UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 94-60144

Summary Calendar

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALFREDO HERNANDEZ-CORONADO,

Defendant-Appellant.

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 Appeal from the United States District Court

for the Southern District of Texas

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(November 25, 1994)

Before GOLDBERG, JOLLY, and JONES, Circuit Judges.

PER CURIAM:

The appellant, Alfredo Hernandez-Coronado, plead guilty to

possession with intent to distribute approximately 315 pounds

(143.1 kilograms) of marijuana. The district court sentenced

Hernandez to the mandatory minimum sentence of 60 months.

Hernandez appealed to this court, arguing that the district court

erred in considering all of the marijuana seized in connection with

his arrest when determining his sentence. We affirm.

BACKGROUND

Jesus Luna offered Hernandez $300 to carry a package of
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marijuana from Mexico to the United States. Hernandez accepted,

and the two men walked to a place where they met approximately

eleven other individuals. Each person carried a bag containing

about 30 pounds of marijuana. At Hernandez's suggestion, the group

walked by night and rested by day to avoid detection. One evening,

U.S. Border Patrol agents confronted them, and the group scattered.

The agents caught Hernandez and another individual and seized

eleven bags of marijuana weighing roughly 30 pounds apiece.

DISCUSSION

The crux of Hernandez's argument is that the district court

erred in finding that Hernandez possessed all 315 pounds of

marijuana seized for sentencing purposes. Hernandez claims that

his agreement with Luna extended only to the bundle he was charged

with carrying, and that he did not know any of the other

individuals carrying the marijuana. Therefore, Hernandez argues he

possessed only the bag of marijuana he carried and that his

sentence should reflect only that amount.

Under U.S.S.G. § 2D1.1(a)(3), the offense level of a defendant

convicted of a drug trafficking offense is determined by the

quantity of drugs involved in the offense. This quantity includes

both drugs with which the defendant was directly involved and drugs

that can be attributed to the defendant in a conspiracy as part of

his relevant conduct under U.S.S.G. § 1B1.3(a)(1)(B). This section

defines relevant conduct as "all reasonably foreseeable acts and

omissions of others in furtherance of jointly undertaken criminal

activity." U.S.S.G. § 1B1.3(a)(1)(B). See United States v. Mir,
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919 F.2d 940 (5th Cir. 1990).

The appellant relies heavily on U.S. v. Evbuomwan, 992 F.2d 70

(5th Cir. 1993). In Evbuomwan, this court held that in order for

conduct to be conspiratorial under U.S.S.G. § 1B1.3(a)(1)(B), the

act or omission to be both reasonably foreseeable and within the

scope of the defendant's agreement. Id. at 72. In that case, the

defendant's sentence had been computed by attributing all of the

funds stolen in a check fraud scheme. Although the loss

attributable to the defendant's fraud was $1,500, the district

court found the defendant to be liable for the $90,471 pilfered by

the entire check fraud scheme. The district court reasoned that

the actions of the other participants in the scheme were reasonably

foreseeable to the defendant, and therefore the entire scheme was

properly considered relevant conduct under U.S.S.G. §

1B1.3(a)(1)(B). We reversed, stating that mere foreseeability is

not a sufficient nexus to find conspiratorial conduct under

U.S.S.G. § 1B1.3(a)(1)(B). It is also necessary for the act or

omission in the conspiratorial conduct to be within the scope of

the defendant's agreement to undertake criminal activity. Id. at

74. In Evbuomwan, the record did not support a finding that the

entire loss attributable to the credit card scheme was within the

scope of the defendant's agreement with his co-conspirators.

The case at hand is distinguishable from Evbuomwan. While

Hernandez originally intended to carry only his bundle, he joined

a group of other individuals and together they transported the

marijuana. Hernandez accepted his role within the larger unit.
 

1 See also United States v. Gutierrez, 1993 U.S.App.LEXIS

26046 (5th Cir. Sept. 20 1993).

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Hernandez knew about the other criminal actors, with whom he walked

while carrying the marijuana. Hernandez relied on the others for

support and assistance, and they relied on him, as demonstrated by

Hernandez's advice to travel at night to avoid detection.

Therefore, the criminal enterprise, which included all of the

seized marijuana, was reasonably foreseeable to Hernandez and he

agreed to be a part of it. The holding in Evbuomwan affords no

shelter for Hernandez.

The facts surrounding Hernandez's criminal activity falls

squarely within the criteria for inclusion within U.S.S.G. §

1B1.3(a)(1)(B).1 In fact, one of the examples in the application

notes of that section is factually identical to the case at hand.

The example states:

"Defendants T, U, V, and W are hired by a supplier to

backpack a quantity of marihuana across the border from

Mexico into the United States. Defendants T, U, V, and

W receive their individual shipments from the supplier at

the same time and coordinate their importation efforts by

walking across the border together for mutual assistance

and protection. Each defendant is accountable for the

aggregate quantity of marihuana transported by the four

defendants. The four defendants engaged in a jointly

undertaken criminal activity, the object of which was the

importation of the four backpacks containing marihuana .

. . and aided and abetted each other's actions . . . in

carrying out the jointly undertaken criminal activity."

U.S.S.G. § 1B1.3(a)(1)(B), comment. (n.(2)(c)(8)). "[C]ommentary

in the Guidelines Manual that interprets or explains a guideline is

authoritative unless it violates the Constitution or a federal

statute, or is inconsistent with, or a plainly erroneous reading
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of, that guideline." Stinson v. United States, 113 S.Ct. 1913,

1915 (1993). The similarities between this illustration and the

facts of this case are striking.

For the above stated reasons, we AFFIRM.