     Case: 10-50706 Document: 00511493350 Page: 1 Date Filed: 05/31/2011




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

                                                 FILED
                                                                            May 31, 2011
                                     No. 10-50706
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

LUIS CARLOS CHACON-HERNANDEZ,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 4:10-CR-54-2


Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Luis Carlos Chacon-Hernandez was convicted after a jury trial of aiding
and abetting the possession with intent to distribute 50 to 100 kilograms of
marijuana. On appeal, he argues that the evidence was insufficient because the
Government did not prove that he actually or constructively possessed the
marijuana. He further contends that the evidence did not establish that he
aided and abetted the possession of marijuana. We AFFIRM.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-50706

      We view the evidence in the light most favorable to the verdict; we will
uphold a jury’s verdict if a reasonable trier of fact could conclude that the
elements of the offense were established beyond a reasonable doubt. United
States v. Percel, 553 F.3d 903, 910 (5th Cir. 2008). “To sustain a conviction for
possession of marijuana with intent to distribute, the government must prove
beyond a reasonable doubt (1) knowing (2) possession of marijuana (3) with
intent to distribute it.” United States v. Ricardo, 472 F.3d 277, 282-83 (5th Cir.
2006) (internal quotation marks and citation omitted). To prove aiding and
abetting, “the Government must establish that the substantive offense occurred
and that the defendant (1) associated with the criminal venture; (2) purposefully
participated in the crime; and (3) sought by his actions for it to succeed.” United
States v. Pando Franco, 503 F.3d 389, 394 (5th Cir. 2007).
      The evidence showed that Chacon-Hernandez entered the United States
with five other men and that he knew marijuana was being transported during
the journey. Once inside this country, Chacon-Hernandez and the five others
were picked up by Jose Padilla.       Backpacks containing 88.7 kilograms of
marijuana were placed in Padilla’s truck. Chacon-Hernandez exited the truck
with the other individuals and remained with them while the bags were
unloaded and thrown across a fence. The group then traveled together until
they were pursued by Border Patrol agents, at which time Chacon-Hernandez
paired with his co-defendant, Luis Armando Gavaldon-Juarez.
      Hours later, Chacon-Hernandez and Gavaldon-Juarez called 911 and
asked for directions. The call was broadcast to a Border Patrol agent’s radio,
and he subsequently drove to the area where Chacon-Hernandez and Gavaldon-
Juarez said they were located, which was approximately three miles from the
backpacks of marijuana. When the agent arrived at the scene, he observed
Chacon-Hernandez and Gavaldon-Juarez standing on the roadway, cold and
shaking. After Chacon-Hernandez and Gavaldon-Juarez both admitted to being
in the United States illegally, the agent discovered in their possession a cell

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                                 No. 10-50706

phone that had been used to contact Padilla. Padilla explained that he had
received phone calls on his personal cell phone with instructions regarding the
arranged pick up.
      Chacon-Hernandez’s story was implausible. He testified that he had
obtained a free ride into the United States with other individuals who were
carrying marijuana. Chacon-Hernandez further stated that he intended to visit
his father in Odessa, Texas. However, Chacon-Hernandez did not know where
his father lived, did not know his father’s phone number, and admitted that his
father had no knowledge that Chacon-Hernandez intended to visit him.
Although Chacon-Hernandez’s father had lived in Odessa for two years, Chacon-
Hernandez had never visited.
      Chacon-Hernandez admitted that he had a prior conviction for possession
of marijuana. His conviction was relevant to establishing intent for the instant
offense. See United States v. Thomas, 348 F.3d 78, 86 (5th Cir. 2003).
      There was sufficient evidence to establish that Chacon-Hernandez shared
the criminal intent to possess marijuana with an intent to distribute it, that he
engaged in affirmative conduct to make the venture succeed, and that he sought
by his actions to make the venture succeed. See Pando Franco, 503 F.3d at 394.
A reasonable trier of fact could have found beyond a reasonable doubt that
Chacon-Hernandez was guilty of aiding and abetting the possession with intent
to distribute marijuana. See Percel, 553 F.3d at 910.
      Accordingly, the judgment of the district court is AFFIRMED.




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