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. 07-41025

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

CARLOS THOMAS FLORES

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:07-CR-619-1

Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.

PER CURIAM:*

Appellant Carlos Thomas Flores challenges the sufficiency of the evidence

supporting his conviction for conspiracy to possess cocaine with intent to

distribute, possession of cocaine with intent to distribute, and possession of a

firearm in furtherance of a drug trafficking crime. Finding no error, we AFFIRM

Flores’s conviction.

United States Court of Appeals

Fifth Circuit

F I L E D

August 10, 2009

Charles R. Fulbruge III

Clerk
No. 07-41025

2

I. Background

In October 2006, Alice Solis, an investigator with the Texas Department

of Family and Protective Services (“CPS”), received information that two

individuals were using cocaine at the home of co-conspirator Edgar Kladis in

Laredo, Texas, endangering the welfare of their children, and that the home was

being used for drug dealing. When Solis entered the home to investigate the

report, she encountered Kladis and observed marijuana, pills, and a scale.

Kladis tested positive for cocaine use. On December 18, 2006, CPS officials

obtained court approval to remove the children from that home. When Solis and

her aide arrived, they observed several vehicles driving up to the residence and

individuals entering the home for a brief time. Some drivers remained in their

automobiles as Kladis came outside, leaned through the vehicle window to

briefly interact with the occupants, and went back into the house about one

minute later. He did not get into any of the vehicles, and the autos were there

only a few minutes before driving away. Solis estimated that she saw ten

vehicles arrive while she was watching the house, and each remained about five

minutes. 

Texas Department of Public Safety Sergeant Cornelio Flores and Trooper

Abundio Medina were dispatched to the house to assist Solis in her effort to

remove the children. As the officers arrived, they saw a pickup truck containing

two occupants parked in the driveway. The truck’s motor was running, and its

dome light and headlights were on. Solis, Sergeant Flores, and Trooper Medina

walked up to the passenger’s side and Solis recognized the passenger as Edgar

Kladis. The driver, later identified as appellant Carlos Flores, was holding a

small piece of tin foil and twisted his body and hunched over the center console

where silver aluminum paper, suspected cocaine, and a black digital scale were
No. 07-41025

 Sergeant Flores testified that such a scale is consistent with cocaine distribution.

1

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in plain view. Sergeant Flores identified himself as a police officer and ordered 1

the occupants to place their hands on the dashboard. Kladis complied, but

Flores did not. Instead, he swept items from the center console with his right

hand toward the front and toward himself. Flores’s right hand then went

between his legs, as if he was reaching for a weapon. Again ordered to place his

hands on the dashboard, Flores slowly reached for the steering wheel, putting

his left hand on top. Finally, Trooper Medina opened the door and pulled Flores

from the truck, at which time the officers heard a thump in the vicinity of the

driver’s side floorboard. Sergeant Flores and Trooper Medina later found a

loaded .40 caliber firearm, with a round of ammunition in the chamber, on the

driver’s side floorboard. The firearm was operable and had been reported stolen

in Grants Pass, Oregon. 

During a search of the truck, the officers found the foil and some of the

white substance lodged between the center of the console and the driver’s seat.

There were also chunks of the same substance, which later tested positive for

cocaine, on the driver’s side floorboard. The cocaine in the front of the truck had

a net weight of 24.68 grams and an approximate value of $617. The digital scale

had cocaine residue on it and was found on the center floorboard. The lid of the

digital scale and five twenty dollar bills were still on the console, and pieces of

foil, consistent with packaging smaller quantities of cocaine for redistribution,

were inside the console. Flores later stated to the officers that the money was

his. In the back seat of the truck was a black sports bag containing a plastic

freezer bag within which was a brick of compressed cocaine with a net weight of

129 grams. The cocaine had an approximate worth of $3,225. The sports bag

also contained a plastic shopping bag with live and spent ammunition, including

.40 caliber bullets. In the truck’s bed, the officers found a saddle, a lariat rope,
No. 07-41025

4

a saddle blanket, a welder’s helmet, and welding tools. Testimony indicated that

the truck was registered to Flores’s father, that Flores had been a student in a

welding class in the fall of 2006, and that Flores had approached an individual

in 2004 to learn the basics of roping. The contents of the truck bed were later

released to Flores’s father. Another scale was recovered in a search of Kladis’s

home, but the officers found no additional drugs or weapons. 

