United States v. Bustamante , 344 F. App'x 973 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 22, 2009
No. 08-10419
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JESSIE BUSTAMANTE,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:07-CR-329-3
Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
Jessie Bustamante appeals his conviction for conspiracy to possess with
intent to distribute methamphetamine. He argues for the first time on appeal
that his guilty plea was not supported by a factual basis demonstrating an
agreement to violate the narcotics law or his knowledge of and participation in
the conspiracy. The Government has moved for summary affirmance and, in the
alternative, for an extension of time in which to file a merits brief, arguing that
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-10419
Bustamante’s appeal is frivolous. Our review is for plain error only. See United
States v. Vonn, 535 U.S. 55, 59 (2002).
While Bustamante’s mere presence at the scene of illegal activity was
alone insufficient evidence of an agreement or of his participation or knowledge,
the district court was nevertheless permitted to consider his presence or
association with the conspiracy as evidence of participation along with other
circumstantial evidence. See United States v. Fuchs, 467 F.3d 889, 908 (5th Cir.
2006). According to Bustamante’s factual stipulation, agents observed a co-
conspirator deliver a box of methamphetamine to a hotel room occupied by
Bustamante and a second co-conspirator. Shortly thereafter, agents observed
an individual enter the hotel room and leave with the box of methamphetamine.
When agents entered the hotel room, they found Bustamante lying on a bed with
a digital scale, which was located next to a night stand that stored a bag
containing a spoon and a large amount of methamphetamine. Bustamante
further admitted that the organization sold at least 309 grams of
methamphetamine.
The district court did not plainly err in inferring from these circumstances
the existence of an agreement to violate the narcotics laws or Bustamante’s
participation in and knowledge of the conspiracy. See United States v. Stephens,
571 F.3d 401, 404 (5th Cir. 2009); States v. Norman, 415 F.3d 466, 471 (5th Cir.
2005). As such, the judgment is affirmed, and the Government’s motion for
summary affirmance is granted.
AFFIRMED; MOTION FOR SUMMARY AFFIRMANCE GRANTED;
MOTION FOR EXTENSION OF TIME TO FILE BRIEF DENIED.
2