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should not be published and is not precedent except under the limited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. 09-50135

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JAMES DESHAWN HUTCHINS, also known as James Hutchins,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 7:08-CR-191-2

Before REAVLEY, DAVIS, and HAYNES, Circuit Judges.

PER CURIAM:*

James Deshawn Hutchins was convicted of aiding and abetting the

possession with intent to distribute five grams or more of cocaine base, aiding

and abetting the possession with intent to distribute cocaine, and aiding and

abetting the possession of a firearm in furtherance of a drug trafficking crime.

Hutchins argues that the evidence was insufficient to support his

convictions. “This court must affirm a conviction if the evidence, viewed in the

United States Court of Appeals

Fifth Circuit

F I L E D

October 20, 2009

Charles R. Fulbruge III

Clerk
No. 09-50135

2

light most favorable to the verdict, with all reasonable inferences and credibility

choices made in support of it, is such that a trier of fact reasonably could have

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

States v. Pando Franco, 503 F.3d 389, 393-94 (5th Cir. 2007), cert. denied, 128

S. Ct. 1874 (2008).

Anyone who “aids, abets, counsels, commands, induces or procures” the

commission of an offense “is punishable as a principal.” 18 U.S.C. § 2. To prove

aiding and abetting, the Government must prove that the elements of the

substantive offense occurred and that the defendant associated himself with the

venture, participated in the venture, and sought by his actions to make the

venture succeed. Pando Franco, 503 F.3d at 394. Hutchins does not argue that

the Government failed to prove that the elements of the substantive offenses

occurred. He argues that the evidence is insufficient to support the other

elements of aiding and abetting.

According to the evidence at trial, Hutchins was a passenger in a SUV that

was stopped around 1:15 in the morning on July 30, 2008, in Odessa, Texas. A

police officer saw Hutchins making “stuffing” or “reaching” movements toward

the passenger door compartment of the SUV, where marijuana was found. In

a pair of shorts found in the middle of the third seat of the SUV, police officers

found a bag of crack cocaine, a bag of powder cocaine, a handgun, and a

photocopy of the driver’s license of the SUV’s driver, Johnny McBride, Jr., who

was Hutchins’s cousin. Experts testified that the amounts of crack cocaine

(20.26 grams) and of powder cocaine (22.96 grams) were consistent with an

intent to distribute. McBride had on his person over $1000 in cash, broken into

$100 increments, consistent with drug trafficking. Hutchins admitted to FBI

agents that, after dark on July 29, 2008, he and McBride had stolen the drugs

and gun from the Hobbs, New Mexico, home of a person McBride knew to be a

drug dealer and then had returned to Odessa for a family function.
No. 09-50135

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This evidence was sufficient to satisfy the remaining elements of aiding

and abetting. Hutchins admitted that he and McBride broke into a known drug

dealer’s home and stole the drugs and a firearm. This established, or at least

supported a reasonable inference, that Hutchins shared the criminal intent to

possess the drugs with an intent to distribute them and to possess the firearm

in furtherance of the drug trafficking crime. It also established that Hutchins

engaged in affirmative conduct designed to make the venture succeed and sought

by his actions to make the venture succeed. See Pando Franco, 503 F.3d at 394.

Although Hutchins did not provide detailed information to the FBI agents

regarding the Hobbs home or an estimated time that he and McBride

burglarized it, that does not negate the testimony that Hutchins admitted that

he and McBride burglarized a home and stole the drugs and guns that were later

found in the SUV. The lack of Hutchins’s fingerprints on these items is of no

moment because a fingerprint expert testified that he was unable to lift any

usable latent prints from these items. Because a rational trier of fact could have

found that Hutchins aided and abetted the substantive offenses, his challenge

to the sufficiency of the evidence fails.

Hutchins also argues that the district court erred in denying him a

reduction in his offense level for his minor role in the offense under U.S.S.G.

§ 3B1.2. A minor role reduction applies only to a defendant who is substantially

less culpable than the average participant and “peripheral to the advancement

of the illicit activity.” United States v. Villanueva, 408 F.3d 193, 203-04 (5th Cir.

2005). The defendant has the burden of showing that he is entitled to the

adjustment. United States v. Garcia, 242 F.3d 593, 597 (5th Cir. 2001).

Even if McBride was the source of the information about the drug dealer’s

home, Hutchins, by his own admission, fully participated in the burglary of that

home and stole the drugs and firearm that were the subject of the aiding and

abetting charges. Thus, Hutchins’s participation was not peripheral, but was

essential, to the advancement of the illicit activity, see Villanueva, 408 F.3d at
No. 09-50135

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204, and was clearly “coextensive with the conduct for which he was held

accountable.” See Garcia, 242 F.3d at 598-99. Because Hutchins’s role in the

offense was not minor, the district court did not clearly err in denying him a role

adjustment under § 3B1.2. See Villanueva, 408 F.3d at 203 & n.9.

AFFIRMED.