                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 October 13, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                             No. 05-40542
                           Summary Calendar


                       UNITED STATES OF AMERICA,

                          Plaintiff-Appellee,

                                versus

           JORGE ADRIAN HERNANDEZ; JIMMIE LEE THOMAS,

                        Defendants-Appellants.

                        --------------------
          Appeals from the United States District Court
                for the Southern District of Texas
                      USDC No. 5:03-CR-1941-6
                        --------------------

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Jorge Adrian Hernandez (Hernandez) and Jimmie Lee Thomas

appeal their jury convictions and sentences for conspiracy to

possess with intent to distribute marijuana and cocaine, aiding and

abetting, and possession with intent to distribute marijuana,

aiding and abetting.    We affirm.

     Challenging the sufficiency of the evidence regarding their

conspiracy convictions, Hernandez and Thomas argue that they were

charged with engaging in a multiple-object conspiracy involving

cocaine and marijuana; the evidence did not establish that the

     *
       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this opinion should not be published and is not precedent except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. 05-40542
                                        -2-

conspiracy involved cocaine; and, consequently, because the jury

was not charged in the disjunctive with respect to the conspiracy

count, its general verdict of guilty must be set aside.                          They also

argue that the evidence was insufficient to establish that they

knew or could have reasonably foreseen that the conspiracy involved

more than 1,000 kilograms of marijuana and more than 500 grams of

cocaine.

     In keeping with the elements of a 21 U.S.C. § 841(a)(1)

conspiracy       offense,   the     district        court       charged    the    jury   in

pertinent part that it had to find that two or more persons

“reached    an     agreement      to    possess      with     intent      to   distribute

controlled       substances.”          See    §    841(a)(1);      United      States    v.

Villegas-Rodriguez,         171        F.3d       224,    228     (5th     Cir.    1999).

Consequently, to find Hernandez and Thomas guilty under                                   §

841(a)(1), the jury did not have to find that the conspiracy

involved an agreement to possess with intent to distribute a

certain quantity of cocaine and marijuana, only that it involved an

agreement     to    possess     with      intent         to   distribute       controlled

substances.       Furthermore, § 841(b), a penalty provision, does not

make a defendant’s knowledge of drug type or quantity an element of

the offense; therefore, the Government was not required to prove

that the possession or distribution of cocaine by other members of

the conspiracy was reasonably foreseeable to either Hernandez or

Thomas or that either defendant had specific knowledge about the

drug quantities involved. See United States v. Gamez-Gonzalez, 319
                              No. 05-40542
                                   -3-

F.3d 695, 700 (5th Cir. 2003).          Their arguments are therefore

meritless.

     Hernandez   argues   that    the   evidence   was   insufficient   to

establish that he knowingly aided and abetted the possession of the

marijuana seized at the checkpoint on November 11, 1999, and from

his home on March 30, 2000.      He concedes that he failed to move for

a judgment of acquittal with regard to the November seizure, and

the record reveals that the ground on which he moved for a judgment

of acquittal regarding the March seizure was different from the

argument raised on appeal. Our review of these issues is therefore

“limited to determining whether . . . the record is devoid of

evidence pointing to guilt.”       United States v. Herrera, 313 F.3d

882, 885 (5th Cir. 2002) (en banc).

     The jury could reasonably have inferred from the content of

Frank Hernandez’s cellular phone call to Hernandez that Julian

Ramirez used Hernandez’s truck to transport the marijuana to Royal

Forwarding; that Hernandez had granted Ramirez unfettered access to

Royal Forwarding for the purpose of loading drugs; that Hernandez

was aware of the November 11, 1999, load prior to its seizure; and

that he sought by his actions to make the distribution venture

succeed.   See United States v. Valdez, 453 F.3d 252, 260 (5th Cir.

2006); United States v. Peters, 283 F.3d 300, 307 (5th Cir. 2002).



     We further hold that the jury could reasonably have inferred

from Officer Adan Hernandez’s testimony that Hernandez had been
                             No. 05-40542
                                  -4-

inside his home the night on which the marijuana was seized; that

he had seen the sealed boxes of marijuana in his kitchen, which

were in plain view; and that he knew the boxes contained marijuana

by virtue of the drug paraphernalia and 13 firearms found inside

his residence.   The record is therefore not devoid of evidence of

his guilt on these counts.

     Thomas argues that the evidence was insufficient to establish

that he knowingly aided and abetted the possession of the marijuana

seized from his tractor-trailer on September 10, 2000. He concedes

that he did not move for a judgment of acquittal on this count.   We

hold that the record is not devoid of evidence of his guilt because

the jury was free to discredit his self-serving protestations of

innocence and, instead, to find credible the Government witnesses

who testified, inter alia, that Thomas was a driver for Jimmie Lee

Thornton, Ramirez’s Alabama drug contact, and Thomas was present in

a motel room when Thornton paid Ramirez $20,000 for the load of

marijuana.   See United States v. Garza, 990 F.2d 171, 175 (5th Cir.

1993); see also United States v. Polk, 56 F.3d 613, 620 (5th Cir.

1995).

     Hernandez and Thomas both argue that the district court

clearly erred in denying them a U.S.S.G. § 3B1.2(b) adjustment for

their purportedly minor roles in the offense.        We uphold the

district court’s finding because the evidence did not establish

that either Hernandez or Thomas was peripheral to the advancement
                           No. 05-40542
                                -5-

of the illegal activity.   See United States v. Miranda, 248 F.3d

434, 446-47 (5th Cir. 2001).

     Hernandez further argues that the district court erred in

enhancing his base offense level pursuant to U.S.S.G.              §

2D1.1(b)(1) based on its finding that he possessed firearms in

connection with the drug trafficking offense. However, he concedes

that this argument has merit only if we hold that the evidence was

insufficient to support his conviction for aiding and abetting the

possession of the marijuana found in his home.     Because we have

held that the evidence was sufficient on that count, his sentencing

challenge, as he acknowledges, does not require further discussion.

See United States v. Vasquez, 161 F.3d 909, 912 (5th Cir. 1998).

     Hernandez additionally argues that the district court erred in

holding him responsible for over 1,000 kilograms of marijuana for

purposes of determining his base offense level.          However, he

objected to that finding on grounds different from those raised on

appeal; therefore, our review is for plain error only.    See United

States v. Cabral-Castillo, 35 F.3d 182, 188-89 (5th Cir. 1994).

Because, the quantity of drugs implicated by a crime is a factual

question, United States v. Rivera, 898 F.2d 442, 445 (5th Cir.

1990), Hernandez cannot show plain error.    See United States v.

Chung, 261 F.3d 536, 539 (5th Cir. 2001).

     Finally, Thomas has failed to brief the issues whether the

evidence was sufficient to establish that he knowingly possessed

the marijuana seized from Mines Road on August 24, 2000, and
                               No. 05-40542
                                    -6-

whether the district court clearly erred in holding him responsible

for   more    than   100   kilograms   of   marijuana   for   purposes   of

calculating his base offense level.         He has therefore waived their

review.      See United States v. Thames, 214 F.3d 608, 611 n.3 (5th

Cir. 2000).

      AFFIRMED.
