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

                                                                            FILED
                                                                           June 19, 2008
                                     No. 07-50895
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee

v.

GUADALUPE GARCIA BREWSTER

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                           USDC No. 5:06-CR-315-ALL


Before JONES, Chief Judge, and CLEMENT and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Guadalupe Garcia Brewster appeals his convictions for conspiring to rob
a bank, aiding and abetting armed bank robbery, and aiding and abetting the
use of a firearm during the robbery. He contends that the evidence was
insufficient on all counts and that the indictment was constructively amended
by the court’s jury instruction on the firearm count.
       Because Brewster properly moved for acquittal, we deem the evidence
sufficient “if a rational trier of fact could have found that the evidence


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-50895

established the essential elements of the crime beyond a reasonable doubt.”
United States v. Davis, 226 F.3d 346, 354 (5th Cir. 2000). “Determining the
weight and credibility of the evidence is within the exclusive province of the
jury.” United States v. Johnson, 381 F.3d 506, 508 (5th Cir. 2004).
      The Government presented testimony from Jewell Miller Warren, Mark
Arce, and other witnesses showing that Brewster conspired with Warren and
Arce to rob a bank and that the bank was indeed robbed. Brewster sent Warren
and Arce to the bank after giving Warren a gun and telling her to use it to scare
bank employees during the robbery. Warren used the gun during the robbery.
Brewster’s claims would be valid only of we were to give no weight to the
evidence and to find the witnesses incredible. We decline to do so. See Johnson,
381 F.3d at 508.
      Brewster also contends that a jury instruction improperly broadened the
indictment by allowing the jury to convict him of aiding and abetting either
Warren’s use of a firearm or her possession of the firearm, even though the
indictment charged only use. See 18 U.S.C. § 924(c) (providing penalties for use
or possession). Because Brewster did not object to the jury instruction, this
claim is reviewed for plain error. See United States v. Daniels, 252 F.3d 411, 414
(5th Cir. 2001). If Brewster shows an error that is clear and obvious and that
affects his substantial rights, then this court may exercise discretion to correct
the forfeited error if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id. The proper inquiry on plain error review
is not whether the jury could have applied an instruction in an unconstitutional
manner, but whether there is a reasonable likelihood that it actually did so.
United States v. Phipps, 319 F.3d 177, 190 (5th Cir. 2003).
      Brewster’s indictment alleged that Warren “used” the gun and that
Brewster aided and abetted her actions. The court charged the jury that, in
order to convict Brewster, the jury had to find “that the defendant knowingly
used and carried a firearm during” the robbery. However, the court also

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explained the meaning of “possession,” including an explanation of constructive
and joint possession. The court did not expressly instruct the jury that it could
convict Brewster on a finding of possession, but Brewster argues that the
explanation of possession allowed the jury to convict him of possession without
requiring proof of use.
      We assume for purposes of this discussion that the court’s superfluous
discussion of possession was a clear error that affected Brewster’s substantial
rights. We nonetheless decline to reverse the conviction because no error
adversely affected the fairness or integrity of the proceedings. See Daniels, 252
F.3d at 414. Evidence of firearm use was uncontroverted and, by finding that
armed bank robbery was committed, the jury found that a firearm was used.
There is no plausible likelihood that the jury based its verdict on mere
possession, and the fairness, integrity or public reputation of Brewster’s trial
therefore is not implicated. See id.; United States v. Reyes, 102 F.3d 1361,
1365-66 (5th Cir. 1996); see also Phipps, 319 F.3d at 190.
      The judgment of the district court is AFFIRMED.




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