United States v. Cisneros

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 95-40711
__________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN GABRIEL CISNEROS, JAVIER ROJAS CISNEROS,
and IVO PEREZ, JR.,

Defendants-Appellants.

______________________________________________

Appeals from the United States District Court for the
Southern District of Texas
______________________________________________
May 13, 1997

Before REAVLEY, GARWOOD, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

This direct criminal appeal involves three appellants who were

convicted of various drug offenses. In regard to their

convictions, the arguments on appeal include: a Speedy Trial Act

violation; a challenge to the district court's denial of their

motion for new trial; a challenge to the sufficiency of the

evidence; and a violation of the Fourth Amendment. In regard to

sentencing, the issues include one of first impression, namely,

whether a deferred adjudication in Texas constitutes a "prior

conviction" in the context of 21 U.S.C. § 841(b)(1)(A), a mandatory

sentence enhancement provision. Finding no reversible error, we
affirm.

I. PROCEDURAL HISTORY

On April 4, 1995, Ivo Perez, Jr. (Perez), Juan Gabriel

Cisneros (Juan), and Javier Rojas Cisneros (Javier) were charged,1

along with ten other codefendants, with various drug trafficking

offenses in a superseding twenty-count indictment. The following

six counts all alleged violations of 21 U.S.C. § 841(a)(1), §

841(b)(1)(B) and 18 U.S.C. § 2. Count 10 charged Perez with

possession with intent to distribute in excess of 100 kilograms of

marijuana on March 7, 1992. Count 11 charged Perez with possession

with intent to distribute in excess of 1000 kilograms of marijuana

on March 24, 1992. Count 12 charged Perez with possession with

intent to distribute in excess of 100 kilograms of marijuana in

August 1992. Counts 13 and 14 charged Juan and Javier with

possession with intent to distribute in excess of 100 kilograms of

marijuana in May 1994. Count 19 charged Juan and Javier with

possession with intent to distribute in excess of 100 kilograms of

marijuana on June 7, 1994.

Count 17 charged that, from 1986 until the return of the

indictment in April 1995, Perez, Juan, and Javier conspired to

possess with intent to distribute in excess of 1000 kilograms of

marijuana in violation of 21 U.S.C. § 841(a)(1), § 841(b)(1)(A),

and § 846. Finally, count 20 charged Juan and Javier with money

laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i) and (B)(i).

On May 9, 1995, the district court, determining that there was

1
Juan and Javier Cisneros are brothers.

2
a possible conflict of interest between the Cisneroses and Perez,

ordered their common counsel disqualified from representing Perez.

Perez then retained new counsel. On May 25, Javier moved to

suppress evidence seized from a search of his residence, and

Perez's new attorney moved for a continuance. Both motions were

denied, and a jury trial commenced on June 2, 1995. The jury found

the defendants guilty as charged.

The defendants moved for a new trial based upon the discovery

of a "new witness." The district court, after holding an

evidentiary hearing, denied the motion, and sentenced the

defendants as follows: (Juan) 360 months on each of the possession

counts, life imprisonment on the conspiracy count, and 240 months

on the money laundering count; (Javier) 262 months on the

possession and conspiracy counts, and 240 months on the money

laundering count; (Perez) 240 months on all counts.2

II. ANALYSIS

A. SPEEDY TRIAL ACT/CONTINUANCE

Perez argues that the district court's denial of his motion

for continuance violated the Speedy Trial Act. 18 U.S.C. §

3161(c)(2). Section 3161(c)(2) provides that "[u]nless the

defendant consents in writing to the contrary, the trial shall not

commence less than thirty days from the date on which the defendant

first appears through counsel or expressly waives counsel and

elects to proceed pro se."

When evaluating a district court's ruling involving the Speedy

2
The district court imposed the sentences of each of the
defendants to run concurrently.

3
Trial Act, we review facts for clear error and legal conclusions de

novo. United States v. Ortega-Mena, 949 F.2d 156, 158 (5th Cir.

