     Case: 12-50839       Document: 00512343483         Page: 1    Date Filed: 08/16/2013




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

                                                                           FILED
                                                                         August 16, 2013
                                      No. 12-50839
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                   Plaintiff—Appellee,
v.

JUVENAL AMBRIZ,

                                   Defendant—Appellant.



                   Appeal from the United States District Court
                        for the Western District of Texas



Before REAVLEY, ELROD, and GRAVES, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
       Defendant-Appellant Juvenal Ambriz appeals his conviction of a single
count of distribution of a controlled substance in violation of 21 U.S.C.
§ 841(a)(1). For the following reasons, we AFFIRM.
                                             I.
       On the evening of January 5, 2012, Drug Enforcement Administration
(DEA) Agent Jason Cloutier went to Jaguars Gold Club in an undercover
capacity.1 At about 2:00 a.m., Agent Cloutier approached a male patron in the
club and indicated that he was looking for some cocaine. The patron sold Agent

       1
         We describe the facts as presented at Ambriz’s trial, viewing them—as we must—in
the light most favorable to the verdict. United States v. Turner, 319 F.3d 716, 720 (5th Cir.
2003).
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                                       No. 12-50839

Cloutier two small baggies of cocaine in exchange for $40.00. Agent Cloutier
noted that the patron was wearing a white hooded sweatshirt and had a thin
goatee and small teardrop tattoo on his face. About an hour later, Agent
Cloutier and his partner saw the patron get into the passenger seat of a white
Chevy Blazer.
       Agent Cloutier relayed this information to other officers, who initiated a
traffic stop shortly after the Blazer left Jaguars. The officers observed a man
with a thin goatee, teardrop tattoo, and white hooded sweatshirt in the
passenger seat.       Upon inspecting the man’s driver’s license, the officers
identified him as Juvenal Ambriz.2 A consensual search of Ambriz’s person
yielded six baggies of similar manufacture, contents, and quantity to the baggies
Agent Cloutier had purchased. The deputies seized the cocaine and released
Ambriz to preserve the integrity of the undercover operation.
       A grand jury indicted Ambriz with a single count of distribution of a
controlled substance in violation of § 841(a)(1). The case proceeded to trial on
May 16, 2012. Two of the district court’s rulings are relevant here. First, the
district court denied Ambriz’s request for a jury instruction that simple
possession of a controlled substance in violation of 21 U.S.C. § 844(a) is a lesser-
included offense of distribution of a controlled substance in violation of
§ 841(a)(1). Second, the district court denied Ambriz’s motion in limine to
exclude evidence regarding the six baggies of cocaine found on Ambriz’s person
at the time of his arrest. Ultimately, the jury found Ambriz guilty of distribution
of a controlled substance. The district court sentenced Ambriz to 18 months in
prison and a three-year term of supervised release. Ambriz timely appealed.
                                              II.



       2
          At trial, Cloutier identified Ambriz as the man who sold him cocaine in Jaguars.
Cloutier also testified that Ambriz’s driver’s license, which depicted Ambriz with a thin beard
and teardrop tattoo, was an accurate representation of what he looked like on the night in
question.

