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

                                                 FILED
                                                                           August 10, 2009

                                     No. 07-41025                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee
v.

CARLOS THOMAS FLORES

                                                   Defendant-Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:07-CR-619-1


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
       Appellant Carlos Thomas Flores challenges the sufficiency of the evidence
supporting his conviction for conspiracy to possess cocaine with intent to
distribute, possession of cocaine with intent to distribute, and possession of a
firearm in furtherance of a drug trafficking crime. Finding no error, we AFFIRM
Flores’s conviction.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                 No. 07-41025

                        I.    Background
      In October 2006, Alice Solis, an investigator with the Texas Department
of Family and Protective Services (“CPS”), received information that two
individuals were using cocaine at the home of co-conspirator Edgar Kladis in
Laredo, Texas, endangering the welfare of their children, and that the home was
being used for drug dealing. When Solis entered the home to investigate the
report, she encountered Kladis and observed marijuana, pills, and a scale.
Kladis tested positive for cocaine use. On December 18, 2006, CPS officials
obtained court approval to remove the children from that home. When Solis and
her aide arrived, they observed several vehicles driving up to the residence and
individuals entering the home for a brief time. Some drivers remained in their
automobiles as Kladis came outside, leaned through the vehicle window to
briefly interact with the occupants, and went back into the house about one
minute later. He did not get into any of the vehicles, and the autos were there
only a few minutes before driving away. Solis estimated that she saw ten
vehicles arrive while she was watching the house, and each remained about five
minutes.
      Texas Department of Public Safety Sergeant Cornelio Flores and Trooper
Abundio Medina were dispatched to the house to assist Solis in her effort to
remove the children. As the officers arrived, they saw a pickup truck containing
two occupants parked in the driveway. The truck’s motor was running, and its
dome light and headlights were on. Solis, Sergeant Flores, and Trooper Medina
walked up to the passenger’s side and Solis recognized the passenger as Edgar
Kladis. The driver, later identified as appellant Carlos Flores, was holding a
small piece of tin foil and twisted his body and hunched over the center console
where silver aluminum paper, suspected cocaine, and a black digital scale were




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                                        No. 07-41025

in plain view.1 Sergeant Flores identified himself as a police officer and ordered
the occupants to place their hands on the dashboard. Kladis complied, but
Flores did not. Instead, he swept items from the center console with his right
hand toward the front and toward himself.                 Flores’s right hand then went
between his legs, as if he was reaching for a weapon. Again ordered to place his
hands on the dashboard, Flores slowly reached for the steering wheel, putting
his left hand on top. Finally, Trooper Medina opened the door and pulled Flores
from the truck, at which time the officers heard a thump in the vicinity of the
driver’s side floorboard. Sergeant Flores and Trooper Medina later found a
loaded .40 caliber firearm, with a round of ammunition in the chamber, on the
driver’s side floorboard. The firearm was operable and had been reported stolen
in Grants Pass, Oregon.
      During a search of the truck, the officers found the foil and some of the
white substance lodged between the center of the console and the driver’s seat.
There were also chunks of the same substance, which later tested positive for
cocaine, on the driver’s side floorboard. The cocaine in the front of the truck had
a net weight of 24.68 grams and an approximate value of $617. The digital scale
had cocaine residue on it and was found on the center floorboard. The lid of the
digital scale and five twenty dollar bills were still on the console, and pieces of
foil, consistent with packaging smaller quantities of cocaine for redistribution,
were inside the console. Flores later stated to the officers that the money was
his. In the back seat of the truck was a black sports bag containing a plastic
freezer bag within which was a brick of compressed cocaine with a net weight of
129 grams. The cocaine had an approximate worth of $3,225. The sports bag
also contained a plastic shopping bag with live and spent ammunition, including
.40 caliber bullets. In the truck’s bed, the officers found a saddle, a lariat rope,