1991). Here, the facts underlying the district court's ruling are

undisputed. On April 20, 1995, Perez, along with his two

codefendants, made his first appearance with counsel. On May 9,

1995, the district court, upon the Government's motion,

disqualified Perez's counsel due to conflict of interest.

At the conclusion of the hearing, the district court instructed

counsel to "please advise Mr. Perez and the magistrate that this

case is already set for final pretrial and jury selection. . . .

It may require additional time to be given to the attorney or the

like."

Later that day, Perez appeared before the magistrate judge who

advised him that he should timely retain counsel and that he was

"entitled to a 30-day period for preparation of trial with the new

attorney." On May 22, Perez retained counsel, who entered his

appearance three days later on May 25, 1995. That same day,

Perez's new counsel filed a motion for a 60-day continuance,

asserting that one week was an insufficient amount of time to

prepare for a "case of this magnitude." The district court denied

the motion without reasons on June 1, and jury selection began the

next day. Counsel filed a motion for a 30-day continuance on June

2, 1995, which was denied without reasons that same day. Trial on

the merits began on June 12, 1995.

To support his claim that § 3161(c)(2) of the Speedy Trial Act

was violated, Perez relies on this Court's decision in United

States v. Storm, 36 F.3d 1289 (5th Cir. 1994), cert. denied, __

4
U.S. __, 115 S.Ct. 1798 (1995). In that case, the two

codefendants, represented by the same attorney, appeared before the

court on February 12, and the court scheduled a hearing on February

19, to determine whether there existed a potential conflict of

interest. The court also scheduled the trial for March 15. On the

day of the hearing, February 19, the court disqualified Storm's

counsel and appointed an attorney to represent him. That same day,

newly appointed counsel appeared before the court with Storm. At

that time, counsel moved for a continuance based on the Speedy

Trial Act, arguing that going to trial on March 15 would violate

the 30-day requirement for counsel's trial preparation. The

district court denied the motion, "stating that the 30-day period

runs from the defendant's first appearance before the court with

counsel, and Storm's first appearance with counsel was more than 30

days prior to the trial date." Id. at 1292. On appeal, this Court

squarely held "that Storm was tried in violation of the 30-day

trial preparation requirement found in § 3161(c)(2) of the Speedy

Trial Act." Id. at 1293.

The Government, on the other hand, cites United States v.

Jackson, 50 F.3d 1335 (5th Cir. 1995). In that case, the

defendant's retained counsel had at least thirty days to prepare

for trial. That trial ultimately ended in a mistrial, and retained

counsel withdrew. The court subsequently appointed counsel for

Jackson on February 18. The court set the date for the second

trial on March 2, prompting counsel to move for a continuance,

which the district court denied. Jackson appealed to this Court,

arguing that the denial of his motion for continuance combined with

5
only seven days' notice to retry the case violated § 3161(c)(2).

This Court rejected his argument, holding "that, when a defendant

is represented by counsel who has had at least 30 days in which to

prepare for trial, as Jackson was, § 3161(c)(2) is satisfied; the

retention or appointment of new counsel does not trigger a new 30-

day period." Id. at 1339.

Unlike Jackson, Perez's first attorney did not have at least

30 days to prepare for trial. Instead, the pertinent facts in

Perez's case are nearly identical to the facts in Storm. Storm

clearly controls this case. Accordingly, we conclude that Perez

was tried in violation of the 30-day trial preparation requirement

in § 3161(c)(2).

The next question is whether such error was harmless. Id. at

1294.3 Perez adamantly argues that he was prejudiced by having

only nine days to prepare for jury selection and another nine days

to investigate and prepare for trial. To establish harm, Perez

points to the affidavit of Armando Martin-Trevino, which his

counsel obtained after the conclusion of trial.4

After carefully examining the record, we conclude that Perez

has failed to show prejudice. Most importantly, the evidence

reveals that Trevino would not have testified at Perez's trial;

3
Perez recognizes that we review violations of § 3161(c)(2)
for harmless error. Nonetheless, he argues that the facts of his
case are such that he should not be required to show prejudice.
Although we are not unsympathetic to Perez's general assertions
regarding "the intangible and unprovable benefits of being prepared
for trial," our precedent requires a showing of prejudice. Storm,
36 F.3d at 1294.
4
Perez attached this affidavit to his motion for new trial,
and the district court granted Perez a hearing.

