United States v. Vela

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
December 5, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-40089
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
SERVANDO VELA, JR
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas, Brownsville Division
USDC No. 1:05-CR-546-2
Before KING, GARZA, and OWEN, Circuit Judges.
PER CURIAM:*
Defendant-appellant Servando Vela, Jr. appeals his
conviction pursuant to 21 U.S.C. § 846 for conspiracy to possess
with intent to distribute less than fifty kilograms of marijuana
and his conviction pursuant to 21 U.S.C. § 841(a)(1) for
possession with intent to distribute approximately 47.66
kilograms of marijuana. He argues on appeal that the evidence is
insufficient to support his convictions and that 21 U.S.C. § 841*
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this opinion should not be published and is not precedent except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.
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is unconstitutional on its face in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000). For the following reasons we AFFIRM
the district court’s judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
The parties tried this case in a bench trial and stipulated
to the following facts, which were read into the record.
On June 25, 2005, the defendants, Larry Junior
Chasten and Servando Vela, Jr., were stopped
in a tractor-trailer in Willacy County, Texas
by ICE agents.1 Servando Vela, Jr. was a
passenger in the tractor-trailer. During the
inspection of this vehicle, 47.66 kilograms
(104.8 pounds) of marijuana were found inside
the trailer of this vehicle. Servando Vela,
Jr. gave a voluntary statement admitting that
he knew the marijuana was present and that he
guided Chasten to the house where the
marijuana was loaded so that it could be
transported further into the United States and
distributed to another party.
Neither the government nor Vela called any witnesses. The
district court then convicted Vela of conspiracy to possess with
intent to distribute and possession with intent to distribute and
sentenced Vela to thirty-three months imprisonment.
II. SUFFICIENCY OF THE EVIDENCE
A. Standard of Review
We review a challenge to the sufficiency of the evidence
after a bench trial in the light most favorable to the government
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Chasten was tried separately and convicted.
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and defer to all reasonable inferences drawn by the fact finder.2
United States v. Ybarra, 70 F.3d 362, 364 (5th Cir. 1995).
Evidence is sufficient to sustain a conviction if “substantial
evidence supports the finding of guilty.” Id. In other words,
we affirm the conviction if “the evidence is sufficient to
justify the trial judge, as trier of the facts, in concluding
beyond a reasonable doubt that the defendant was guilty.” Id.The test remains the same when, as here, the record consists
wholly of stipulated facts. See United States v. Moore, 427 F.2d
38, 41-42 (5th Cir. 1970) (“We apply here the same test to
determine the sufficiency of the stipulated facts as would be
applied if we were reviewing the relevant and admissible evidence
upon the action of the trial court.”). To prevail, Vela must
show that no rational trier of fact could have found beyond a
reasonable doubt that Vela conspired to possess drugs with intent
to distribute and actually possessed drugs with intent to
distribute. See United States v. Serna-Villarreal, 352 F.3d 225,
234 (5th Cir. 2003). Yet, “it is not necessary that the evidence
exclude every reasonable hypothesis of innocence or be wholly
inconsistent with every conclusion except that of guilt.” United
States v. Henry, 849 F.2d 1534, 1536 (5th Cir. 1988).
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“A trial court judge can draw reasonable inferences about
an element of the crime based on stipulated facts” just as the
fact finder could make inferences from evidence admitted and the
testimony of witnesses. United States v. Bazuaye, 240 F.3d 861,
864 (9th Cir. 2001).
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This is the proper standard of review even though Vela did
not make a motion for acquittal at the close of the evidence.
Error is preserved because Vela’s not-guilty plea serves as a
motion for acquittal in a bench trial. See United States v.
Rosas-Fuentes, 970 F.2d 1379, 1381 (5th Cir. 1992).
B. Conspiracy to Possess with Intent to Distribute
In order to prove conspiracy to possess with intent to
distribute marijuana under 21 U.S.C. § 846, the government must
prove beyond a reasonable doubt: “(1) the existence of an
agreement between two or more persons to violate the narcotics
laws,” (2) the defendant’s “knowledge of the conspiracy,” and
(3) the defendant’s “voluntary participation in the conspiracy.”
Rosa-Fuentes, 970 F.2d at 1382. An agreement may be either
explicit or implicit, and the fact finder may infer an agreement
from “a concert of action.” United States v. Mann, 161 F.3d 840,
847 (5th Cir. 1998). A fact finder can infer an agreement to
join a conspiracy “from the performance of acts that further its
purpose” even though not every act “that assists in the
accomplishment of the objective of the conspiracy is a sufficient
basis to demonstrate his concurrence in that agreement.” United
States v. Alvarez, 610 F.2d 1250, 1255 (5th Cir. 1980). An
individual’s “[m]ere presence at the scene of a crime or close
association with a co-conspirator will not support an inference
of participation in a conspiracy.” United States v. Tenorio, 360
F.3d 491, 495 (5th Cir. 2004).