      1
          Sergeant Flores testified that such a scale is consistent with cocaine distribution.

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a saddle blanket, a welder’s helmet, and welding tools. Testimony indicated that
the truck was registered to Flores’s father, that Flores had been a student in a
welding class in the fall of 2006, and that Flores had approached an individual
in 2004 to learn the basics of roping. The contents of the truck bed were later
released to Flores’s father. Another scale was recovered in a search of Kladis’s
home, but the officers found no additional drugs or weapons.
      Among other things, expert witnesses testified that the form of the cocaine
found on the console and the driver’s side floorboard was inconsistent with
personal use, and the form and quantity of the compressed brick of cocaine in the
sports bag was not consistent with sale to an end-user. The cocaine in the sports
bag had not been mixed with any adulterant, and was in a compressed form
commonly used for shipping large quantities of cocaine. An expert also testified
about the connection between firearms and narcotics trafficking; that is, that
firearms are used in furtherance of drug trafficking to protect cocaine, safeguard
an individual from other traffickers, for personal safety, and possibly for
protection from law enforcement. Flores was convicted of all three counts at
trial and subsequently sentenced to concurrent terms of twenty-seven months’
imprisonment for the narcotics offenses, consecutive to a sixty-month sentence
for the firearms violation.
      On appeal, Flores contends that the evidence was insufficient to establish
his guilt for the three offenses charged. He instead urges that the circumstantial
evidence gives equal support to a theory that Flores was simply a purchaser of
cocaine from Kladis and therefore cannot be convicted of the conspiracy or
substantive distribution count. In addition, Flores argues that the evidence was
insufficient to establish that any purported possession of the firearm was in
furtherance of a drug trafficking crime.




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                                    No. 07-41025

                         II.      Standard of Review
      Because the appellant raised his sufficiency claims in a timely motion
under Rule 29 of Federal Rules of Criminal Procedure, this Court reviews de
novo “whether the evidence, when reviewed in the light most favorable to the
government with all reasonable inferences and credibility choices made in
support of a conviction, allows a rational fact finder to find every element of the
offense beyond a reasonable doubt.” United States v. Harris, 293 F.3d 863, 869
(5th Cir. 2002) (quoting United States v. Asibor, 109 F.3d 1023, 1030 (5th Cir.
1997)); see also United States v. Izydore, 167 F.3d 213, 219 (5th Cir. 1999). This
review is highly deferential to the verdict. Harris, 293 F.3d at 869. “The
evidence need not exclude every reasonable hypothesis of innocence or be wholly
inconsistent with every conclusion except that of guilt, and the jury is free to
choose among reasonable constructions of the evidence.”          United States v.
Moreno, 185 F.3d 465, 471 (5th Cir. 1999).
                         III.     Analysis
      A.    Narcotics Offenses
      To establish a conspiracy to possess cocaine with intent to distribute, the
government must prove (1) the existence of an agreement to possess and
distribute cocaine; (2) Flores’s knowledge of that agreement; and (3) Flores’s
voluntary participation in the conspiracy. United States v. Martinez, 975 F.2d
159, 161 (5th Cir. 1992).       An express agreement is not required, and each
element of the crime may be established by circumstantial evidence. United
States v. Infante, 404 F.3d 376, 385 (5th Cir. 2005). However, the mere presence
of a defendant is insufficient to support a conspiracy conviction. United States
v. Paul, 142 F.3d 836, 840 (5th Cir. 1998).            Evidence of a buyer-seller
relationship cannot, alone, establish a conspiracy. United States v. Mata, 491
F.3d 237, 241 (5th Cir. 2007).



                                         5
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      Possession of cocaine with intent to distribute requires proof beyond a
reasonable doubt that Flores knowingly possessed a controlled substance with
the intent to distribute it. See United States v. Patino-Prado, 533 F.3d 304, 309
(5th Cir.), cert. denied, 129 S. Ct. 328 (2008). “To be guilty of aiding and abetting
possession of drugs with intent to distribute, [the] defendant must have aided
and abetted both the possession of the drug and the intent to distribute it.”
United States v. Williams, 985 F.2d 749, 753 (5th Cir. 1993). “[T]he intent to
distribute may be inferred from the quantity and quality of the cocaine . . . and
from possession of a scale of a type commonly used in the distribution of
narcotics.” United States v. Prieto-Tejas, 779 F.2d 1098, 1103 (5th Cir. 1986).
      The evidence elicited at trial was clearly sufficient to permit a rational
trier of fact to find the essential elements of the narcotics offenses beyond a
reasonable doubt. According to the government witnesses, Flores was discovered
in the driver’s seat of a running vehicle in close proximity to almost an ounce of
cocaine, foil, scales, and cash. The truck was registered to Flores’s father and
contained items consistent with Flores’s dominion and control. Flores was
observed conducting a narcotics transaction with Kladis, and a number of
witnesses stated that they saw Flores handling a large chunk of cocaine as they
approached. The cocaine appeared to have been broken off a kilo brick of
cocaine. Kladis had previously been found in a home with scales consistent with
cocaine distribution, and Solis observed Kladis conduct approximately ten hand-
to-hand drug transactions earlier that evening. The officers found no additional
narcotics in his home.
      As the officers identified themselves, Flores attempted to conceal the drug
evidence.   When the officers searched the truck, they found a sports bag
containing a brick of compressed cocaine in the back seat. The cocaine was
packaged in a manner and was in an amount consistent with distribution or
trafficking rather than personal use. It had not been mixed with any adulterant