6
instead, he would have invoked the Fifth Amendment. On August 21,

at the hearing on Perez's motion for new trial, Trevino invoked his

Fifth Amendment privilege against self-incrimination. Trevino

asserted, however, that he would be available to testify for Perez

after the conclusion of his trial in Dallas, which was set to

commence on September 5.5 Upon questioning by the court, Trevino

stated that he would not have testified for Perez at the trial that

commenced on June 12. It is therefore clear that, had the district

court properly given Perez's counsel the required 30-day trial

preparation period, Trevino still would not have been available to

testify at Perez's trial. Moreover, even if Trevino had testified

to the matter contained in the affidavit, we are satisfied that

Perez has not shown prejudice sufficient to call for the vacating

of Perez's convictions.

B. MOTION FOR NEW TRIAL

The Cisneroses argue that the district court erred in denying

the motion for new trial based on the prosecution's failure to

disclose exculpatory evidence in violation of Brady v. Maryland,

373 U.S. 83, 87, 83 S.Ct. 1194, 1196 (1963).6 More specifically,

relying on Trevino's aforementioned affidavit, the Cisneroses

assert that the prosecution failed to disclose evidence to the

5
That trial involved an unrelated charge of conspiracy with
intent to distribute seven and one-half tons of marijuana.
6
Perez also argues that the district court erred in denying
his motion for new trial. In support of this claim, Perez relies
on the same arguments that he made to show prejudice in the context
of his Speedy Trial Act violation. For the same reasons we found
those arguments unavailing, we find that the district court did not
abuse its discretion in denying his motion for new trial.

7
defense that a deputy sheriff was involved in marijuana

trafficking. We review a district court's denial of a motion for

new trial for abuse of discretion. United States v. Adi, 759 F.2d

404, 407 (5th Cir. 1985).

After conducting an evidentiary hearing, the court below

rejected the Brady claim, opining as follows:

None of the witnesses called by the Defendant could
corroborate the statements contained in the affidavit; in
fact, every witness testified to evidence contrary to
that in the affidavit. Additionally, the witnesses'
notes, taken during the debriefings in question,
conformed with the witnesses' present testimony. Thus,
the Court concludes the evidence tends to show the
prosecution did not withhold exculpatory information,
since all the testimony offered, save that contained in
the affidavit, controverts the Defendants' allegations
that the prosecution was given this information.

(emphasis added).

The Cisneros brothers do not address the district court's

finding that the prosecution did not withhold any exculpatory

evidence. The district court's finding is supported by the record.

Although Trevino asserts in his affidavit that during the

debriefings he gave detailed information regarding the deputy

sheriff's involvement in drug dealing; the evidence at the hearing,

which the district court believed, indicated Trevino claimed that

he never personally dealt with the deputy sheriff and that it was

simply "common knowledge" that the deputy sheriff dealt in drugs.

Under those circumstances, we cannot say the district court erred

in finding that no exculpatory evidence was suppressed.

In any event, assuming arguendo that exculpatory information

was withheld, we find that the information was not material. The

Cisneros brothers arguments regarding the materiality prong of

8
Brady are rather vague and speculative. They essentially argue

that the deputy sheriff's testimony, no matter how insignificant,

undermined the verdict because the witness was a "dirty cop." We

reject this argument. The hearsay or second-hand assertions

regarding the deputy sheriff's involvement in illegal drugs do not

rise to the level of the materiality standard required to establish

a successful Brady claim. See Kyles v. Whitley, 514 U.S. 419, 115

S.Ct. 1555 (1995). We conclude that the district court did not

abuse its discretion in denying the motion for new trial.

