     Case: 10-51164     Document: 00511643603         Page: 1     Date Filed: 10/25/2011




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

                                                                            FILED
                                                                         October 25, 2011
                                     No. 10-51164
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JAVIER PORRAS-BURCIAGA,

                                                  Defendant-Appellant


                   Appeals from the United States District Court
                         for the Western District of Texas
                             USDC No. 3:10-CR-672-2


Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Javier Porras-Burciaga (Porras) was convicted by a jury of conspiracy to
possess with intent to distribute five or more kilograms of cocaine (count one)
and possession with intent to distribute five kilograms or more of cocaine and
aiding and abetting (count three). See 18 U.S.C. § 2; 21 U.S.C. §§ 841, 846. The
district court sentenced Porras to concurrent 188-month terms of imprisonment
and five years of non-reporting supervised release. Porras argues that the
evidence was insufficient to sustain his convictions.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                 No. 10-51164

      Because Porras moved for a judgment of acquittal at the close of the case,
he has preserved his sufficiency claim for appellate review. See United States
v. Ferguson, 211 F.3d 878, 882 (5th Cir. 2000). Accordingly, we review to
determine whether a rational jury could have found the essential elements of the
offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319
(1979); United States v. Lopez-Moreno, 420 F.3d 420, 437-38 (5th Cir. 2005). We
do “not evaluate the weight of the evidence or the credibility of the witnesses,
but view the evidence in the light most favorable to the verdict, drawing all
reasonable inferences to support the verdict.” United States v. Delgado, 256 F.3d
264, 273-74 (5th Cir. 2001). The Government may prove its case by direct or
circumstantial evidence, and the jury is free to choose among reasonable
constructions of the evidence. United States v. Mitchell, 484 F.3d 762, 768 (5th
Cir. 2007).
      Porras argues that the evidence was not sufficient to establish beyond a
reasonable doubt that he was a knowing member of the conspiracy alleged in
count one. To establish a conspiracy to distribute a controlled substance, the
Government must prove 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. Valdez, 453 F.3d 252, 256-57 (5th Cir. 2006).
While mere association with criminal conspirators is inadequate to prove an
agreement, circumstantial evidence may establish an agreement, and minor
participation may support conviction. United States v. Bieganowski, 313 F.3d
264, 277 (5th Cir. 2002).     Furthermore, “[a]s long as it is not factually
insubstantial or incredible, the uncorroborated testimony of a co-conspirator,
even one who has chosen to cooperate with the government in exchange for
non-prosecution or leniency, may be constitutionally sufficient evidence to
convict.” United States v. Westbrook, 119 F.3d 1176, 1190 (5th Cir. 1997); see
United States v. Silva, 748 F.2d 262, 266 (5th Cir. 1984). There is nothing

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                                  No. 10-51164

inherently incredible or insubstantial about the testimony of the confidential
informant linking Porras to the conspiracy. See Silva, 748 F.2d at 266. The jury
was free to choose among reasonable constructions of the evidence and
reasonably conclude that Porras knowingly and willfully participated in the
conspiracy. See Mitchell, 484 F.3d at 768.
      Porras also challenges the sufficiency of the evidence to sustain his
conviction for possession with intent to distribute cocaine on or about February
10, 2010, and aiding and abetting, arguing that the evidence was insufficient to
demonstrate that he had knowledge of the unlawful venture. To establish the
offense of possession of a controlled substance with intent to distribute, the
Government must prove beyond a reasonable doubt that Porras had
(1) knowledge, (2) possession of a controlled substance, and (3) an intention to
distribute the controlled substance. See Delgado, 256 F.3d at 274. To establish
aiding and abetting under § 2, the Government had to show that Porras
“(1) associated with a criminal venture, (2) participated in the venture, and
(3) sought by action to make the venture successful.” United States v. Ramirez-
Velasquez, 322 F.3d 868, 880 (5th Cir. 2003).
      Even if the evidence did not support a finding that Porras was in actual
possession of the cocaine ultimately received by the confidential informant on
February 4, 2010, the evidence was sufficient to support the conviction based on
constructive possession and/or aiding and abetting. The evidence supports a
finding that Porras exercised dominion or control over the cocaine supporting a
finding of constructive possession. See United States v. Brito, 136 F.3d 397, 411
(5th Cir. 1998); see also United States v. Felts, 497 F.2d 80, 82 (5th Cir. 1974).
Moreover, the jury was entitled to find that Porras associated and participated
in the criminal venture to possess with intent to distribute five kilograms or
more of cocaine and sought by his actions to make the venture successful. See
Ramirez-Velasquez, 322 F.3d at 880.



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                                 No. 10-51164

     Viewing the evidence in the light most favorable to the jury’s verdict, there
was sufficient evidence supporting Porras’s convictions on both counts. See
Jackson, 443 U.S. at 319; Lopez-Moreno, 420 F.3d at 437-38. The judgment of
the district court is AFFIRMED.




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