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       On appeal, Ambriz argues that (1) the district court erred when it denied
him a lesser-included-offense instruction; and (2) the district court’s admission
into evidence of the baggies of cocaine violated Rule 403 of the Federal Rules of
Evidence. We address each argument in turn.
                                             A.
       Ambriz must satisfy a two-pronged inquiry to demonstrate that he was
entitled to a lesser-included-offense instruction.3 See United States v. Cooper,
714 F.3d 873, 879 (5th Cir. 2013); see also United States v. Browner, 889 F.2d
549, 550–51 (5th Cir. 1989) (Browner I) (citing Schmuck v. United States, 489
U.S. 705, 716 (1989)).        First, he must show that the elements of simple
possession are a “subset” of the elements of distribution. Cooper, 714 F.3d at
879. Second, he must show that, based on the evidence presented at trial, a
rational jury could have acquitted him of distribution and convicted him of
simple possession. Id. We review the first prong de novo and the second under
an abuse-of-discretion standard. United States v. Finley, 77 F.3d 250, 256 (5th
Cir. 2007).
       Our analysis starts and ends with the first prong. In accordance with the
Supreme Court’s guidance in Schmuck, we employ an elements-based test to
determine whether the elements of one offense are a subset of the elements of
another. See United States v. Browner, 937 F.2d 165, 168, 172 (5th Cir. 1991)
(Browner II) (interpreting Schmuck to adopt a “strict statutory elements test”).
Thus, we compare “the statutory elements of the offenses in question, and not
. . . [the] conduct proved at trial” to determine whether one offense is a subset of
the other.4 United States v. Estrada-Fernandez, 150 F.3d 491, 494 (5th Cir.

       3
          Federal Rule of Criminal Procedure 31(c) provides that a defendant “may be found
guilty of . . . an offense necessarily included in the offense charged,” otherwise known as a
lesser-included offense. Fed. R. Crim. P. 31(c) (emphasis added).
       4
         For example, we have concluded that simple possession in violation of § 844(a) is a
lesser-included offense of possession with intent to distribute under § 841(a)(1), in part
because both counts depend on the same term: possession. See United States v. Deisch, 20

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1998) (quoting Schmuck, 489 U.S. at 716–17). In performing this test, we
construe the relevant criminal statutes in accordance with ordinary principles
of statutory interpretation. See Carter v. United States, 530 U.S. 255, 260–61
(2000). For the elements of the lesser offense to be a subset of the charged
offense, it must be “impossible to commit the [charged offense] without first
having committed the lesser.” Schmuck, 489 U.S. at 719 (citations omitted).
       Here, the offenses at issue are identical except in the obvious respect: one
requires possession and the other requires distribution. Compare United States
v. Krout, 66 F.3d 1420, 1431 (5th Cir. 1995) (explaining that the elements of
simple possession of a controlled substance are “(1) the knowing possession (2)
of a controlled substance”), with United States v. Sotelo, 97 F.3d 782, 789 (5th
Cir. 1996) (recognizing that the elements of distribution of a controlled substance
are “that the defendant (1) knowingly (2) distributed (3) the controlled
substance”). Thus, the central issue is whether one must necessarily possess a
controlled substance in order to distribute it.
       The answer is no. Our precedent demonstrates that “possession” and
“distribution,” though overlapping, are distinct concepts.5 “Possession” can be


F.3d 139, 152 (5th Cir. 1994), abrogated on other grounds by Apprendi v. New Jersey, 530 U.S.
466 (2000) (holding that “simple possession of cocaine, [in violation of] the first sentence of
section 844(a), may be a lesser included offense under a charge of possessing cocaine with
intent to distribute it [in violation of] section 841(a)(1)”); see also Finley, 477 F.3d at 256–57
(acknowledging that possession is a lesser-included offense of possession with intent to
distribute, but holding that a district court did not err in refusing to give a lesser-included
offense instruction because “[t]he additional element required for a conviction on the greater
offense . . . was not in dispute”); United States v. Lucien, 61 F.3d 366, 372–74 (5th Cir. 1995)
(holding that “under Deisch and the statutory elements test, possession of a controlled
substance (cocaine, here in the form of cocaine base) in violation of the first sentence of section
844(a) is a lesser-included offense under the superseding indictment in this case”). In Deisch,
the court emphasized that the offense denounced by the first sentence of § 844(a) includes “the
very same words” as appear in the possession with intent to distribute clause of § 841(a)(1);
naturally, then, it held that simple possession is a subset of possession with intent to
distribute and, therefore, a lesser-included offense. Deisch, 20 F.3d at 152 (emphasis added).
       5
         Ambriz makes an interesting argument that relying on our prior construction of the
statutory term “distribution,” rather than the text of the statute alone, strays from the
statutory-elements test. While his argument is well-taken, it ultimately fails. First, we apply

