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. 07-20702

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

CARLOS LUIS GUERRA; 

HECTOR MANUEL NUNEZ

Defendants - Appellants

Appeals from the United States District Court 

for the Southern District of Texas 

USDC No. 4:06-CR-433-1

Before JOLLY, PRADO, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

A jury convicted Carlos Luis Guerra and Hector Manuel Nunez of

conspiracy to distribute more than five kilograms of cocaine under 21 U.S.C. §§

841(a)(1), 841(b)(1)(A)(ii), and 846, and aiding and abetting possession with

intent to distribute more than five kilograms of cocaine under 21 U.S.C. §§

841(a)(1) and 841(b)(1)(A)(ii) and 18 U.S.C. § 2. Guerra and Nunez appeal both

their convictions and sentences. For the reasons stated herein, we affirm.

United States Court of Appeals

Fifth Circuit

F I L E D

April 6, 2009

Charles R. Fulbruge III

Clerk
No. 07-20702

2

I.

The following facts were presented at trial.

Alfonso Alvarez, a police officer with the South Houston Police

Department, was working undercover when an informant told him that Luis

Guerra was selling large quantities of cocaine. The informant, Guadelupe

Contreras, was a convicted felon who knew Guerra. Contreras called Guerra on

Alvarez’s behalf and asked whether Guerra could secure cocaine for Alvarez.

Guerra agreed, and Contreras arranged for the three to meet at a local taqueria

on October 31, 2006, to discuss the deal. 

At the taqueria Guerra told Alvarez and Contreras that he would only sell

them the cocaine at his residence. When the three later left the taqueria,

Alvarez and Contreras followed Guerra to Hector Nunez’s home at 7310 Legacy

Pines Drive. They watched Guerra pull into the driveway and spoke with him

by cell phone to confirm the residence was the place the transaction would take

place. The next day Alvarez and Guerra spoke via phone and arranged to meet

at Nunez’s home on November 2.

On November 2, Alvarez and Guerra communicated via cell phone. That

afternoon Alvarez drove Contreras to Nunez’s home and let Contreras out to

verify the cocaine was there; Alvarez then drove off. Contreras entered the home

and Guerra showed him the cocaine. Contreras testified that Nunez, who was

standing nearby, promised him the cocaine “was good.” Contreras then called

Alvarez, who returned to pick him up. 

Alvarez immediately alerted agents who had been surveying 7310 Legacy

Pines Drive that there was cocaine in the home. One of those agents was Violet

Szeleczky-Brown. She testified that on the morning of November 2 she saw

Nunez standing in the open garage. At around noon she saw a white pickup that

was registered to Nunez pull into the driveway; Guerra was its passenger.

Guerra got out of the truck and entered the home. He then exited the home, got
No. 07-20702

 28 U.S.C. § 841:

1

 (a) Unlawful acts

Except as authorized by this subchapter, it shall be unlawful for any

person knowingly or intentionally – 

(1) to manufacture, distribute, or dispense, or possess with intent to

manufacture, distribute, or dispense, a controlled substance

3

back into the passenger side of the truck, and left. Szeleczky-Brown was still

watching when, three hours later, Guerra returned, this time as the passenger

of a white Volkswagen Jetta. When Guerra entered the home, the car drove

away. Guerra and Nunez later came outside and played basketball. SzeleczkyBrown testified that at some point Guerra took a phone call on his cell phone

and, after he hung up, he spoke to Nunez and the two began jumping in the air

and gave each other a high five. Minutes later, a navy pickup pulled into the

drive. A man later identified as Arnoldo Trevino got out of the truck and handed

a blue bag to Guerra. After Guerra and Nunez walked into the home, Trevino

drove away. Alvarez and Contreras arrived shortly thereafter, and SzeleczkyBrown watched as Contreras entered and later exited the home.

Shortly after Alvarez alerted them, agents arrived to execute search and

arrest warrants. They found the blue bag and 17 bricks of cocaine in it. They

also found pieces of paper on which what appeared to be monetary calculations

had been written. The agents seized that evidence, along with Guerra’s and

Nunez’s cell phones. They arrested Guerra and Nunez.

