     Case: 17-20067      Document: 00514213201         Page: 1    Date Filed: 10/27/2017




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

                                    No. 17-20067                                FILED
                                  Summary Calendar                        October 27, 2017
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JUAN GUTIERREZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:12-CR-261-3


Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Juan Gutierrez was convicted following a jury trial of conspiracy to
possess with the intent to distribute 500 grams or more of methamphetamine
and possession with the intent to distribute 500 grams or more of
methamphetamine, aiding and abetting.               He was sentenced to concurrent
terms of 135 months of imprisonment, to be followed by a total of five years of
supervised release. Gutierrez now appeals, challenging the sufficiency of 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 17-20067    Document: 00514213201      Page: 2   Date Filed: 10/27/2017


                                 No. 17-20067

evidence to support his convictions.       Regarding his conspiracy conviction,
Gutierrez asserts that the evidence showed his role was limited to a March 6
meeting. He argues that his mere presence at that meeting, at which the
narcotics deal was not finalized, does not show that he was part of the
conspiracy. Gutierrez also challenges the sufficiency of the evidence to support
his conviction for possession with the intent to distribute, aiding and abetting.
He contends that he did not engage in affirmative conduct designed to aid the
criminal venture and that he did not have the intent to commit the underlying
offense.
      Because Gutierrez moved for a judgment of acquittal at the close of the
Government’s case, we review de novo. See United States v. Garcia-Gonzalez,
714 F.3d 306, 313 (5th Cir. 2013). In reviewing a challenge to the sufficiency
of the evidence, we must determine whether “after viewing the evidence and
all reasonable inferences in the light most favorable to the [Government], any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” United States v. Vargas-Ocampo, 747 F.3d 299,
301 (5th Cir. 2014) (en banc) (citing Jackson v. Virginia, 443 U.S. 307, 319
(1979)) (emphasis in original). In order to prove conspiracy to possess with the
intent to distribute, the Government must establish beyond a reasonable doubt
“(1) the existence of an agreement between two or more persons to violate
narcotics laws, (2) the defendant’s knowledge of the agreement, and (3) his
voluntary participation in the conspiracy.” United States v. Patino-Prado, 533
F.3d 304, 309 (5th Cir. 2008).
      The evidence presented at trial regarding Gutierrez’s participation in the
conspiracy was not limited to his mere presence at the March 6 meeting.
Gutierrez actively participated in the negotiations of the narcotics deal at that
meeting. He provided his phone number as a contact for the transactions. His



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                                 No. 17-20067

brother-in-law testified that Gutierrez instructed him to give Gutierrez’s
phone number to the undercover officer for the purpose of arranging the initial
meeting. Phone records revealed numerous contacts between Gutierrez and
the other conspirators throughout the existence of the conspiracy. These facts
provide sufficient evidence for a jury to rationally conclude that Gutierrez
knowingly participated in the conspiracy. See Vargas-Ocampo, 747 F.3d at
301.
        To prove that a defendant aided and abetted the offense of possession
with intent to distribute methamphetamine, “the Government must prove that
the three elements of the substantive offense occurred and that the defendant
associated with the criminal venture, purposefully participated in the criminal
activity, and sought by his actions to make the venture succeed.” United States
v. Jimenez, 509 F.3d 682, 689 (5th Cir. 2007). Gutierrez does not challenge
whether the substantive offense occurred; his argument is limited to evidence
of his association and participation in the underlying criminal activity.
        The facts presented at trial show that Gutierrez participated in
orchestrating the sale of two kilograms of methamphetamine to Officer Alfonso
Alvarez.     Considering the evidence discussed above and all reasonable
inferences in the light most favorable to the Government, a reasonable jury
could rationally conclude that Gutierrez actively participated and associated
with the venture and that he possessed the requisite criminal intent. See
Jimenez, 509 F.3d at 689.
        The judgment of the district court is AFFIRMED.




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