Among other things, expert witnesses testified that the form of the cocaine

found on the console and the driver’s side floorboard was inconsistent with

personal use, and the form and quantity of the compressed brick of cocaine in the

sports bag was not consistent with sale to an end-user. The cocaine in the sports

bag had not been mixed with any adulterant, and was in a compressed form

commonly used for shipping large quantities of cocaine. An expert also testified

about the connection between firearms and narcotics trafficking; that is, that

firearms are used in furtherance of drug trafficking to protect cocaine, safeguard

an individual from other traffickers, for personal safety, and possibly for

protection from law enforcement. Flores was convicted of all three counts at

trial and subsequently sentenced to concurrent terms of twenty-seven months’

imprisonment for the narcotics offenses, consecutive to a sixty-month sentence

for the firearms violation.

On appeal, Flores contends that the evidence was insufficient to establish

his guilt for the three offenses charged. He instead urges that the circumstantial

evidence gives equal support to a theory that Flores was simply a purchaser of

cocaine from Kladis and therefore cannot be convicted of the conspiracy or

substantive distribution count. In addition, Flores argues that the evidence was

insufficient to establish that any purported possession of the firearm was in

furtherance of a drug trafficking crime. 
No. 07-41025

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II. Standard of Review

Because the appellant raised his sufficiency claims in a timely motion

under Rule 29 of Federal Rules of Criminal Procedure, this Court reviews de

novo “whether the evidence, when reviewed in the light most favorable to the

government with all reasonable inferences and credibility choices made in

support of a conviction, allows a rational fact finder to find every element of the

offense beyond a reasonable doubt.” United States v. Harris, 293 F.3d 863, 869

(5th Cir. 2002) (quoting United States v. Asibor, 109 F.3d 1023, 1030 (5th Cir.

1997)); see also United States v. Izydore, 167 F.3d 213, 219 (5th Cir. 1999). This

review is highly deferential to the verdict. Harris, 293 F.3d at 869. “The

evidence need not exclude every reasonable hypothesis of innocence or be wholly

inconsistent with every conclusion except that of guilt, and the jury is free to

choose among reasonable constructions of the evidence.” United States v.

Moreno, 185 F.3d 465, 471 (5th Cir. 1999). 

III. Analysis 

A. Narcotics Offenses

To establish a conspiracy to possess cocaine with intent to distribute, the

government must prove (1) the existence of an agreement to possess and

distribute cocaine; (2) Flores’s knowledge of that agreement; and (3) Flores’s

voluntary participation in the conspiracy. United States v. Martinez, 975 F.2d

159, 161 (5th Cir. 1992). An express agreement is not required, and each

element of the crime may be established by circumstantial evidence. United

States v. Infante, 404 F.3d 376, 385 (5th Cir. 2005). However, the mere presence

of a defendant is insufficient to support a conspiracy conviction. United States

v. Paul, 142 F.3d 836, 840 (5th Cir. 1998). Evidence of a buyer-seller

relationship cannot, alone, establish a conspiracy. United States v. Mata, 491

F.3d 237, 241 (5th Cir. 2007). 
No. 07-41025

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Possession of cocaine with intent to distribute requires proof beyond a

reasonable doubt that Flores knowingly possessed a controlled substance with

the intent to distribute it. See United States v. Patino-Prado, 533 F.3d 304, 309

(5th Cir.), cert. denied, 129 S. Ct. 328 (2008). “To be guilty of aiding and abetting

possession of drugs with intent to distribute, [the] defendant must have aided

and abetted both the possession of the drug and the intent to distribute it.”

United States v. Williams, 985 F.2d 749, 753 (5th Cir. 1993). “[T]he intent to

distribute may be inferred from the quantity and quality of the cocaine . . . and

from possession of a scale of a type commonly used in the distribution of

narcotics.” United States v. Prieto-Tejas, 779 F.2d 1098, 1103 (5th Cir. 1986). 

The evidence elicited at trial was clearly sufficient to permit a rational

trier of fact to find the essential elements of the narcotics offenses beyond a

reasonable doubt. According to the government witnesses, Flores was discovered

in the driver’s seat of a running vehicle in close proximity to almost an ounce of

cocaine, foil, scales, and cash. The truck was registered to Flores’s father and

contained items consistent with Flores’s dominion and control. Flores was

observed conducting a narcotics transaction with Kladis, and a number of

witnesses stated that they saw Flores handling a large chunk of cocaine as they

approached. The cocaine appeared to have been broken off a kilo brick of

cocaine. Kladis had previously been found in a home with scales consistent with

cocaine distribution, and Solis observed Kladis conduct approximately ten handto-hand drug transactions earlier that evening. The officers found no additional

narcotics in his home.