Fingerprints taken from both the bag and the pieces of paper were later

matched to those of Guerra. Cell phone records showed that on the day Guerra

met Alvarez and Contreras at the taqueria, Guerra called Nunez twenty-two

times.

On November 29, a grand jury indicted Guerra, Nunez, and Arnoldo

Trevino and charged them with conspiracy to distribute more than five

kilograms of cocaine under 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii), and 846, and 1 2
No. 07-20702

****

(b) Penalties

Except as otherwise provided in section 859, 860, or 861, of this title,

any person who violates subsection (a) of this section shall be sentenced

as follows:

(1)(A) In the case of violation of subsection (a) of this section involving–

 

(ii) 5 kilograms or more of a mixture or substance containing

a detectable amount of –

** **

(II) cocaine, its salts, optical and geometric isomers,

and salts of isomers;

****

such person shall be sentenced to a term of imprisonment which may not

be less than 10 years or more than life . . . .

 28 U.S.C. § 846:

2

Any person who attempts to or conspires to commit any offense defined in this

subchapter shall be subject to the same penalties as those prescribed for the

offense, the commission of which was the object of the attempt or conspiracy.

 18 U.S.C. § 2: 3

(a) Whoever commits an offense against the United States or aids, abets,

counsels, commands, induces or procures its commission, is punishable

as a principal.

(b) Whoever willfully causes an act to be done which if directly performed

by him or another would be an offense against the United States, is

punishable as a principal.

4

aiding and abetting possession with intent to distribute more than five

kilograms of cocaine under 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(ii) and 18

U.S.C. § 2. Trevino pleaded guilty to conspiracy; Guerra and Nunez tried their 3

case to a jury and were convicted of both conspiracy and aiding and abetting

possession. 

The district judge sentenced Guerra to two terms of 168 months, to be

served concurrently, and two five-year terms of supervised release, also to be

served concurrently. 
No. 07-20702

5

The district judge sentenced Nunez to two terms of 151 months each, to be

served concurrently, and two five-year terms of supervised release, also to be

served concurrently.

II.

On appeal, Guerra and Nunez challenge their convictions and sentences.

Guerra alleges the evidence was insufficient to convict him of either

conspiracy or aiding and abetting possession, and that the district court’s

sentence was unreasonable.

Nunez also alleges the evidence was insufficient to convict him of either

conspiracy or aiding and abetting possession. He also alleges that the district

court’s sentence was unreasonable, but specifically complains that the district

court used the cocaine’s net weight, as opposed to its “pure” weight, to determine

his total offense level for sentencing purposes. In addition, Nunez claims that

at his arraignment hearing the magistrate judge incorrectly summarized the

charges against him and thus his not-guilty plea was not knowing and

voluntary. Finally, Nunez claims that he was charged not with possession, but

with aiding and abetting possession, and the district court therefore erred when

it instructed the jury that Nunez had been charged with possession.

We address the sufficiency of the evidence and reasonableness of the

sentences for both Guerra and Nunez before we address Nunez’s additional

claims.

III.

Both Guerra and Nunez claim that the evidence at trial was insufficient

to convict them of either conspiracy or aiding and abetting possession. 

In evaluating the sufficiency of the evidence, we ask “whether any

reasonable trier of fact could have found that the evidence established the

essential elements of the crime beyond a reasonable doubt.” United States v.

Martinez-Lugo, 411 F.3d 597, 599 (5th Cir. 2005) (citing United States v. Ortega
No. 07-20702

6

Reyna, 148 F.3d 540, 543 (5th Cir. 1998)). We consider the evidence “in the light

most favorable to the verdict” and therefore must draw “all reasonable

inferences in support of the verdict.” Id.

