                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                            December 5, 2006
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                            No. 06-40089



UNITED STATES OF AMERICA

          Plaintiff-Appellee

v.

SERVANDO VELA, JR

          Defendant-Appellant


           Appeal from the United States District Court
     for the Southern District of Texas, Brownsville Division
                       USDC No. 1:05-CR-546-2


Before KING, GARZA, and OWEN, Circuit Judges.

PER CURIAM:*

     Defendant-appellant Servando Vela, Jr. appeals his

conviction pursuant to 21 U.S.C. § 846 for conspiracy to possess

with intent to distribute less than fifty kilograms of marijuana

and his conviction pursuant to 21 U.S.C. § 841(a)(1) for

possession with intent to distribute approximately 47.66

kilograms of marijuana.    He argues on appeal that the evidence is

insufficient to support his convictions and that 21 U.S.C. § 841


     *
      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this opinion should not be published and is not precedent except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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is unconstitutional on its face in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000).                For the following reasons we AFFIRM

the district court’s judgment.

                     I. FACTUAL AND PROCEDURAL BACKGROUND

     The parties tried this case in a bench trial and stipulated

to the following facts, which were read into the record.

              On June 25, 2005, the defendants, Larry Junior
              Chasten and Servando Vela, Jr., were stopped
              in a tractor-trailer in Willacy County, Texas
              by ICE agents.1    Servando Vela, Jr. was a
              passenger in the tractor-trailer. During the
              inspection of this vehicle, 47.66 kilograms
              (104.8 pounds) of marijuana were found inside
              the trailer of this vehicle. Servando Vela,
              Jr. gave a voluntary statement admitting that
              he knew the marijuana was present and that he
              guided Chasten to the house where the
              marijuana was loaded so that it could be
              transported further into the United States and
              distributed to another party.

     Neither the government nor Vela called any witnesses.               The

district court then convicted Vela of conspiracy to possess with

intent to distribute and possession with intent to distribute and

sentenced Vela to thirty-three months imprisonment.

                        II. SUFFICIENCY OF THE EVIDENCE

A.   Standard of Review

     We review a challenge to the sufficiency of the evidence

after a bench trial in the light most favorable to the government




     1
         Chasten was tried separately and convicted.

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and defer to all reasonable inferences drawn by the fact finder.2

United States v. Ybarra, 70 F.3d 362, 364 (5th Cir. 1995).

Evidence is sufficient to sustain a conviction if “substantial

evidence supports the finding of guilty.”   Id.   In other words,

we affirm the conviction if “the evidence is sufficient to

justify the trial judge, as trier of the facts, in concluding

beyond a reasonable doubt that the defendant was guilty.”    Id.

The test remains the same when, as here, the record consists

wholly of stipulated facts.   See United States v. Moore, 427 F.2d

38, 41-42 (5th Cir. 1970) (“We apply here the same test to

determine the sufficiency of the stipulated facts as would be

applied if we were reviewing the relevant and admissible evidence

upon the action of the trial court.”).   To prevail, Vela must

show that no rational trier of fact could have found beyond a

reasonable doubt that Vela conspired to possess drugs with intent

to distribute and actually possessed drugs with intent to

distribute.   See United States v. Serna-Villarreal, 352 F.3d 225,

234 (5th Cir. 2003).   Yet, “it is not necessary that the evidence

exclude every reasonable hypothesis of innocence or be wholly

inconsistent with every conclusion except that of guilt.”    United

States v. Henry, 849 F.2d 1534, 1536 (5th Cir. 1988).


     2
      “A trial court judge can draw reasonable inferences about
an element of the crime based on stipulated facts” just as the
fact finder could make inferences from evidence admitted and the
testimony of witnesses. United States v. Bazuaye, 240 F.3d 861,
864 (9th Cir. 2001).

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     This is the proper standard of review even though Vela did

not make a motion for acquittal at the close of the evidence.

Error is preserved because Vela’s not-guilty plea serves as a

motion for acquittal in a bench trial.   See United States v.

Rosas-Fuentes, 970 F.2d 1379, 1381 (5th Cir. 1992).

B.   Conspiracy to Possess with Intent to Distribute

     In order to prove conspiracy to possess with intent to

distribute marijuana under 21 U.S.C. § 846, the government must

prove beyond a reasonable doubt: “(1) the existence of an

agreement between two or more persons to violate the narcotics

laws,” (2) the defendant’s “knowledge of the conspiracy,” and

(3) the defendant’s “voluntary participation in the conspiracy.”