C. MOTION TO SUPPRESS

Javier Cisneros argues that the district court erred in

denying the motion to suppress evidence seized from his residence.

He argues that the affidavit used to obtain the warrant did not

provide probable cause. "Our review of a district court's denial

of a motion to suppress evidence seized pursuant to a warrant is

limited to (1) whether the good-faith exception to the exclusionary

rule applies, and (2) whether the warrant was supported by probable

cause." United States v. Alix, 86 F.3d 429, 435 (5th Cir. 1996).

We need not address the probable cause inquiry if the good-faith

exception applies. Id.

"[E]vidence obtained by officers in objectively reasonable

good-faith reliance upon a search warrant is admissible, even

though the affidavit on which the warrant was based was

insufficient to establish probable cause." United States v.

Satterwhite, 980 F.2d 317, 320 (5th Cir. 1992) (citing United

States v. Leon, 468 U.S. 897, 922-23, 104 S.Ct. 3405, 3420 (1984)).

"An officer may rely in good faith on the validity of a warrant so

9
long as the warrant is supported by more than a `bare bones

affidavit.'" Alix, 86 F.3d at 435. An affidavit is "bare bones"

if it so deficient in demonstrating probable cause that it renders

an officer's belief in its existence completely unreasonable.

Satterwhite, 980 F.2d at 320-21.

In the case at bar, the affidavit supporting the application

for a warrant to search Javier's residence was not a "bare bones"

affidavit. The affidavit was executed by a special agent of the

DEA. It provided a detailed description of the premises to be

searched and summarized the affiant's years of experience as a DEA

agent. It also explained why, based on the agent's experience, he

expected to find evidence of drug trafficking on the premises.

The affidavit provided that the affiant's investigation had

uncovered the Belmontes family's large scale marijuana operation.

"As part of the scheme[,] various . . . persons hired the BELMONTES

to transport marijuana for them and others worked with the

BELMONTES to arrange safe routes around the Border Patrol

Checkpoints which are located on roads leading away from the United

States/Mexican Border. These safe routes utilize back roads and

ranch roads throughout South Texas."

The affidavit then provided information from a confidential

informant. This information tied the Cisneros brothers to the

Belmontes organization. More specifically, details were set forth

regarding the Cisneroses' involvement in transporting loads of

marijuana on two occasions. Additionally, the Cisneroses purchased

a Ford pick-up truck and had the bill of sale put in another

individual's name. A few months later, this particular truck was

10
seized. The truck contained 526 pounds of marijuana. The affiant

then stated that "[t]he information provided by [the confidential

informant] has been corroborated by other sources and his

information is a result of his active participation in the

BELMONTES drug organization."

Javier challenges the sufficiency of the affidavit, arguing

that "it fails to identify the basis of knowledge of the

confidential source's information, fails to sufficiently establish

the confidential source's reliability and credibility, and fails to

establish sufficient police corroboration." Contrary to Javier's

argument, the affidavit provides that the informant's knowledge was

gained as a result of his active participation in the Belmontes'

drug organization. Moreover, "[u]ncertainty about the veracity of

an informant can also be compensated for by detail of the statement

or internal consistency of the statement and surrounding facts."

United States v. Privette, 947 F.2d 1259, 1262 (5th Cir. 1991),

cert. denied, 503 U.S. 912, 112 S.Ct. 1279 (1992). The agent

specifically averred that the information provided by the

confidential informant had been corroborated by other sources.

The affidavit contained more than "bare bones" assertions. It

furnished adequate "information to allow the conclusion that a fair

probability existed that seizable evidence would be found" on

Javier's premises. United States v. Restrepo, 994 F.2d 173, 189

(5th Cir. 1993). The law enforcement officers' reliance on the

warrant was objectively reasonable, rendering the good-faith

exception applicable. The district court did not err in denying

Javier's motion to suppress.

