Filed: Oct. 13, 2006
Latest Update: Feb. 21, 2020
Summary: 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 Her
Summary: 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 Hern..
More
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this opinion should not be published and is not precedent except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.