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Vela argues that the government offered no direct or
circumstantial evidence that Vela reached an agreement with
Chasten or any other person to violate the narcotics laws. Vela
contends that while the facts show that Vela brought Chasten to
the marijuana in hopes of furthering the distribution of the
marijuana, there is no indication that Vela ever asked Chasten to
join in this scheme or that Chasten assented. Vela also contends
that because the evidence does not directly show Chasten’s
knowledge that the marijuana was in the trailer or who loaded the
marijuana into the trailer, the fact finder could not reasonably
infer any agreement existed.
The stipulated facts are enough to support the conviction
even though there is no direct evidence of an agreement and other
details of the transaction are missing. Vela admitted that he
guided Chasten to the location where the marijuana was loaded so
that it could be distributed in the United States. A reasonable
fact finder could infer from this that Vela and Chasten acted in
concert, with Chasten as driver and Vela as navigator, for the
purpose of distributing marijuana. Because an agreement can be
inferred when individuals act in concert, we hold that the
evidence is sufficient for the agreement element of conspiracy.
See Mann, 161 F.3d at 847.
As to the other elements of the conspiracy charge, Vela
admitted his knowledge that the drugs would be transported
further into the United States and his participation in the
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scheme. Because we conclude that the government’s evidence was
sufficient to establish each element of conspiracy, we affirm
Vela’s conviction.
C. Possession with Intent to Distribute
In order to convict Vela of possession of marijuana with
intent to distribute pursuant to § 841(a)(1), the government had
to prove that Vela “(1) knowingly (2) possessed marijuana
(3) with intent to distribute it.” United States v. Jaras, 86
F.3d 383, 386 (5th Cir. 1996). Vela contends that the government
did not adequately prove the possession element of the offense.
Pretermitting any discussion of whether Vela had actual or
constructive possession of the marijuana (or aided and abetted
Chasten’s possession of the marijuana), we turn to liability
under United States v. Pinkerton, 328 U.S. 640 (1946). Even if a
defendant who is a coconspirator in a marijuana distribution
conspiracy does not personally possess the marijuana, he can be
held liable for the substantive counts against the
coconspirators. See id., 328 U.S. 640, 646-47 (1946). That is,
“[a] party to a continuing conspiracy may be criminally liable
for a substantive offense committed by a co-conspirator in
furtherance of the conspiracy, even though the party does not
participate in the substantive offense.” United States v.
Garcia, 242 F.3d 593, 597 n. 3 (5th Cir. 2001). Thus, once both
a conspiracy and the defendant’s knowing participation in it are
proved beyond a reasonable doubt, “a defendant is guilty of the
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substantive acts his partners committed in furtherance of the
conspiracy.” United States v. Narviz-Guerra, 148 F.3d 530, 535
(5th Cir. 1998).
The facts state that both Vela and Chasten were stopped with
the tractor-trailer of marijuana and that Vela was a passenger.
A reasonable fact finder could infer that Chasten was driving the
truck because Vela guided him to the marijuana. And there is no
evidence that anyone else was with them. The fact finder could
reasonably infer, therefore, that one or both of the men must
have had possession of the drugs. If it was Chasten, then co-
conspirator liability results in Vela being guilty of the
substantive offense, because no evidence establishes Vela’s
withdrawal from the conspiracy. See Garcia, 242 F.3d at 597. If
Vela possessed the drugs, then he is guilty of the substantive
offense without co-conspirator liability because the stipulated
facts establish the other elements of the offense.
III. CONSTITUTIONALITY OF § 841
Vela also contends that 21 U.S.C. § 841(a),(b) is
unconstitutional under Apprendi, 530 U.S. at 466. He
acknowledges that this argument is foreclosed by United States v.
Slaughter, 238 F.3d 580, 582 (5th Cir. 2000), but raises it to
preserve it for further review. As we stated in Slaughter, “[w]e
see nothing in the Supreme Court decision in Apprendi which would
permit us to conclude that 21 U.S.C. §§ 841(a) and (b) [and] 846
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[] are unconstitutional on their face.” Id. Accordingly, Vela’s
argument that § 841 is unconstitutional in light of Apprendi
fails.
IV. CONCLUSION
For the above reasons, we AFFIRM the conspiracy conviction
pursuant to 21 U.S.C. § 846 and the possession of marijuana with
intent to distribute conviction under 21 U.S.C. § 841.
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