11
 D. OBSTRUCTION OF JUSTICE

The Cisneroses argue that the district court erred by

increasing their respective offense levels by two for obstruction

of justice pursuant to U.S.S.G. § 3C1.1. A district court's

determination that a defendant has obstructed justice is a factual

finding review for clear error. United States v. Winn, 948 F.2d

145, 161 (5th Cir. 1991), cert. denied, 503 U.S. 976, 112 S.Ct.

1599 (1992). A district court's finding will not be deemed to be

clearly erroneous unless this court is "left with the definite and

firm conviction that a mistake has been committed." United States

v. Pofahl, 990 F.2d 1456, 1480 (5th Cir.), cert. denied, 510 U.S.

898, 114 S.Ct. 266 (1993) (citations omitted).

Section 3C1.1 of the sentencing guidelines provides:

If the defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of
justice during the investigation, prosecution, or
sentencing of the instant offense, increase the offense
level by 2 levels.

The commentary provides that "escaping or attempting to escape from

custody before trial or sentencing" is an example of the type of

conduct that would trigger the application of this enhancement. §

3C1.1, comment. (n.3(e)).

It is undisputed that, while awaiting sentencing in the

instant case, the Cisneroses were indicted for attempted escape.

The presentence report (PSR) of both the Cisneroses provided that:

According to Brownsville FBI Agent Raul Carballido, there
is evidence to show that both defendants actively
participated in a conspiracy with family members and
others to attempt their escape from the Cameron County
Jail. . . . According to DEA Special Agent Larry
Councilman, the Cisneros brothers bribed a jail guard to
facilitate their escape. Furthermore, evidence shows

12
 that a cellular phone was found in their possession that
was apparently smuggled in by family members.

The district court adopted the PSR. In light of the Cisneroses'

failure to offer any rebuttal evidence, the district court was free

to adopt the facts in the PSR without further inquiry. United

States v. Mir, 919 F.2d 940, 943 (5th Cir. 1990).7

The Cisneroses further argue that the district court failed to

make a finding that their attempt to obstruct justice was "willful"

as required under § 3C1.1. We have been unable to locate any

specific objection in the record to the district court's failure to

find that the Cisneroses conduct was "willful." In any event,

because there is evidence that the appellants conspired with others

to attempt their escape, we are satisfied that the appellants

"voluntarily and intentionally" attempted to escape, which

satisfies the "willfullness" requirement under § 3C1.1.8 The

district court did not clearly err in finding that the Cisneroses

obstructed justice under § 3C1.1.

E. DEFERRED ADJUDICATION AS A PRIOR CONVICTION UNDER § 841

Juan Cisneros was convicted of conspiring to possess with

intent to distribute in excess of 1,000 kilograms of marijuana in

violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A).

7
Because there is arguably some tension in this circuit's
precedent regarding whether an indictment may be used to support a
sentencing court's findings, United States v. Williams, 22 F.3d
580, 582 n.9 (5th Cir.), cert. denied, 513 U.S. 951, 115 S.Ct. 367
(1994), we rely only on the representations made by the agents.
8
Cf. United States v. O'Callaghan, 106 F.3d 1221, 1223 (5th
Cir. 1997) (explaining that our review of record left us unable to
determine whether the defendant "willfully" failed to appear for
trial).

13
Section 841(b)(1)(A) provides that "[i]f any person commits a

violation of this subparagraph . . . after two or more prior

convictions for a felony drug offense have become final, such

person shall be sentenced to a mandatory term of life imprisonment

without release . . . ." Pursuant to this provision, the district

court sentenced Juan Cisneros to life imprisonment. He argues that

one of his previous felonies, a deferred adjudication, was not a

"prior conviction" within the meaning of § 841(b)(1)(A). This

issue is one of first impression in this circuit.

