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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
______________
No. 94-60144
Summary Calendar
______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALFREDO HERNANDEZ-CORONADO,
Defendant-Appellant.
______________
Appeal from the United States District Court
for the Southern District of Texas
______________
(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

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,
2

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.
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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
1 See also United States v. Gutierrez, 1993 U.S.App.LEXIS
26046 (5th Cir. Sept. 20 1993).
4

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.
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