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

                                                FILED
                                                                 September 22, 2009
                                 No. 08-10419
                               Summary Calendar               Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee

v.

JESSIE BUSTAMANTE,

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                           USDC No. 3:07-CR-329-3


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
      Jessie Bustamante appeals his conviction for conspiracy to possess with
intent to distribute methamphetamine. He argues for the first time on appeal
that his guilty plea was not supported by a factual basis demonstrating an
agreement to violate the narcotics law or his knowledge of and participation in
the conspiracy. The Government has moved for summary affirmance and, in the
alternative, for an extension of time in which to file a merits brief, arguing that



      *
      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should not be published and is not precedent except under the limited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. 08-10419

Bustamante’s appeal is frivolous. Our review is for plain error only. See United
States v. Vonn, 535 U.S. 55, 59 (2002).
      While Bustamante’s mere presence at the scene of illegal activity was
alone insufficient evidence of an agreement or of his participation or knowledge,
the district court was nevertheless permitted to consider his presence or
association with the conspiracy as evidence of participation along with other
circumstantial evidence. See United States v. Fuchs, 467 F.3d 889, 908 (5th Cir.
2006). According to Bustamante’s factual stipulation, agents observed a co-
conspirator deliver a box of methamphetamine to a hotel room occupied by
Bustamante and a second co-conspirator. Shortly thereafter, agents observed
an individual enter the hotel room and leave with the box of methamphetamine.
When agents entered the hotel room, they found Bustamante lying on a bed with
a digital scale, which was located next to a night stand that stored a bag
containing a spoon and a large amount of methamphetamine. Bustamante
further   admitted   that   the   organization    sold   at least 309   grams   of
methamphetamine.
      The district court did not plainly err in inferring from these circumstances
the existence of an agreement to violate the narcotics laws or Bustamante’s
participation in and knowledge of the conspiracy. See United States v. Stephens,
571 F.3d 401, 404 (5th Cir. 2009); States v. Norman, 415 F.3d 466, 471 (5th Cir.
2005). As such, the judgment is affirmed, and the Government’s motion for
summary affirmance is granted.
    AFFIRMED; MOTION FOR SUMMARY AFFIRMANCE GRANTED;
MOTION FOR EXTENSION OF TIME TO FILE BRIEF DENIED.




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