Juan Cisneros properly concedes that, in the absence of clear

language to the contrary, federal law governs the application of

federal legislation. See United States v. Vasquez-Balandran, 76

F.3d 648, 650 (5th Cir. 1996). In United States v. Morales, 854

F.2d 65, 68 (5th Cir. 1988), we concluded that the meaning of the

phrase "have become final" in 21 U.S.C. § 841(b)(1)(B) was a

question of federal law rather than state law. We explained that

state law could be looked to "for informational purposes, but we

are not bound by its treatment of a felony conviction when we apply

the federal sentence-enhancement provisions." Id.

In Texas state court, Juan Cisneros received deferred

adjudication for felony possession of marijuana pursuant to Tex.

Code Crim. Proc. art. 42.12, § 3d(a),9 which provided that:

When in its opinion the best interest of society and the
defendant will be served, the court may, after receiving
a plea of guilty or plea of nolo contendere, hearing the
evidence, and finding that it substantiates the

9
A subsequent reconfiguration of this statute moved the
deferred adjudication provisions to section 5. See Tex. Code Crim.
Proc. 42.12, § 5.

14
 defendant's guilt, defer further proceedings without
entering an adjudication of guilt, and place the
defendant on probation on reasonable terms and conditions
. . . .

He now argues that the district court erred in determining that his

prior state deferred adjudication was a "prior conviction" for the

purposes of 21 U.S.C. § 841(b)(1)(A). In the court below, Juan

Cisneros argued that because he had successfully completed his two-

year deferred adjudication probation, it was an excludable drug

offense and could not be used to enhance his punishment to a

mandatory life sentence under § 841(b)(1)(A). The district court

disagreed, ruling that this Court's decision in United States v.

Giraldo-Lara, 919 F.2d 19 (5th Cir. 1990), precluded it from

finding that the previous deferred adjudication was not a prior

conviction.

In that case, we concluded that a Texas deferred adjudication

probation counted as a "prior sentence" pursuant to U.S.S.G. §

4A1.2(a)(1) when calculating a defendant's criminal history score.

This holding was based on the following language in the guidelines:

Diversion from the judicial process without a finding of
guilt (e.g., deferred prosecution) is not counted. A
diversionary disposition resulting from a finding or
admission of guilt, or a plea of nolo contendere, in a
judicial proceeding is counted as a sentence under §
4A1.1(c) even if a conviction is not formally entered,
except that diversion from juvenile court is not counted.

U.S.S.G. § 4A1.2(f). As previously set forth, deferred

adjudication in Texas requires that a defendant first plead guilty

or nolo contendere. Art. 42.12 § 3d(a). Therefore, applying the

plain language of § 4A1.2(f), it was clear that a deferred

adjudication was a "prior sentence" for purposes of calculating a

15
defendant's criminal history score. Although perhaps instructive,

Giraldo-Lara is not dispositive of the issue at bar, i.e., whether

a deferred adjudication constitutes a "prior conviction" under 21

U.S.C. § 841(b)(1)(A).10

The Government asserts that holding that Juan's deferred

adjudication was such a "prior conviction" would promote the policy

that defendants who obtain the advantage of a rehabilitative

sentence but nevertheless continue to commit crimes should not

receive further leniency. See § 4A1.2, comment. (n.9). This

policy concern was expressed in the opinions of our sister circuits

that have decided that deferred adjudications or probated sentences

constitute convictions in the context of § 841. See United States

v. Mejias, 47 F.3d 401, 404 (11th Cir. 1995); United States v.

Meraz, 998 F.2d 182, 184-85 (3d Cir. 1993); United States v.

Campbell, 980 F.2d 245, 249-51 (4th Cir. 1992), cert. denied, 508

U.S. 952, 113 S.Ct. 2446 (1993); see also United States v.

McAllister, 29 F.3d 1180, 1184-85 (7th Cir. 1994).

