IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 96-20622
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
OSCAR CHAVEZ; ARTURO RODRIGUEZ GUERRA; MIGUEL PEREZ LOPEZ
Defendants-Appellants.
_________________________________________________________________
Appeals from the United States District Court
for the Southern District of Texas
_________________________________________________________________
August 4, 1997
Before KING, DAVIS, and DEMOSS, Circuit Judges.
PER CURIAM:
Oscar Chavez, Arturo Rodriguez-Guerra, and Miguel Perez-
Lopez appeal their convictions for conspiracy to possess
marijuana with intent to distribute, in violation of 21 U.S.C.
§ 846, and for aiding and abetting the possession of marijuana
with intent to distribute, in violation of 18 U.S.C. § 2 and 21
U.S.C. §§ 841(a)(1), 841(b)(1)(B). Miguel Perez-Lopez also
appeals his conviction for using and carrying a firearm during a
drug trafficking offense, in violation of 18 U.S.C. § 924(c).
Finally, Perez appeals an increase in his sentence for lying to
the court during his sentencing hearing. Finding no error, we
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affirm the judgments of conviction and sentences.
I. BACKGROUND
Oscar Chavez (“Chavez”), Arturo Rodriguez-Guerra
(“Rodriguez”), and Miguel Perez-Lopez (“Perez”) were charged by
indictment with conspiracy to possess marijuana with intent to
distribute, in violation of 21 U.S.C. § 846, and with aiding and
abetting the possession of marijuana with intent to distribute,
in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1),
841(b)(1)(B). Perez was also charged with using and carrying a
firearm during and in relation to a drug trafficking offense, in
violation of 18 U.S.C. § 924(c).
The district court denied the defendants’ motions for
judgment of acquittal at the close of the government’s case-in-
chief and again at the close of the evidence, and the jury
convicted each of the defendants as charged. Chavez was
sentenced to 63 months confinement and a five-year term of
supervised release, and was assessed a $12,500 fine and a $100
special assessment. Rodriguez was sentenced to 120 months
confinement and a five-year term of supervised release, and was
assessed a $12,500 fine and a $100 special assessment. Perez was
sentenced to 78 months confinement on the drug counts, followed
by 60 months confinement on the firearm count. He was
additionally sentenced to a five-year term of supervised release,
followed by a three-year term of supervised release, and was
assessed a fine of $12,500 and a special assessment of $100.
The events leading to the indictment began in August 1995
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when Donato “Rico” Chavez, a paid informant for various law
enforcement agencies, contacted DEA agents Russell Reina and
Wendell Campbell and offered to provide information on alleged
drug dealer Oscar Chavez. The agents agreed to arrange a deal
for 400 pounds of marijuana. Rico contacted Chavez and set up
the purchase.
On September 27, 1995, Rico and Agent Reina, acting
undercover and driving separate vehicles, met with the defendants
at a restaurant. Chavez told Rico that Rodriguez was his friend
and that Rodriguez had the “stuff.” Chavez asked Rico if he had
the money, and Rico replied that it was in Reina’s truck. Rico,
Chavez, and Rodriguez approached the passenger side of Reina’s
pickup, where Reina displayed a bag of cash through the open
passenger window.
Rico gave Chavez the keys to the rented van that Rico had
driven to the site. Chavez handed the keys to Rodriguez, who in
turn handed them to a third person. Reina identified the third
person as Perez, but Rico was certain it was not. The third
person, identified as Perez by an agent on surveillance, departed
in the van. Chavez then suggested that the rest of them leave
the area. Rico, Chavez, and Rodriguez drove to a nearby Burger
King, followed by Reina in the pickup truck. Reina claimed that
Rodriguez drove in a manner that indicated he was attempting to
avoid surveillance, although Rico testified that there was
nothing unusual about their route.
Shortly after Rico, Chavez, Rodriguez, and Reina returned to
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the original restaurant, the van pulled into the parking lot.
Reina observed a bulky package in the back seat of the van and
gave the arrest signal. All three defendants were arrested.
During the course of the arrest, Perez pulled a loaded firearm
from his waistband, but threw it aside when overpowered by a
police officer.
II. DISCUSSION
A. Sufficiency of the Evidence to Support a Finding of
Predisposition Against Chavez
Chavez contends that the district court erred in failing to
grant his motions for judgment of acquittal because there was
insufficient evidence to support a finding of predisposition
against him. He argues that he properly raised the defense of
entrapment at trial and the government failed to meet its burden
of proving beyond a reasonable doubt that he was predisposed to
commit the charged drug offense.