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either actual or constructive. See United States v. Galvan-Garcia, 872 F.2d 638,
640 (5th Cir. 1989). Constructive possession is the “ownership, dominion, or
control over . . . contraband, or . . . dominion over the premises in which the
contraband is found.” United States v. Hinojosa, 349 F.3d 200, 203 (5th Cir.
2003) (citations omitted). “Distribution,” on the other hand, includes acts “in
furtherance of transfer or sale, such as arranging or supervising the delivery.”
United States v. Suarez, 155 F.3d 521, 525 (5th Cir. 1998) (citing United States
v. Lechuga, 888 F.2d 1472, 1478 (5th Cir. 1989)).6                    We have held that
distribution “is broad enough to include acts that traditionally perhaps would
have been defined as mere aiding and abetting.” United States v. Oquendo, 505
F.2d 1307, 1310 n.1 (5th Cir. 1975). Thus, a defendant can engage in acts of
distribution without actually or constructively possessing the relevant
contraband.
       Our holding in United States v. Glenn illustrates this point. There, we
upheld a § 841(a) distribution conviction against a defendant who did not possess
the contraband at issue:
       As discussed above, the testimony of the undercover officer, Delco,


ordinary principles of construction in evaluating the statutory elements at issue, Carter, 530
U.S. at 260–61, and, therefore, look to our precedent regarding the plain meaning of the text,
United States v. Vargas-Duran, 356 F.3d 598, 602 (5th Cir. 2004). Second, the rule of
orderliness requires us to apply our precedent interpreting the statutory language at issue.
Gochicoa v. Johnson, 238 F.3d 278, 286 n.11 (5th Cir. 2000) (“When confronting decisions of
prior panels[,] we are bound by not only the result but also those portions of the opinion
necessary to that result.” (internal quotation marks and citation omitted)).
       6
          See also United States v. Olguin, 643 F.3d 384, 394 (5th Cir. 2011), cert. denied, 132
S. Ct. 432; United States v. Brown, 217 F.3d 247, 255 (5th Cir. 2000), judgment vacated sub
nom., Randle v. United States, 531 U.S. 1136 (2001); Pattern Crim. Jury Instr. 5th Cir. 2.87
(2012) (“The term distribute is broader in scope than the term sale, and means to deliver,
other than by administering or dispensing.” (citation and internal quotation marks omitted));
cf. United States v. Jackson, 526 F.2d 1236, 1238 (5th Cir. 1976) (noting that “possession is an
element in the substantive charge of either distribution or sale,” such that “conviction of sale
or distribution would necessarily imply that a defendant could also have been convicted on a
possession count,” yet concluding that the evidence was sufficient to show distribution because
the defendant assisted in arranging the criminal transaction, but insufficient to show
possession because the defendant did not help obtain or exercise control over the contraband).

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       combined with the tape recording of the March 18th sale of seven
       rocks of crack, sufficiently supports that Terry constructively
       delivered the crack through Glenn by instructing him to sell to
       Delco. Delco also testified that she paged Terry several times on
       March 22, 1991, and that she spoke with Anthony Moore and Terry
       about purchasing another $100 worth of crack. From the last
       recorded telephone call between Terry and Delco, Delco interpreted
       Terry’s statements to mean that Terry had arranged for someone to
       sell her the crack because he was very busy at the time. He then
       put someone else, Byron Rice, on the telephone to speak with her.
       Rice actually sold Delco the crack later that night and indicated to
       her that he worked for Terry. This evidence was sufficient to show
       the constructive delivery of crack by Terry through Rice, thus
       supporting Terry’s distribution conviction.
No. 93-4311, 1994 WL 24871, at *2 (5th Cir. Jan. 10, 1994) (unpublished but
persuasive).7 Similarly, this court has upheld § 841(a) distribution convictions
against physicians who have prescribed, but not actually or constructively
possessed, the controlled substance at issue. See, e.g., United States v. Rosen,
582 F.2d 1032, 1034–36 (5th Cir. 1978) (upholding a distribution conviction
against a physician who advised his patients to fill prescriptions at different
drug stores); cf. United States v. Harrison, 651 F.2d 353, 354–55 (5th Cir. 1981)
(upholding a distribution conviction against a physician who “would make up
fictitious names for prescriptions, or ask the ‘patient’ to supply him with names
to be used” at the pharmacy).
       Moreover, we recently reached the same conclusion in a different context.
In United States v. Woerner, we evaluated whether possession of child
pornography is a lesser-included offense of distribution of child pornography.
709 F.3d 527 (5th Cir. 2013). As here, the central question was whether
distribution necessarily required possession. We said no:


       7
         In Glenn, the government charged the defendant with distribution regarding some
criminal transactions and possession with intent to distribute regarding others. Id. at *1.
That the government charged the defendant with distribution, and not with a possession-
related offense, regarding the above-described transaction further reinforces the difference
between the two counts. Id.

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      A defendant need not possess child pornography to distribute it,
      [United States v. Chiaradio, 684 F.3d 265, 280 (1st Cir. 2012)] (“One
      can envision circumstances in which an individual could be guilty
      of distribution without ever obtaining possession of (or even coming
      into contact with) the contraband. For example, the broker of a deal
      between a person who has child pornography and a person who
      wishes to procure it may be guilty of distribution but not guilty of
      possession.”), and, vice versa, a defendant need not distribute child
      pornography to possess it, United States v. Goluba, 672 F.3d 304,
      307 (5th Cir. 2012) (“[T]he forensic analysis of [the defendant]’s
      computers ‘revealed that [he] did not distribute his collection of
      child pornography.’”). For that reason, we join the First and
      Seventh Circuits in holding that possession of child pornography is
      not the lesser-included offense of distribution of child
      pornography . . . .
Id. at 539 (internal citations omitted).
      For all of these reasons, we join the Sixth, Seventh, and Tenth Circuits in
concluding that simple possession of a controlled substance in violation of
§ 844(a) is not a lesser-included offense of distribution of a controlled substance
in violation of § 841(a)(1). See United States v. Colon, 268 F.3d 367, 377 (6th Cir.
2001) (“We agree with the reasoning of [other circuit] courts and now join them
in holding that simple possession is not a lesser-included offense of distribution
of a controlled substance. . . . [I]t is possible to commit the “distribution”
element of the crime without possessing the drugs themselves.”); United States
v. Barrientos, 758 F.2d 1152, 1158 (7th Cir. 1985) (“The judge in this case found
that there was insufficient evidence on which to base an instruction on
possession. This finding accords with the general understanding that possession
is not a necessary element of a distribution charge.”); United States v. Jackson,
213 F.3d 1269, 1296–97 (10th Cir. 2000), judgment vacated on other grounds,
531 U.S. 1033 (2000) (“[I]t does not follow that simple possession is a lesser
included offense of distribution under 21 U.S.C. § 841(a)(1). . . . Although it may
be unusual for a person to distribute a controlled substance without at least




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momentarily possessing the controlled substance, it is not impossible.”).8
Accordingly, the district court did not err in denying Ambriz’s request for a
lesser-included offense jury instruction.9
                                                B.
       Ambriz next challenges the district court’s admission of six baggies of
cocaine into evidence under Federal Rule of Evidence 403.10 We review alleged