We address the conspiracy conviction first. To establish conspiracy to

possess and distribute more than five kilograms of cocaine, the government had

to prove the following elements beyond a reasonable doubt: “(1) an agreement

with one other person to possess with intent to distribute at least five kilograms

of cocaine; (2) defendant’s knowledge of the agreement; and (3) defendant’s

voluntary participation in the conspiracy.” United States v. Percel, 553 F.3d 903,

910 (5th Cir. 2008). 

Guerra argues generally that there was no evidence that he entered an

agreement with Nunez and Trevino to possess and distribute cocaine. It is wellestablished, however, that “the jury can infer the existence of an agreement from

circumstantial evidence.” Id. (citing United States v. Chavez, 947 F.2d 742, 745

(5th Cir. 1991)). At trial, there was more than adequate circumstantial evidence

from which a jury could infer the existence of an agreement between Guerra and

Nunez. Testimony and cell phone records showed that on October 31, 2006, the

day Guerra first agreed to sell cocaine to Alvarez and Contreras, Guerra called

Nunez twenty-two times. Agent Szeleczky-Brown testified that while surveying

Nunez’s home on November 2, she saw Guerra come and go, and also saw

Guerra take a phone call and apparently celebrate its news by jumping up and

down with Nunez and giving him a high five. Minutes later, she saw Trevino

arrive with a blue bag that was later found to contain seventeen bricks of

cocaine. Contreras testified that when he arrived, Guerra showed him the bag

of cocaine and Nunez vouched for its quality. From this evidence the jury could

easily infer that Guerra had entered an agreement with Nunez, if not also with

Trevino. Guerra fails to show that the evidence was insufficient to convict him

of conspiracy.
No. 07-20702

7

Nunez argues that the evidence showed only that he was present, and not

that he was a co-conspirator. He points out that agents did not recover his

fingerprints from either the blue bag or the pieces of paper on which what

appeared to be monetary calculations had been written, and claims the pieces

of paper could not otherwise prove his participation in the conspiracy. Nunez

neglects, however, to mention that there was testimony that the calculated

figures on the pieces of paper represented the profit that would be made from the

sale and how it would be split between Guerra and Nunez. He also neglects to

mention that there was testimony that Guerra called Nunez twenty-two times

on October 31, that on November 2 Nunez and Guerra celebrated in Nunez’s

driveway only minutes before Trevino delivered the cocaine, and that Nunez told

Contreras the cocaine “was good.” And although as a fact it is not sufficient in

and of itself, it bears noting that all of these events transpired at Nunez’s house.

Knowledge of and voluntary participation in a conspiracy “may be inferred from

a ‘collection of circumstances.’” United States v. Fuchs, 467 F.3d 889, 908 (5th

Cir. 2006) (citations omitted). The “collection of circumstances” here was

sufficient to infer Nunez’s knowledge and voluntary participation and was

therefore sufficient to convict Nunez of conspiracy.

The evidence was also sufficient to convict both Guerra and Nunez of

aiding and abetting possession. To prove the crime of aiding and abetting, the

government had to establish that Guerra and Nunez: “(1) associated with the

criminal venture; (2) purposefully participated in the crime; and (3) sought by

[their] actions for it to succeed.” United States v. Pando Franco, 503 F.3d 389,

394 (5th Cir. 2007), cert. denied, — U.S. —, 128 S.Ct. 1874 (2008). We have held

that evidence supporting a conspiracy conviction typically supports an aiding

and abetting conviction. See, e.g., United States v. Rodriguez, 553 F.3d 380, 391

(5th Cir. 2008) (quoting United States v. Singh, 922 F.2d 1169, 1173 (5th Cir.

1991)). We conclude the evidence supporting Guerra’s and Nunez’s convictions
No. 07-20702

8

of conspiracy equally supports their convictions of aiding and abetting

possession. 

IV.