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                                       No. 07-41025

for resale. There was also a bag of ammunition in the sports bag that included
bullets of the same caliber as the firearm found near Flores. Of course, the
presence of a firearm on or near Flores is also consistent with his knowing
participation in the narcotics offenses. See, e.g., United States v. Martinez, 808
F.2d 1050, 1057 (5th Cir. 1987) (firearms are “tools of the trade” of those engaged
in illegal drug activities).
       Flores suggests that the evidence is “equally consistent” with a simple
buyer-seller relationship where he was purchasing cocaine from Kladis.2 He
argues that the prosecution impermissibly strung together inferences to reach
an improbable conclusion, citing United States v. Rojas Alvarez, 451 F.3d 320,
326 (5th Cir. 2006). However, the trial evidence does not give equal or nearly
equal support to this theory of innocence. Kladis had not entered anyone else’s
car that night despite making several sale transactions in his driveway. A
search of Kladis, the area in the truck around him, and the house where he was
staying revealed no gun to which the ammunition in the sports bag belonged nor
any additional cocaine. Further, it is not equally plausible to think Kladis would
put his entire cocaine stash in the back seat of someone else’s car out of his
reach, nor that he would choose to conduct a drug transaction in the running car
before being driven away from the home. It is also not equally plausible that
Flores, as a drug purchaser, would be armed, while Kladis, as a drug dealer
carrying a significant amount of cocaine, would be unarmed.
       The direct and circumstantial evidence presented at trial, when reviewed
in the light most favorable to the jury’s verdict, permits a rational fact finder to




       2
         At trial, Flores also suggested that the evidence supported a conclusion that Kladis
got in the car so that Flores could give him a ride to get away from Solis. Under the facts of
this case, this conclusion is not “equally supported,” thus we need not reach the question of
whether this theory, if true, would support reversal.

                                              7
                                  No. 07-41025

find every element of the drug offenses beyond a reasonable doubt. Accordingly,
it was sufficient to support his conviction for both narcotics crimes.
      B.    Firearms Offense
      To establish possession of a firearm in furtherance of a drug trafficking
offense, the government was required to show that Flores (1) knowingly
possessed a firearm; and (2) that his possession furthered, advanced, or helped
forward a drug trafficking offense. See United States v. Ceballos-Torres, 218
F.3d 409, 414-15 (5th Cir.), amended on other grounds, 226 F.3d 651 (5th Cir.
2000). This Court has explained:
      Some factors that would help determine whether a particular
      defendant’s possession furthers, advances, or helps forward a drug
      trafficking offense might include: the type of drug activity that is
      being conducted, accessibility of the firearm, the type of the weapon,
      whether the weapon is stolen, the status of the possession
      (legitimate or illegal), whether the gun is loaded, proximity to drugs
      or drug profits, and the time and circumstances under which the
      gun is found.

Id. Here, the evidence was sufficient for a rational factfinder to find every
element of the firearms offense beyond a reasonable doubt. The government
elicited testimony that Flores was engaged in a hand-to-hand drug transaction
with a firearm readily accessible. Flores appeared to be reaching for the gun
when the officers approached him, and the close proximity of the gun suggests
his intent to exercise dominion and control over it. The stolen handgun was
loaded, with a round in the chamber, and was readily available to protect the
significant amount of cocaine in Flores’s truck.        Additional ammunition,
including that matching the caliber of the handgun, was found nearby. The
firearm was operable, and was not an antique or suitable for hunting.




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                                       No. 07-41025

      Flores points to the absence of fingerprint evidence 3 or testimony of his
direct physical control over the firearm. However, possession of contraband may
be actual or constructive, and such possession may be proven with
circumstantial evidence. See, e.g., United States v. McKnight, 953 F.2d 898, 901-
02 (5th Cir. 1992). Here, a rational juror could conclude that Flores knowingly
possessed the .40 caliber handgun found on the driver’s side floorboard of his
truck, and that such possession furthered his drug trafficking crime.                The
evidence, viewed in a light most favorable to the government, established that
the loaded gun was available to protect Flores during the hand-to-hand
transaction and safeguard the thousands of dollars of cocaine found in his truck.
Accordingly, the evidence was sufficient for conviction.
                             III.   Conclusion
      Because a rational juror could have found all essential elements of the
three crimes, the evidence was sufficient for Flores’s conviction. Accordingly, we
AFFIRM.




      3
          An investigator testified that there were “no usable prints” on the gun.

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