IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-51003 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MIGUEL RIVERA-GUZMAN,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. P-01-CR-101-4-F -------------------- January 28, 2003

Before JOLLY, JONES and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Miguel Rivera-Guzman appeals his conviction and sentence for

aiding and abetting the possession of marijuana with the intent

to distribute. He argues that the evidence was insufficient to

support his conviction; that the district court plainly erred in

instructing the jury; and that the district court clearly erred

in refusing to apply a minimal role adjustment in his offense

level pursuant to U.S.S.G. § 3B1.2.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 01-51003 -2-

We hold that the jury was free to find from the testimony of

Sergeants Wood and Cordero that Rivera engaged in affirmative

conduct designed to aid the venture by directing them to the

location of the drug transaction, thus aiding and abetting

possession with the intent to distribute. See United States v.

Mendoza,

(5th Cir. 2000); United States v.

Garcia,

(5th Cir. 2001). Rivera’s allegation

that he was coincidentally on the road directing traffic is

discredited by the testimony that the road was isolated, was

devoid of other activity, and was accessed only after passing

through a closed gate. The jury’s finding that Rivera aided and

abetted the possession of the marijuana was therefore a

reasonable construction of the evidence.

We further hold that Rivera has not established that the

jury instructions constituted plain error; although the

instructions mislabeled the count charged as “Count One,” the

substance of the count remained unchanged, and, therefore,

Rivera’s substantial rights were unaffected. See United States

v. Vasquez,

(5th Cir. 2000). We additionally

hold that district court’s refusal to award a U.S.S.G. § 3B1.2

adjustment for Rivera’s self-described minimal role in the

offense was not clear error. See United States v. Virgen-Moreno,

(5th Cir. 2001), cert. denied,

(2002).

AFFIRMED.