 Both Guerra and Nunez challenge their sentences as unreasonable. In

our review to determine whether a sentence is reasonable, we ask whether the

district court abused its discretion. See, e.g., United States v. Herrera-Garduno,

519 F.3d 526, 529 (5th Cir. 2008). Our review is bifurcated: We “‘first ensure

that the district court committed no significant procedural error’” and “‘then

consider the substantive reasonableness of the sentence imposed.’” Id. (quoting

Gall v. United States, 552 U.S. — , 128 S.Ct. 586, 597 (2007)). Both Guerra and

Nunez allege procedural errors. See, e.g., United States v. Rodriguez, 523 F.3d

519, 525 (5th Cir. 2008) (sentencing court procedurally errs when, for instance,

it fails to properly calculate the offense level and sentencing range, fails to

consider sentencing factors as listed in 18 U.S.C. § 3553(a), treats sentencing

guidelines as mandatory, or accepts as a basis for sentence clearly erroneous

facts) (citing Gall, 552 U.S. — , 128 S.Ct. at 597)). 

Guerra claims the district court treated the sentencing guidelines as

mandatory. Guerra, however, offers no support for this claim, and the record

plainly refutes it. At Guerra’s sentencing hearing the district court told Guerra

that it had considered the sentencing guidelines and concluded that a sentence

under the guidelines would be consistent with, and take into account, the factors

listed in 18 U.S.C. § 3553(a). Guerra does not show the district court

procedurally erred by treating the sentencing guidelines as mandatory.

Nunez claims the district court improperly used the cocaine’s net weight,

as opposed to its “pure” weight, to determine his total offense level for sentencing

purposes. He argues the court should have calculated the weight of the cocaine

for sentencing purposes by multiplying the cocaine’s net weight, 17.01 kilograms,

by its purity, 80 percent. If the court had thus calculated the cocaine’s weight,
No. 07-20702

9

Nunez would have been liable for only 13.6 kilograms of cocaine, and would have

qualified for a base offense level of 32, for which the sentencing range is 121 to

151 months. Instead, the court accepted for sentencing purposes the cocaine’s

net weight, 17.01 kilograms, which assigned to Nunez a base offense level of 34,

for which the sentencing range is 151 to 188 months. 

We find no error in the court’s use of the cocaine’s net weight to determine

Nunez’s base offense level. Under the sentencing guidelines, a court determines

a defendant’s base offense level in drug cases by reference to a drug quantity

table. The table lists controlled substances and assigns base offense levels by

their weights. The notes that accompany the table explain:

Unless otherwise specified, the weight of a controlled

substance set forth in the table refers to the entire weight

of any mixture or substance containing a detectable

amount of the controlled substance. If a mixture or

substance contains more than one controlled substance,

the weight of the entire mixture or substance is

assigned to the controlled substance that results in the

greater offense level.

U.S.S.G. § 2D1.1(c) n.(A) (2006) (emphasis added).

For some controlled substances, for instance, PCP and methamphetamine,

the table designates weight “actual.” That designation refers to “the weight of

the controlled substance, itself, contained in the mixture or substance.” Id. at

n.(B). The table does not, however, designate the weight of cocaine “actual.” The

weight of cocaine for sentencing purposes is instead “the entire weight of any

mixture or substance containing a detectable amount of [cocaine].” Id. at n.(A).

The district court properly accepted for sentencing purposes the cocaine’s net

weight, 17.01 kilograms. Nunez fails to establish procedural error.

Neither Guerra nor Nunez challenge the substantive reasonableness of

their sentences. We note, however, that having found no procedural error, we

also find no substantive error. Guerra’s and Nunez’s sentences both fall within
No. 07-20702

10

the properly-calculated guidelines range and are, therefore, presumptively

reasonable. See United States v. Gomez-Herrera, 523 F.3d 554, 558 (5th Cir.

2008) (citing Rita v. United States, 551 U.S. — , 127 S.Ct. 2456, 2462 (2007)).

There was no abuse of discretion.

V.

Nunez also claims that at his arraignment hearing the magistrate judge

incorrectly summarized the charges against him and therefore his not-guilty

plea was not knowing and voluntary. We find no error in the magistrate judge’s

delivery of the charges at Nunez’s arraignment.

A defendant has a right to know the charges against him and to have

adequate information from which to prepare his defense. See, e.g., United States

v. Correa-Ventura, 6 F.3d 1070, 1073 (5th Cir. 1993) (citing United States v.

