     Case: 13-10894      Document: 00512704824         Page: 1    Date Filed: 07/21/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-10894
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            July 21, 2014
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

SERGIO MORENO VIDALES, also known as Yayo, also known as Rene
Pedraza Guerrero, also known as Jose Manuel Juarez Preciado,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Northern District of Texas
                            USDC No. 3:11-CR-154-17


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
       A jury found Sergio Moreno Vidales guilty of conspiracy to possess with
intent to distribute more than 500 grams of methamphetamine (count one);
possession with intent to distribute 500 grams or more of methamphetamine
(count three); possession of a firearm in furtherance of a drug trafficking
offense (count four); and possession of a firearm by an alien unlawfully in the



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                   No. 13-10894

United States (count four). The district court sentenced him to a total of 363
months in prison to be followed by a total of five years of supervised release.
Vidales now appeals his conviction of count four, arguing that the evidence was
insufficient to demonstrate that he possessed the firearm in furtherance of or
in relation to drug trafficking.
      As Vidales did not preserve his challenge to the sufficiency of the
evidence by a motion for acquittal, we review for plain error. United States v.
Delgado, 672 F.3d 320, 331-32 (5th Cir. 2012) (en banc).          To satisfy this
standard, Vidales must demonstrate a manifest miscarriage of justice,
meaning that the record must be devoid of evidence of guilt or the evidence
must be so tenuous as to make the verdict shocking. Id. at 330-31. This court
reviews all evidence and reasonable inferences in the light most favorable to
the verdict. United States v. Rose, 587 F.3d 695, 702 (5th Cir. 2009).
      In a prosecution pursuant to 18 U.S.C. § 924(c)(1)(A), a defendant is
deemed to possess a firearm “in furtherance of the drug trafficking offense
when it furthers, advances, or helps forward that offense.” United States v.
Ceballos-Torres, 218 F.3d 409, 410-411 (5th Cir. 2000). We consider a number
of factors in making this determination, including (1) the type of drug activity,
(2) the type of firearm, (3) the accessibility of the firearm, (4) the proximity of
the firearm to drugs or drug profits, (5) whether the firearm was loaded, (6)
whether the firearm was stolen, (7) whether the firearm was possessed legally
or illegally, and (8) the time and circumstances under which the firearm was
found. Id. at 414-15.
      Here, a Browning 9mm pistol was discovered under a pillow on a bed on
which Vidales was lying; the firearm was cocked and loaded; more than 1.2
kilograms of methamphetamine, drug distribution paraphernalia, and other
weapons were found in the bedroom closet; and Vidales could not legally



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                                 No. 13-10894

possess a firearm because of his alien status.       Even under the ordinary
standard of review, the evidence was sufficient to support the jury’s verdict.
See Ceballos-Torres, 218 F.3d at 414-15; United States v. Charles, 469 F.3d 402,
407-08 (5th Cir. 2006). Vidales necessarily fails to satisfy the more stringent
plain error standard.
      We need not address the parties’ separate arguments regarding whether
Vidales’s possession of the firearm was “in relation to” a drug trafficking
offense. Vidales was neither charged with nor convicted of using or carrying a
firearm in relation to a drug trafficking offense, conduct distinct from
possession of a firearm in furtherance of a drug trafficking offense.        See
§ 924(c)(1)(A); United States v. McGilberry, 480 F.3d 326, 329 & n.1 (5th Cir.
2007). We also reject Vidales’s patently meritless argument that he did not
traffic drugs for purposes of § 924(c)(1)(A). Vidales was convicted of conspiracy
to possess with intent to distribute methamphetamine, which is the predicate
drug trafficking offense charged in count four.        He does not separately
challenge his drug conspiracy conviction; he merely relies on a conclusory
statement by a single witness that he did not traffic drugs, a statement that is
contrary to the evidence, including other testimony by that same witness.
      In his second point of error, Vidales argues that the oral pronouncement
of the sentence and the written judgment are inconsistent with respect to
terms of supervised release on counts four and five. Thus, he contends there
is either an ambiguity or a conflict requiring remand. There is no merit to this
claim. The district court clarified the supervised release terms it intended to
impose shortly after making the purportedly inconsistent statement, and those
terms are reflected in the written judgment.
      AFFIRMED.




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