“When the government . . . has induced an individual to
break the law, and the defense of entrapment is at issue, the
prosecution must prove beyond a reasonable doubt that the
defendant was inclined to commit the criminal act even before he
was approached by government agents.” United States v. Byrd, 31
F.3d 1329, 1334-35 (5th Cir. 1994)(citing Jacobson v. United
States, 503 U.S. 540, 548-49 (1992)), cert. denied, 514 U.S. 1052
(1995). Using a sufficiency of the evidence analysis, this court
must accept the facts in the light most favorable to the guilty
verdict and may reverse only if no rational jury could have found
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predisposition beyond a reasonable doubt. Id. at 1335. Many
factors may indicate a defendant’s predisposition, including “a
showing of a defendant’s desire for profit, his eagerness to
participate in the transaction, his ready response to the
government’s inducement offer, or his demonstrated knowledge or
experience in the criminal activity under investigation.” United
States v. Madrigal, 43 F.3d 1367, 1370 (10th Cir. 1994)(internal
quotation omitted), cert. denied, 514 U.S. 1089 (1995).
Rico testified that when he first met Chavez through Rico’s
friend Santos, Santos purchased marijuana from Chavez.
Furthermore, Chavez readily agreed to arrange a drug deal when
Rico told him he had a buyer, and Chavez demonstrated knowledge
of his role as a broker during the drug transaction. A jury
could reasonably infer from this evidence that Chavez was
predisposed to commit the offense.
B. Fifteen-Year-Old Conviction
Rodriguez argues that the district court abused its
discretion in permitting the government to introduce his 1979
conviction for conspiracy to possess with intent to distribute
cocaine. Rodriguez contends that the prior conviction is so
remote that its prejudicial value outweighs its probative value.
Extrinsic evidence is properly admitted under Federal Rule
of Evidence 404(b)1 only if it is relevant to an issue other than
1
Rule 404(b) provides in pertinent part: “Evidence of other
crimes, wrongs, or acts is not admissible to prove the character of
a person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of motive,
opportunity, [or] intent . . . .
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the defendant’s character and its probative value is not
substantially outweighed by the danger of unfair prejudice.
United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978),
cert. denied, 440 U.S. 920 (1979). We review the district
court’s ruling under Rules 4032 and 404(b) for abuse of
discretion. United States v. Gadison, 8 F.3d 186, 192 (5th Cir.
1993).
The admission of extrinsic evidence is permissible under
Rule 404(b) when a defendant places his intent at issue in a drug
conspiracy case by pleading not guilty. United States v.
Wilwright, 56 F.3d 586, 589 (5th Cir.), cert. denied, 116 S. Ct.
345 (1995). Although the temporal remoteness of extrinsic
evidence introduced to show intent weakens its probative value,
the age of a prior conviction has never been held to be a per se
bar to its use under Rule 404. See United States v. Broussard,
80 F.3d 1025, 1040 (5th Cir.), cert. denied, 117 S. Ct. 264
(1996). Instead, we apply the test set forth in Beechum.
This court stated in Beechum that “[t]he task for the court
in its ascertainment of probative value and unfair prejudice
under rule 403 calls for a common sense assessment of all the
circumstances surrounding the extrinsic offense.” 582 F.2d at
914. The probative value of extrinsic evidence is not an
absolute, but must be determined with regard to various factors,
2
Rule 403 provides: “Although relevant, evidence may be
excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.”
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such as the extent to which the defendant’s unlawful intent is
established by other evidence, the overall similarity of the
extrinsic and charged offenses, and the amount of time that
separates the extrinsic and charged offenses. Id. at 914-15.
Applying the Beechum test, the district court found:
Well, this is probative to show that [Rodriguez]
wasn’t merely present, that he had knowledge and
intent.
. . .
In this case, the evidence of the prior conviction
is relevant. It involves the same crime. Even though
it’s an old conviction, it is for conspiracy to possess
with intent to distribute cocaine. . . .
I think the admission of this prior conviction
makes it more likely than not that the jury will find
that the defendant was not a mere spectator, but that
he had knowledge and intent to possess with intent to
distribute.
The second criteria is whether the relevance is
substantially outweighed by the prejudice to the
defendant. And it’s not mere prejudice in the sense
that he might be convicted. It’s undue or unfair
prejudice.