       8
          The Fourth Circuit reached the same conclusion in a case that was vacated for other
reasons. See also United States v. Rideout, 80 F. App’x 836, 841 (4th Cir. 2003), judgment
vacated on other grounds, 543 U.S. 1116 (2005) (unpublished but persuasive) (“As many courts
have held, the elements of simple possession are not a subset of the elements of distribution
. . . . We agree with this analysis and hold that the district court correctly concluded that
simple possession is not a lesser included offense of distribution.”).
         Moreover, other circuits—specifically the First, Second, and Ninth—have held that the
government need not demonstrate possession to succeed on a distribution claim. See, e.g.,
United States v. Sepulveda, 102 F.3d 1313, 1317 (1st Cir. 1996) (“While ‘possession’ is certainly
helpful in proving distribution, it is technically not a necessary element . . . .”); United States
v. Gore, 154 F.3d 34, 44–45 (2d Cir. 1998) (“Someone who participates in a drug
transaction—e.g., as a broker or armed guard—can be liable for distribution without ever
possessing the drugs. . . . While ‘possession’ is certainly helpful in proving distribution, it is
technically not a necessary element.”); United States v. Armstrong, 138 F. App’x 953, 955 (9th
Cir. 2005) (unpublished but persuasive) (“The district court correctly concluded that the
offense of distribution does not include the element of possession. One can distribute a
controlled substance without being in possession of it.” (citing United States v. Davis, 564 F.2d
840, 845 (9th Cir. 1977))).
         We note that the Eighth Circuit takes the opposite approach regarding whether simple
possession is a lesser-included offense of distribution. See United States v. Klugman, 506 F.2d
1378, 1380–81 (8th Cir. 1974) (concluding that simple possession is “presumptively necessarily
included within” distribution, but affirming the district court’s denial of a lesser-included
instruction because “for the jury to convict of the lesser offense, possession, it would have to
ignore the undisputed evidence of actual distribution”). The Third Circuit may also take the
opposite approach, but this is less clear. A comment in the Third Circuit’s pattern criminal
jury instructions suggests that possession is a lesser-included offense of distribution, but the
case cited in support of the proposition addresses a different issue: whether simple possession
in violation of § 844(a) is a lesser-included offense of possession with intent to distribute in
violation of § 841(a)(1). See Third Circuit Pattern Jury Instruction 6.21.841B (citing United
States v. Lacy, 446 F.3d 448 (3d Cir. 2006)).
       9
          This holding squares with our double-jeopardy precedent. See United States v.
Costello, 483 F.2d 1366, 1368 (5th Cir. 1973).
       10
          On appeal, Ambriz also asserted that the admission of this evidence violated Federal
Rule of Evidence 404(b). At oral argument, however, Ambriz conceded that the evidence was
intrinsic to the alleged criminal conduct and, therefore, Rule 404(b) did not apply. United
States v. Freeman, 434 F.3d 369, 374 (5th Cir. 2005) (noting that evidence is intrinsic when

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                                       No. 12-50839

Rule 403 violations for clear abuses of discretion. United States v. Williams, 620
F.3d 483, 492 (5th Cir. 2010). A district court may “exclude relevant evidence
if its probative value is substantially outweighed by a danger of . . . unfair
prejudice.” Fed. R. Evid. 403. The standard of review for an alleged Rule 403
violation is “especially high and requires a clear abuse of discretion for reversal.”
Williams, 620 F.3d at 492 (internal quotation marks and citation omitted). “Any
error in admitting such evidence is subject to harmless error review, and
reversal is not required unless there is a ‘reasonable possibility that the
improperly admitted evidence contributed to the conviction.’” Id. at 492 (quoting
United States v. Mendoza-Medina, 346 F.3d 121, 127 (5th Cir. 2003)).
       In the instant case, two deputies found six baggies of cocaine on Ambriz’s
person. Both the baggies themselves and their contents were similar to those
Agent Cloutier purchased from Ambriz on that same evening. Considering that
Ambriz’s identity was at issue, any prejudice attributable to these baggies is
outweighed by their probative ability to link Ambriz to Agent Cloutier’s
purchase. Therefore, the district court did not abuse its discretion when it
admitted them into evidence.
                                             III.
       For the above-stated reasons, we AFFIRM.




it is “inextricably intertwined” with the crime charged, or “both acts are part of a single
criminal episode or the other acts were necessary preliminaries to the crime charged” and
indicating that “[i]ntrinsic evidence is generally admissible, and its admission is not subject
to rule 404(b)”).

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