Rosa-Fuentes, 970 F.2d at 1382.   An agreement may be either

explicit or implicit, and the fact finder may infer an agreement

from “a concert of action.”   United States v. Mann, 161 F.3d 840,

847 (5th Cir. 1998).   A fact finder can infer an agreement to

join a conspiracy “from the performance of acts that further its

purpose” even though not every act “that assists in the

accomplishment of the objective of the conspiracy is a sufficient

basis to demonstrate his concurrence in that agreement.”     United

States v. Alvarez, 610 F.2d 1250, 1255 (5th Cir. 1980).     An

individual’s “[m]ere presence at the scene of a crime or close

association with a co-conspirator will not support an inference

of participation in a conspiracy.”    United States v. Tenorio, 360

F.3d 491, 495 (5th Cir. 2004).

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     Vela argues that the government offered no direct or

circumstantial evidence that Vela reached an agreement with

Chasten or any other person to violate the narcotics laws.    Vela

contends that while the facts show that Vela brought Chasten to

the marijuana in hopes of furthering the distribution of the

marijuana, there is no indication that Vela ever asked Chasten to

join in this scheme or that Chasten assented.   Vela also contends

that because the evidence does not directly show Chasten’s

knowledge that the marijuana was in the trailer or who loaded the

marijuana into the trailer, the fact finder could not reasonably

infer any agreement existed.

     The stipulated facts are enough to support the conviction

even though there is no direct evidence of an agreement and other

details of the transaction are missing.   Vela admitted that he

guided Chasten to the location where the marijuana was loaded so

that it could be distributed in the United States.   A reasonable

fact finder could infer from this that Vela and Chasten acted in

concert, with Chasten as driver and Vela as navigator, for the

purpose of distributing marijuana.   Because an agreement can be

inferred when individuals act in concert, we hold that the

evidence is sufficient for the agreement element of conspiracy.

See Mann, 161 F.3d at 847.

     As to the other elements of the conspiracy charge, Vela

admitted his knowledge that the drugs would be transported

further into the United States and his participation in the

                                5
scheme.   Because we conclude that the government’s evidence was

sufficient to establish each element of conspiracy, we affirm

Vela’s conviction.

C.   Possession with Intent to Distribute

     In order to convict Vela of possession of marijuana with

intent to distribute pursuant to § 841(a)(1), the government had

to prove that Vela “(1) knowingly (2) possessed marijuana

(3) with intent to distribute it.”   United States v. Jaras, 86

F.3d 383, 386 (5th Cir. 1996).   Vela contends that the government

did not adequately prove the possession element of the offense.

     Pretermitting any discussion of whether Vela had actual or

constructive possession of the marijuana (or aided and abetted

Chasten’s possession of the marijuana), we turn to liability

under United States v. Pinkerton, 328 U.S. 640 (1946).    Even if a

defendant who is a coconspirator in a marijuana distribution

conspiracy does not personally possess the marijuana, he can be

held liable for the substantive counts against the

coconspirators.   See id., 328 U.S. 640, 646-47 (1946).   That is,

“[a] party to a continuing conspiracy may be criminally liable

for a substantive offense committed by a co-conspirator in

furtherance of the conspiracy, even though the party does not

participate in the substantive offense.”    United States v.

Garcia, 242 F.3d 593, 597 n. 3 (5th Cir. 2001).   Thus, once both

a conspiracy and the defendant’s knowing participation in it are

proved beyond a reasonable doubt, “a defendant is guilty of the

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substantive acts his partners committed in furtherance of the

conspiracy.”   United States v. Narviz-Guerra, 148 F.3d 530, 535

(5th Cir. 1998).

     The facts state that both Vela and Chasten were stopped with

the tractor-trailer of marijuana and that Vela was a passenger.

A reasonable fact finder could infer that Chasten was driving the

truck because Vela guided him to the marijuana.      And there is no

evidence that anyone else was with them.      The fact finder could

reasonably infer, therefore, that one or both of the men must

have had possession of the drugs.      If it was Chasten, then co-

conspirator liability results in Vela being guilty of the

substantive offense, because no evidence establishes Vela’s

withdrawal from the conspiracy.       See Garcia, 242 F.3d at 597.    If

Vela possessed the drugs, then he is guilty of the substantive

offense without co-conspirator liability because the stipulated

facts establish the other elements of the offense.

                   III. CONSTITUTIONALITY OF § 841

     Vela also contends that 21 U.S.C. § 841(a),(b) is

unconstitutional under Apprendi, 530 U.S. at 466.      He

acknowledges that this argument is foreclosed by United States v.

Slaughter, 238 F.3d 580, 582 (5th Cir. 2000), but raises it to

preserve it for further review.   As we stated in Slaughter, “[w]e

see nothing in the Supreme Court decision in Apprendi which would

permit us to conclude that 21 U.S.C. §§ 841(a) and (b) [and] 846



                                  7
[] are unconstitutional on their face.”   Id.   Accordingly, Vela’s

argument that § 841 is unconstitutional in light of Apprendi

fails.

                         IV. CONCLUSION

     For the above reasons, we AFFIRM the conspiracy conviction

pursuant to 21 U.S.C. § 846 and the possession of marijuana with

intent to distribute conviction under 21 U.S.C. § 841.




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