                                                                                           United States Court of Appeals
                                                                                                    Fifth Circuit
                                                                                                  F I L E D
                       IN THE UNITED STATES COURT OF APPEALS
                                                                                                    May 2, 2007
                                    FOR THE FIFTH CIRCUIT
                                                                                             Charles R. Fulbruge III
                                                                                                     Clerk


                                             No. 06-10566
                                           Summary Calendar


UNITED STATES OF AMERICA,

                                                                                             Plaintiff-
                                                            Appellee,

                                                   versus

JONATHAN DAVID WEST,

                                                                                       Defendant-
                                                            Appellant.

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                             Appeal from the United States District Court
                                    for the Northern District of Texas
                                          USDC No. 4:05-CR-79
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Before DeMOSS, STEWART and PRADO, Circuit Judges.

PER CURIAM:*

        Jonathan David West appeals following his conviction by a jury of possession with intent to

distribute five kilograms or more of cocaine and aiding and abetting, in violation of 21 U.S.C. §

841(a)(1) and 18 U.S.C. § 2. The Government has filed a motion for summary affirmance or,

alternatively, to dismiss the appeal or for an extension of time to file its brief.




        *
           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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
       West argues on appeal that the evidence was insufficient because the Government failed to

prove he had actual or constructive possession of the cocaine. He also argues that the Government

may not rely on a theory of aiding and abetting because the district court did not instruct the jury on

the elements of aiding and abetting and the evidence was also insufficient for this offense.

       “In reviewing an appeal based on insufficient evidence, the standard is whether any reasonable

trier of fact could have found that the evidence established the appellant’s guilt beyond a reasonable

doubt.” United States v. Jaramillo, 42 F.3d 920, 922-23 (5th Cir. 1995)(citing Jackson v. Virginia,

443 U.S. 307, 319 (1979)). This court considers “the evidence in the light most favorable to the

government with all reasonable inferences and credibility choices made in support of the jury verdict.”

United States v. Gonzales, 436 F.3d 560, 571 (5th Cir.), cert. denied, 126 S. Ct. 2363 (2006).

       The evidence showed that West arranged for the drug transaction by locating the buyer and

instructing his codefendant Eduardo Galan to obtain the cocaine and bring it to Fort Worth. Prior

to the transaction, West drove Galan to meet the purported buyer, who was actually a confidential

informant (CI). West called Galan several times while Galan was transporting the cocaine to Fort

Worth to ask about the arrival time. West allowed Galan to park Galan’s truck with the cocaine

hidden inside in his garage. He instructed Galan to bring some of the cocaine into the house so that

the CI could inspect it. He gave his cell phone to the CI to make the call for the money. When Galan

and the CI were separated, Galan called West to come pick him up. West and Galan were to split

the proceeds of the transaction. The evidence was sufficient to show that West associated with the

criminal venture and sought by his actions for the venture to succeed. See United States v. Garcia,

242 F.3d 593, 596 (5th Cir. 2001); Jaramillo, 42 F.3d at 924. The district court’s instructions on




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aiding and abetting were also sufficient. See United States v. Neal, 951 F.2d 630, 633 (5th Cir.

1992); United States v. Walker, 621 F.2d 163, 166 (5th Cir. 1980).

       West also argues that the presumption of reasonableness created by United States v. Mares,

402 F.3d 511, 519 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005), violates the Fifth and Sixth

Amendments. He concedes that his argument is foreclosed by circuit precedent, and he raises the

issue only to preserve it for further review.

       The Government’s motion for summary affirmance is GRANTED, and its request for

dismissal or an extension of time to file its brief is DENIED.

       AFFIRMED.




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