In making that determination, several of the circuits were

guided by the Supreme Court's opinion in Dickerson v. New Banner

Institute, 460 U.S. 103, 103 S.Ct. 986 (1983). Mejias, 47 F.3d at

403; McAllister, 29 F.3d at 1184-85; Campbell, 980 F.2d at 251. In

10
Similarly, in United States v. Stauder, 73 F.3d 56 (5th
Cir. 1996), relying on the above-quoted language in § 4A1.2(f),
this Court held that a Texas deferred adjudication was a conviction
for purposes of determining a defendant's base offense level under
§ 2K2.1. We recognized that "[a]lthough § 2K2.1 uses the term
`conviction,' it refers specifically to the criminal history
provisions, which . . . include deferred adjudications such as
Stauder's in calculating a defendant's criminal history score."
Id. at 57. Like Giraldo-Lara, Stauder may be informative, but it
does not control the disposition of this case.

16
Dickerson, the Supreme Court determined that the defendant's prior

guilty plea was a conviction that could be used to deny him a

license to deal firearms under 18 U.S.C. § 922(g). That section

"impose[d] disabilities on one convicted of a `crime punishable by

imprisonment for a term exceeding one year.'" Dickerson, 460 U.S.

at 113, 103 S.Ct. at 992 (emphasis omitted). There, the defendant

had pleaded guilty in Iowa state court to the crime of carrying a

concealed handgun, and the state court "deferred" entry of formal

judgment and placed him on probation. After the completion of his

term of probation, the defendant was discharged and his record

expunged.

The Court explained that "`[a] plea of guilty differs in

purpose and effect from a mere admission or an extrajudicial

confession; it is itself a conviction. Like a verdict of a jury it

is conclusive. More is not required; the court has nothing to do

but give judgment and sentence.'" Id. at 112-13, 103 S.Ct. at 992

(quoting Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct.

582, 583 (1927)). The Court determined that "for purposes of the

federal gun control laws, we equate a plea of guilty and its

notation by the state court, followed by a sentence of probation,

with being `convicted' within the language of §§ 922(g) and (h)."

Id. at 113, 103 S.Ct. at 992. Finally, the Court opined that the

expunction under Iowa law did not change "the historical fact of

the conviction." Id. at 114-15, 103 S.Ct. at 993.

In the case at bar, after receiving Juan Cisneros's guilty

plea and hearing the evidence, the state trial court had to find

that the evidence substantiated Cisneros's guilt in order to defer

17
the proceedings without entering an adjudication of guilt. Art.

42.12 § 3d(a). Applying the reasoning of Dickerson, we conclude

that Juan Cisneros's guilty plea that resulted in a deferred

adjudication was a "prior conviction" for purposes of sentence

enhancement under § 841(b)(1)(A). The district court properly

sentenced him to life imprisonment.

F. SUFFICIENCY OF THE EVIDENCE

Finally, all three appellants make weak challenges to the

sufficiency of the evidence to support their convictions. We find

no merit in their arguments.

Perez first argues that the Government failed to prove as to

count 10 (unlawful possession of in excess of 100 kilograms of

marijuana on March 7, 1992) that he ever "possessed" the amount of

drugs specified in the indictment. Perez concedes that over 1,000

pounds of marijuana was seized at Israel Cardenas's11 house, but

asserts that Arnoldo Belmontes' trial testimony attributed directly

to him only "40 pounds" (roughly 18 kilograms) of the marijuana.

Perez also generally alleges that the evidence was insufficient to

prove he possessed any amount, but that at most it was forty

pounds. Perez’s argument is unavailing because the issue here is

not ownership, however that may have been decided among the

conspirators, but "possession," be it actual or constructive. See

United States v. Molinar-Apodaca, 889 F.2d 1417, 1423 (5th Cir.

1989) (defining "constructive possession as the knowing exercise

11
Cardenas testified that because he needed money, he stored
over 1,000 pounds of marijuana at his house for the Belmontes. In
exchange for his testimony at trial, the Government did not file
charges against Cardenas.