I conclude that relevance in this case is not
substantially outweighed by the prejudice to the
defendant where the other evidence of the defendant’s
guilt is either circumstantial or is not strong in the
sense that the only direct evidence of Mr. Rodriguez
Guerra’s involvement is an alleged statement made by
Co-defendant Oscar Chavez to Rico Chavez, the
confidential informant, whose credibility has been
probed and will, no doubt, be subjected to argument by
defense counsel.
So, I conclude that, in this case, the relevance
to this -- of this conviction, given the lack of other
evidence of Mr. Rodriguez Guerra’s intent, is not
substantially outweighed by the prejudice to him from
admissibility of the conviction.
After admitting the prior conviction into evidence, the
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district court instructed the jury that they were to consider the
evidence of the “prior act . . . which was committed many years
before the offense for which he is charged in this case” for the
“very limited purpose” of “determining whether Mr. Rodriguez
Guerra had the state of mind or intent necessary to commit the
crimes against him charge in the indictment in this case.”
The district court considered each of the factors set out in
Beechum. In light of the similarity of the offenses and the
paucity of other evidence of intent, the court determined that
the probative value of the prior conviction, though weakened by
its age, was not substantially outweighed by any prejudicial
effect. We cannot say that the district court abused its
discretion in admitting the evidence of the 15-year-old prior
conviction.
C. Sufficiency of the Evidence to Support Rodriguez’s Convictions
“A conviction must be allowed to stand if, after viewing the
evidence in the light most favorable to the prosecution, the
reviewing court finds that a rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt.” United States v. Sotelo, 97 F.3d 782, 789 (5th Cir.),
cert. denied, 117 S. Ct. 620 (1996). The essential elements of a
conspiracy under 21 U.S.C. § 846 are (1) an agreement between two
or more persons to violate the narcotics laws, (2) a defendant’s
knowledge of the agreement, and (3) his voluntary participation
in that agreement. United States v. Misher, 99 F.3d 664, 667
(5th Cir. 1996). An agreement between coconspirators need not be
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proved by direct evidence, but may be inferred from a concert of
action. United States v. Alix, 86 F.3d 429, 436 (5th Cir. 1996).
A defendant’s presence and association with other members of the
conspiracy, when supported by other evidence, may be used to
support a finding of conspiracy. Misher, 99 F.3d at 668. To
prove aiding and abetting, the government must show that the
defendant (1) associated with a criminal venture, (2)
participated in the venture, and (3) acted in some way to make
the venture succeed. United States v. Quiroz-Hernandez, 48 F.3d
858, 871 (5th Cir. 1995). “The evidence supporting a conspiracy
conviction typically supports an aiding and abetting conviction.”
Id.
Viewed in the light most favorable to the prosecution, the
evidence sufficiently shows a concert of action among Chavez,
Rodriguez, and Perez to support a finding of an agreement to
possess marijuana with intent to distribute. Chavez and
Rodriguez were waiting together at the restaurant when Rico and
Reina first arrived. Chavez identified Rodriguez as the person
with the marijuana and later commented to Rico that he trusted
Rodriguez. Rodriguez and Chavez both approached the pickup to
view the cash, left together when the van departed, and then
returned together when the loaded van arrived.
D. Two-Level Increase in Rodriguez’s Offense Level
Rodriguez objected at sentencing to a two-level increase of
his base offense level pursuant to § 2D1.1(b)(1) of the
Sentencing Guidelines, which provides for such an increase “[i]f
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a dangerous weapon (including a firearm) was possessed.” The
application notes to this section state: “The enhancement for
weapon possession reflects the increased danger of violence when
drug traffickers possess weapons. The adjustment should be
applied if the weapon was present, unless it is clearly
improbable that the weapon was connected with the offense.”
We have held that “one coconspirator may ordinarily be
assessed a § 2D1.1(b)(1) increase in view of another
coconspirator’s possession of a firearm during the drug
conspiracy so long as the use of the weapon was reasonably
foreseeable.” United States v. Mergerson, 4 F.3d 337, 350 (5th
Cir. 1993), cert. denied, 510 U.S. 1198 (1994). “A court may
ordinarily infer that a defendant should have foreseen a
codefendant’s possession of a dangerous weapon, such as a
firearm, if the government demonstrates that another participant
knowingly possessed a weapon while he and the defendant committed
the offense.” United States v. Gaytan, 74 F.3d 545, 559 (5th
Cir.)(internal quotations omitted), cert. denied, 117 S. Ct. 77
(1996). The district court’s decision to apply § 2D1.1(b)(1) is
essentially a factual determination reviewable under the clearly
erroneous standard. United States v. Rodriguez, 62 F.3d 723, 724
(5th Cir. 1995). The district court’s determination that
possession of the weapon by a coconspirator was foreseeable is
also a factual finding reviewable for clear error. Gaytan, 74
F.3d at 558-59.