As the officers identified themselves, Flores attempted to conceal the drug

evidence. When the officers searched the truck, they found a sports bag

containing a brick of compressed cocaine in the back seat. The cocaine was

packaged in a manner and was in an amount consistent with distribution or

trafficking rather than personal use. It had not been mixed with any adulterant
No. 07-41025

 At trial, Flores also suggested that the evidence supported a conclusion that Kladis 2

got in the car so that Flores could give him a ride to get away from Solis. Under the facts of

this case, this conclusion is not “equally supported,” thus we need not reach the question of

whether this theory, if true, would support reversal.

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for resale. There was also a bag of ammunition in the sports bag that included

bullets of the same caliber as the firearm found near Flores. Of course, the

presence of a firearm on or near Flores is also consistent with his knowing

participation in the narcotics offenses. See, e.g., United States v. Martinez, 808

F.2d 1050, 1057 (5th Cir. 1987) (firearms are “tools of the trade” of those engaged

in illegal drug activities). 

Flores suggests that the evidence is “equally consistent” with a simple

buyer-seller relationship where he was purchasing cocaine from Kladis. He

2

argues that the prosecution impermissibly strung together inferences to reach

an improbable conclusion, citing United States v. Rojas Alvarez, 451 F.3d 320,

326 (5th Cir. 2006). However, the trial evidence does not give equal or nearly

equal support to this theory of innocence. Kladis had not entered anyone else’s

car that night despite making several sale transactions in his driveway. A

search of Kladis, the area in the truck around him, and the house where he was

staying revealed no gun to which the ammunition in the sports bag belonged nor

any additional cocaine. Further, it is not equally plausible to think Kladis would

put his entire cocaine stash in the back seat of someone else’s car out of his

reach, nor that he would choose to conduct a drug transaction in the running car

before being driven away from the home. It is also not equally plausible that

Flores, as a drug purchaser, would be armed, while Kladis, as a drug dealer

carrying a significant amount of cocaine, would be unarmed. 

The direct and circumstantial evidence presented at trial, when reviewed

in the light most favorable to the jury’s verdict, permits a rational fact finder to
No. 07-41025

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find every element of the drug offenses beyond a reasonable doubt. Accordingly,

it was sufficient to support his conviction for both narcotics crimes. 

B. Firearms Offense

To establish possession of a firearm in furtherance of a drug trafficking

offense, the government was required to show that Flores (1) knowingly

possessed a firearm; and (2) that his possession furthered, advanced, or helped

forward a drug trafficking offense. See United States v. Ceballos-Torres, 218

F.3d 409, 414-15 (5th Cir.), amended on other grounds, 226 F.3d 651 (5th Cir.

2000). This Court has explained:

Some factors that would help determine whether a particular

defendant’s possession furthers, advances, or helps forward a drug

trafficking offense might include: the type of drug activity that is

being conducted, accessibility of the firearm, the type of the weapon,

whether the weapon is stolen, the status of the possession

(legitimate or illegal), whether the gun is loaded, proximity to drugs

or drug profits, and the time and circumstances under which the

gun is found.

Id. Here, the evidence was sufficient for a rational factfinder to find every

element of the firearms offense beyond a reasonable doubt. The government

elicited testimony that Flores was engaged in a hand-to-hand drug transaction

with a firearm readily accessible. Flores appeared to be reaching for the gun

when the officers approached him, and the close proximity of the gun suggests

his intent to exercise dominion and control over it. The stolen handgun was

loaded, with a round in the chamber, and was readily available to protect the

significant amount of cocaine in Flores’s truck. Additional ammunition,

including that matching the caliber of the handgun, was found nearby. The

firearm was operable, and was not an antique or suitable for hunting. 
No. 07-41025

 An investigator testified that there were “no usable prints” on the gun. 3

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Flores points to the absence of fingerprint evidence or testimony of his 3

direct physical control over the firearm. However, possession of contraband may

be actual or constructive, and such possession may be proven with

circumstantial evidence. See, e.g., United States v. McKnight, 953 F.2d 898, 901-

02 (5th Cir. 1992). Here, a rational juror could conclude that Flores knowingly

possessed the .40 caliber handgun found on the driver’s side floorboard of his

truck, and that such possession furthered his drug trafficking crime. The

evidence, viewed in a light most favorable to the government, established that

the loaded gun was available to protect Flores during the hand-to-hand

transaction and safeguard the thousands of dollars of cocaine found in his truck.

Accordingly, the evidence was sufficient for conviction.

III. Conclusion

Because a rational juror could have found all essential elements of the

three crimes, the evidence was sufficient for Flores’s conviction. Accordingly, we

AFFIRM.