          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                FILED
                                                                October 20, 2009
                               No. 09-50135
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee

v.

JAMES DESHAWN HUTCHINS, also known as James Hutchins,

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                           USDC No. 7:08-CR-191-2


Before REAVLEY, DAVIS, and HAYNES, Circuit Judges.
PER CURIAM:*
      James Deshawn Hutchins was convicted of aiding and abetting the
possession with intent to distribute five grams or more of cocaine base, aiding
and abetting the possession with intent to distribute cocaine, and aiding and
abetting the possession of a firearm in furtherance of a drug trafficking crime.
      Hutchins argues that the evidence was insufficient to support his
convictions. “This court must affirm a conviction if the evidence, viewed in the



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                   No. 09-50135

light most favorable to the verdict, with all reasonable inferences and credibility
choices made in support of it, is such that a trier of fact reasonably could have
found the essential elements of the crime beyond a reasonable doubt.” United
States v. Pando Franco, 503 F.3d 389, 393-94 (5th Cir. 2007), cert. denied, 128
S. Ct. 1874 (2008).
      Anyone who “aids, abets, counsels, commands, induces or procures” the
commission of an offense “is punishable as a principal.” 18 U.S.C. § 2. To prove
aiding and abetting, the Government must prove that the elements of the
substantive offense occurred and that the defendant associated himself with the
venture, participated in the venture, and sought by his actions to make the
venture succeed. Pando Franco, 503 F.3d at 394. Hutchins does not argue that
the Government failed to prove that the elements of the substantive offenses
occurred.   He argues that the evidence is insufficient to support the other
elements of aiding and abetting.
      According to the evidence at trial, Hutchins was a passenger in a SUV that
was stopped around 1:15 in the morning on July 30, 2008, in Odessa, Texas. A
police officer saw Hutchins making “stuffing” or “reaching” movements toward
the passenger door compartment of the SUV, where marijuana was found. In
a pair of shorts found in the middle of the third seat of the SUV, police officers
found a bag of crack cocaine, a bag of powder cocaine, a handgun, and a
photocopy of the driver’s license of the SUV’s driver, Johnny McBride, Jr., who
was Hutchins’s cousin. Experts testified that the amounts of crack cocaine
(20.26 grams) and of powder cocaine (22.96 grams) were consistent with an
intent to distribute. McBride had on his person over $1000 in cash, broken into
$100 increments, consistent with drug trafficking. Hutchins admitted to FBI
agents that, after dark on July 29, 2008, he and McBride had stolen the drugs
and gun from the Hobbs, New Mexico, home of a person McBride knew to be a
drug dealer and then had returned to Odessa for a family function.



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      This evidence was sufficient to satisfy the remaining elements of aiding
and abetting. Hutchins admitted that he and McBride broke into a known drug
dealer’s home and stole the drugs and a firearm. This established, or at least
supported a reasonable inference, that Hutchins shared the criminal intent to
possess the drugs with an intent to distribute them and to possess the firearm
in furtherance of the drug trafficking crime. It also established that Hutchins
engaged in affirmative conduct designed to make the venture succeed and sought
by his actions to make the venture succeed. See Pando Franco, 503 F.3d at 394.
Although Hutchins did not provide detailed information to the FBI agents
regarding the Hobbs home or an estimated time that he and McBride
burglarized it, that does not negate the testimony that Hutchins admitted that
he and McBride burglarized a home and stole the drugs and guns that were later
found in the SUV. The lack of Hutchins’s fingerprints on these items is of no
moment because a fingerprint expert testified that he was unable to lift any
usable latent prints from these items. Because a rational trier of fact could have
found that Hutchins aided and abetted the substantive offenses, his challenge
to the sufficiency of the evidence fails.
      Hutchins also argues that the district court erred in denying him a
reduction in his offense level for his minor role in the offense under U.S.S.G.
§ 3B1.2. A minor role reduction applies only to a defendant who is substantially
less culpable than the average participant and “peripheral to the advancement
of the illicit activity.” United States v. Villanueva, 408 F.3d 193, 203-04 (5th Cir.
2005). The defendant has the burden of showing that he is entitled to the
adjustment.    United States v. Garcia, 242 F.3d 593, 597 (5th Cir. 2001).
      Even if McBride was the source of the information about the drug dealer’s
home, Hutchins, by his own admission, fully participated in the burglary of that
home and stole the drugs and firearm that were the subject of the aiding and
abetting charges. Thus, Hutchins’s participation was not peripheral, but was
essential, to the advancement of the illicit activity, see Villanueva, 408 F.3d at

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204, and was clearly “coextensive with the conduct for which he was held
accountable.” See Garcia, 242 F.3d at 598-99. Because Hutchins’s role in the
offense was not minor, the district court did not clearly err in denying him a role
adjustment under § 3B1.2. See Villanueva, 408 F.3d at 203 & n.9.
      AFFIRMED.




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