are commonly used in drug
trafficking. See Suarez, 879 F.3d at 632; United States v. Zamora, 661 F.3d
200, 211 (5th Cir. 2011). Cortez’s gun was loaded with a chambered round,
and it was immediately accessible to him. See Suarez, 879 F.3d at 632; United
States v. Rose, 587 F.3d 695, 702-03 (5th Cir. 2009). Cortez testified that he
carried a loaded gun in the event he was robbed. See Ceballos-Torres, 218 F.3d
at 415. The evidence was sufficient to support his conviction.
Cortez argues that the district court plainly erred when it instructed the
jury on his firearms offense because it mixed up the elements of the offense
and failed to follow § 924(c)’s language or the Fifth Circuit Pattern
Instructions. The district court’s decision not to follow the Pattern Jury
Instructions with respect to using or carrying a firearm is not per se error.
United States v. Tomblin, 46 F.3d 1369, 1379 n.16 (5th Cir. 1995).
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No. 17-50504
The district court instructed the jury that it could find Cortez guilty of
the firearm offense alleged in Count Three if it found that he either carried or
used or possessed a firearm in furtherance of a drug trafficking offense.
However, under § 924(c), carrying or using a firearm in furtherance of a drug
trafficking crime, “though related, is different from the possession offense.”
United States v. Blevins, 755 F.3d 312, 319 (5th Cir. 2014). Even if the court
erred, Cortez fails to make the requisite showing that “considering the entire
charge and evidence presented against [him], there is a likelihood of a grave
miscarriage of justice.” United States v. Stafford, 983 F.2d 25, 26 (5th Cir.
1993).
AFFIRMED.
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