The district court found that Rodriguez was convicted of a
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conspiracy to possess with intent to distribute marijuana, that
his codefendant Perez possessed a pistol during the conspiracy,
that the pistol was directly connected to the offense because it
was used to guard the marijuana, and that Perez pulled the weapon
from his waistband when approached by law enforcement officers.
On the basis of these findings, the district court inferred that
Rodriguez should have reasonably foreseen that Perez had a gun.
The district court did not clearly err in increasing Rodriguez’s
offense level two levels on the basis of § 2D1.1(b)(1).
E. The 924(c) Jury Charge
Perez argues that the district court impermissibly informed
the jury that his conduct constituted carrying a firearm during a
drug trafficking offense, thereby violating his Sixth Amendment
right to a jury determination as well as the due process
requirement that the government prove each element of the offense
beyond a reasonable doubt. See United States v. Johnson, 718
F.2d 1317, 1320-21 (5th Cir. 1983)(en banc). Because Perez did
not object to the court’s jury charge on the ground he now urges
on appeal, we review for plain error. FED. R. CRIM. P. 52(b).
“Plain error occurs only when the instruction, considered as a
whole, was so clearly erroneous as to result in the likelihood of
a grave miscarriage of justice.” United States v. Inocencio, 40
F.3d 716, 729 (5th Cir. 1994).
In its instructions to the jury in relation to the § 924(c)
charge, the district court used general examples to explain the
difference between “use” and “carry”:
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A firearm can be carried without being used, e.g., if
an offender keeps a gun hidden in his clothing while
engaged in a drug transaction. A firearm can be used
without being carried, e.g., when an offender has a gun
on display during a transaction.
Perez argues that the first example is a “virtual recitation of
the testimony against” him and that it therefore improperly
directed a verdict of guilty on an element of the offense.
The jury instruction at issue is a correct statement of the
law and did not impermissibly address the evidence presented to
the jury at trial. See United States v. Lennon, 751 F.2d 737,
742-43 (5th Cir.), cert. denied, 471 U.S. 1100 (1985). The
challenged jury instruction is not plainly erroneous.
F. Increase of Perez’s Sentence
Perez argues that the district court added 15 months to his
sentence because the court believed that he lied about whether
his attorney had reviewed the presentence report with him, when
in fact Perez was merely confused as a result of his limited
English proficiency and illiteracy. Perez contends that
penalizing him for his confusion violated his right to due
process.
At the sentencing hearing, the district court engaged in a
lengthy exchange with Perez regarding whether or not he had read
the presentence report or had it explained to him in Spanish.
Perez’s responses changed throughout the course of the discussion
and differed from those of his attorney. As a result, the
district court made a finding that Perez was lying. After making
further findings and adopting the presentence report, the
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district court calculated the guideline range to be between 63
and 78 months. The district court then imposed the maximum
guideline sentence because Perez had lied in court.
In determining a sentence within the Guideline range, the
district court may consider a broad range of information. United
States v. Alvarez, 51 F.3d 36, 41 (5th Cir. 1995). In fact, the
district court may consider “any relevant information that the
Sentencing Guidelines do not expressly exclude from
consideration.” Id. (internal quotation omitted). A sentencing
court’s factual findings must be supported by a preponderance of
the evidence, and we review such findings for clear error.
United States v. McCaskey, 9 F.3d 368, 372 (5th Cir. 1993), cert.
denied, 114 S. Ct. 1565 (1994).
In his challenge to his sentence, Perez seems to be invoking
“the due process requirement that a defendant be sentenced on the
basis of evidence having some minimal indicia of reliability and
that the information bear some rational relationship to the
court’s decision to impose a particular sentence.” United States
v. Santiago, 993 F.2d 504, 506-07 (5th Cir. 1993). The defendant
has the burden of demonstrating that the information relied on at
sentencing is materially untrue. Id. Perez’s counsel makes a
plausible argument that Perez was simply confused. From a cold
record, however, we are unable to say that the district court
clearly erred when it concluded that Perez was lying. Perez,
therefore, has not met the burden of showing that the information
relied on by the district court -- that Perez had lied in court -
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- was materially untrue. Thus, the district court did not err in
increasing Perez’s sentence based on its finding that Perez had
lied in court.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgments of
conviction and the sentences imposed by the district court.
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