Rogers, 469 F.2d 1317, 1318 (5th Cir. 1972)). An arraignment protects those

rights. See FED. R. CRIM. P. 10 (defendant shall be informed of “the substance

of the charge” and called on to plead thereto). A conviction will not be vacated,

however, for lack of formal arraignment proceedings, absent possible prejudice.

Correa-Ventura, 6 F.3d at 1073.

The indictment in this case charged Guerra, Nunez, and Trevino with two

counts, one for conspiracy and the other for possession. At the arraignment, the

magistrate judge confirmed that the defendants’ attorneys had “discussed the

accusations in the indictment with [their] clients.” The magistrate judge asked

the defendants whether they had discussed the charges with their attorneys;

they answered “yes.” We have held that where a judge confirms that defense

counsel has informed a defendant of the charges against him, no prejudice

results from the failure of the judge to personally inform the defendant of those

charges. United States v. Grote, 632 F.2d 387, 389 (5th Cir. 1980) (“We do not

believe that any prejudice has resulted from the failure of the trial judge

personally to inform the defendant of the charges against him. The trial judge
No. 07-20702

4

COUNT TWO

Possession with the Intent to Distribute (Cocaine)

On or about 2 November 2006 . . . defendants herein,

aiding, assisting, and abetting each other and others, known and

unknown to the Grand Jury, did unlawfully, knowingly, and

intentionally possess with the intent to distribute a controlled

substance. This violation involved 5 kilograms or more of a

mixture and substance containing a detectable amount of cocaine,

a Schedule II controlled substance.

In violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(ii)

and 18 U.S.C. § 2.

11

assigned that responsibility to appointed counsel, and he satisfied himself that

that responsibility had been discharged before calling upon the defendant to

plead.”).

Nevertheless, in addition to confirming that the defendants’ attorneys had

discussed the charges with their clients, the magistrate judge also summarized

both counts for the defendants:

Each of you are accused in Count One of the indictment

that alleges that you conspired or made an agreement

to possess with intent to distribute cocaine, five

kilograms or more, on or about October 31st, 2006, and

continuing through November the 2nd of 2006. That is

Count One of the indictment. Count Two alleges that

you each possessed with intent to distribute cocaine,

five or more kilograms of cocaine.

Nunez claims that the magistrate judge incorrectly told them that count

two charged them with possession, and complains that the magistrate judge did

not tell them that they had been charged with aiding and abetting possession.

These alleged errors are without merit. The magistrate judge correctly

summarized count two of the indictment, which plainly titled itself “Possession

with the Intent to Distribute (Cocaine)” and plainly charged the defendants with

possession under 21 U.S.C. §§ 841(a)(1) & 841(b)(1)(A)(ii). That count two also 4

charged the defendant with aiding and abetting possession under 18 U.S.C. § 2
No. 07-20702

12

does not render the magistrate judge’s summary of count two inadequate, where

the magistrate judge very correctly conveyed to the defendants “the substance

of the charge.” There was no error in the defendants’ arraignment proceedings.

VI.

Finally, Nunez claims that he was charged not with possession, but with

aiding and abetting possession, and that the district court therefore erred when

it instructed the jury that Nunez had been charged with possession. This issue

is without merit. As previously stated, the indictment very plainly charged

Nunez with possession with intent to distribute cocaine. 

Moreover, we note that in its preliminary instructions to the jury, the

district court recited the elements of conspiracy, possession, and aiding and

abetting possession. In its jury charge prior to deliberations, the district court

carefully explained the elements of conspiracy, possession, and aiding and

abetting possession. The instructions were consistent with the charges in counts

one and two of the indictment. The judgment indicates that Nunez was

convicted of conspiracy and aiding and abetting possession with intent to

distribute. Contrary to his assertion otherwise, Nunez was not convicted of an

unindicted crime.

VII.

For the foregoing reasons, the convictions and sentences are

AFFIRMED.