18
of, or the knowing power or right to exercise dominion and control

over the prescribed substance") (citation and internal quotation

omitted). Viewed in the light most favorable to the Government,

the evidence is sufficient to show that Perez constructively

possessed marijuana in relation to count 10. A reasonable juror

could have easily found the elements of the offense beyond a

reasonable doubt.

Perez next claims that the Government failed to prove the

amount of drugs alleged in count 11 (unlawful possession of in

excess of 1000 kilograms). Perez claims that in Stipulation No. 4,

the Government stipulated that 271 kilograms and 660 kilograms of

marijuana were seized on March 24, 1992; this total of 931

kilograms is less than that charged in the offense. Contrary to

Perez's argument, this Court has held that "[p]roof of the quantity

of controlled substances at issue is not an element of an offense

under 21 U.S.C. §§ 841(a) and 846." United States v. Montes, 976

F.2d 235, 240 (5th Cir. 1992), cert. denied, 507 U.S. 1024, 113

S.Ct. 1831 (1993). Therefore, Perez's argument that the evidence

was insufficient to sustain his conviction for count 11 necessarily

fails.

In regard to count 12, which involved unlawful possession of

in excess of 100 kilograms of marijuana "in or about August, 1992,"

Perez alleges that no testimony established the exact month in

which the “drug caravan” which was the subject of this indictment

occurred. Perez acknowledges that a driver involved in the

incident alleged in count 12, testified, albeit pursuant to

"leading questions," that Perez acted as a guide several months

19
after the March 24, 1992 incident alleged in count 11. "It is

sufficient if the evidence demonstrates a date reasonably near the

date alleged in the indictment." United States v. Bowman, 783 F.2d

1192, 1197 (5th Cir. 1986).12 Perez's sufficiency argument as to

count 12 fails as well.

The Cisneroses complain that their convictions were based

entirely upon the uncorroborated testimony of a number of

coconspirators who had made deals with the Government and that the

resulting convictions are so unreliable they cannot stand. Their

argument focuses not on the quantity of the evidence but rather the

quality of the evidence.

The law in this circuit is that a conviction may be sustained

on the uncorroborated testimony of an accomplice or of a person who

has entered into a plea bargain with the Government. United States

v. Osum, 943 F.2d 1394, 1405 (5th Cir. 1991). Although the

Cisneros brothers acknowledge our precedent, they nevertheless

persist in their claims. They present nothing to indicate that

Osum should not apply to this case. Moreover, the telephone

records and the testimony of law enforcement officers regarding

12
Perez also challenges the sufficiency of the evidence on
count 17, the conspiracy count. Perez argues that the indictment
charges him with conspiring with a dozen individuals to traffick in
marijuana, but that at trial the only conspirator he was ever
linked to was Arnoldo Belmontes. Perez claims that the Government
did not prove the conspiracy alleged, but rather proved several
smaller conspiracies, only one of which included him but all of
which contained the common ingredient of Arnoldo Belmontes.
Contrary to Perez's assertion, viewing the evidence in the light
most favorable to the government, the evidence was not such that it
would preclude reasonable jurors from finding a single conspiracy
beyond a reasonable doubt. United States v. Morris, 46 F.3d 410,
415 (5th Cir.), cert. denied, __ U.S. __, 115 S.Ct. 2595 (1995).

20
seizures of vehicles containing drugs circumstantially supported

the coconspirator testimony. The Cisneroses elicited details of

each witnesses' arrangement with the Government on cross-

examination in front of the jury; no more is required. See United

States v. Jaras, 86 F.3d 383, 387-88 (5th Cir. 1996).13

Regarding the money laundering count, the Government relies

upon the Cisneros brothers' purchase of a truck for cash, the

titling of that truck in another's name, and the use of that truck

for drug transportation. The evidence is sufficient on all counts.

AFFIRMED.

13
The Cisneroses further suggest that the district court
erred by not instructing the jury that corroboration of the
coconspirators' testimony was needed. The court did instruct the
jury that it should consider with great care the accomplice
testimony. In any event, in light of our precedent, the Cisneroses
have not shown that the district court erred.

21