United States v. Rivera-Guzman

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-51003
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MIGUEL RIVERA-GUZMAN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. P-01-CR-101-4-F
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January 28, 2003
Before JOLLY, JONES and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Miguel Rivera-Guzman appeals his conviction and sentence for
aiding and abetting the possession of marijuana with the intent
to distribute. He argues that the evidence was insufficient to
support his conviction; that the district court plainly erred in
instructing the jury; and that the district court clearly erred
in refusing to apply a minimal role adjustment in his offense
level pursuant to U.S.S.G. § 3B1.2.

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No. 01-51003
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We hold that the jury was free to find from the testimony of
Sergeants Wood and Cordero that Rivera engaged in affirmative
conduct designed to aid the venture by directing them to the
location of the drug transaction, thus aiding and abetting
possession with the intent to distribute. See United States v.
Mendoza, 226 F.3d 340, 343 (5th Cir. 2000); United States v.
Garcia, 242 F.3d 593, 596 (5th Cir. 2001). Rivera’s allegation
that he was coincidentally on the road directing traffic is
discredited by the testimony that the road was isolated, was
devoid of other activity, and was accessed only after passing
through a closed gate. The jury’s finding that Rivera aided and
abetted the possession of the marijuana was therefore a
reasonable construction of the evidence.
We further hold that Rivera has not established that the
jury instructions constituted plain error; although the
instructions mislabeled the count charged as “Count One,” the
substance of the count remained unchanged, and, therefore,
Rivera’s substantial rights were unaffected. See United States
v. Vasquez, 216 F.3d 456, 459 (5th Cir. 2000). We additionally
hold that district court’s refusal to award a U.S.S.G. § 3B1.2
adjustment for Rivera’s self-described minimal role in the
offense was not clear error. See United States v. Virgen-Moreno,
265 F.3d 276, 296 (5th Cir. 2001), cert. denied, 122 S. Ct. 1452
(2002).
AFFIRMED.

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