United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 5, 2004
Charles R. Fulbruge III
Clerk
No. 03-51231
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GEORGE LUIS GUZMAN; JUAN J. FLOREZ,
Defendants-Appellants.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. MO-03-CR-96-1
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Before JOLLY, HIGGINBOTHAM, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
George Luis Guzman appeals his convictions for conspiracy to
possess with intent to distribute 50 grams or more of cocaine
base (count 1 of the indictment) and aiding and abetting
distribution of 5 grams or more of cocaine base (count 4), and
Juan J. Florez appeals his convictions for conspiracy to possess
with intent to distribute 50 grams or more of cocaine base and a
quantity of cocaine (count 1) and aiding and abetting
distribution of 5 grams or more of cocaine base (count 4). Both
*
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this opinion should not be published and is not precedent except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. 03-51231
-2-
Guzman and Florez argue that the judgments are incorrect with
regard to count 1 of the indictment because, they argue, count 1
was dismissed in its entirety. Both argue that the judgment must
be consistent with the verdict. Their argument that count 1 was
dismissed in its entirety fails. The record shows clearly that
the district court dismissed only the portion of count 1
containing the conspiracy-to-possess-with-intent-to-distribute
charge. However, Guzman and Florez are correct that the
judgments do not reflect the jury’s verdict. Both judgments are
incorrect for stating a conviction for the conspiracy-to-possess-
with-intent-to-distribute charge instead of a charge of
conspiracy to distribute controlled substances. As the
Government acknowledges, the judgments also are in error for
stating that Guzman and Florez were convicted of conspiracy
involving 50 or more grams of cocaine base. The judgment must
conform to the jury’s verdict and, therefore, needs to be
corrected. See United States v. Zanabira, 74 F.3d 590, 593 (5th
Cir. 1996).
Guzman argues that the evidence is insufficient to support
his convictions under count 1 and count 4 and that the district
court erred in overruling his motion for judgment of acquittal as
to count 1. Florez argues that the evidence does not support his
convictions because the testimony established only that he
accompanied Guzman to a motel room where Guzman, unbeknownst to
him, delivered drugs.
No. 03-51231
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Given the recorded conversation of Guzman, Florez, and the
confidential source, the jury could have concluded that Florez
came to Guzman’s apartment to help him make crack cocaine in
return for something. The jury also could have concluded that
Florez participated with Guzman on another occasion in trying to
find drugs for the confidential source. Therefore, the
conspiracy convictions of Guzman and Florez represent no manifest
miscarriage of justice. See United States v. Lechuga, 888 F.2d
1472, 1476 (5th Cir. 1989); United States v. McIntosh, 280 F.3d
479, 483 (5th Cir. 2002).
Given that the jury had before it evidence that Florez had
attempted to make crack cocaine with Guzman a couple of weeks
before and was supposed “to get something” out of the deal, the
jury could have concluded that Florez was continuing to assist
Guzman in making or procuring crack on April 16, 2003, when
Guzman delivered crack cocaine to the undercover agents and the
confidential source. Guzman’s and Florez’s convictions on count
4 represent no manifest miscarriage of justice. See United
States v. Stewart, 145 F.3d 273, 277 (5th Cir. 1998); McIntosh,
280 F.3d at 483.
Florez argues that his motion for a mistrial should have
been granted based on the fact that his counsel was surprised
when he received a revised transcription of a recorded
conversation the night before trial. Florez did not show that
the revised transcript was incorrect in identifying Florez as
No. 03-51231
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being present for the conversation. Defense counsel had a copy
of the tape before trial. The district court allowed extensive
cross-examination regarding the revised transcript. Moreover,
the district court correctly admonished the jurors that whether
the transcript was correct was entirely for the jury to
determine. The district court did not abuse its discretion in
denying the motion for mistrial. See United States v. Limones,
8 F.3d 1004, 1007 (5th Cir. 1993).
Florez argues that to satisfy due process, the Government
must turn over requested exculpatory material, that he was harmed
by the eve-of-trial disclosure of the revised tape transcription
showing his participation in the drug transaction, and that a
defendant’s statement is discoverable whether summarized, taped,
or transcribed under FED. R. CRIM. PROC. 16(a)(1).
Florez’s argument regarding the revised transcript is
inapposite. First, the fact that Florez was present and the
statements Florez made are not exculpatory. Second, Rule
16(a)(1) is inapplicable. See FED. R. CRIM. PROC. 16(a)(1); United
States v. Flores, 63 F.3d 1342, 1365-66 (5th Cir. 1995).
Guzman argues that the district court erred in failing to
include an entrapment instruction because the Government targeted
him, launching an elaborate scheme to convict him, and because it
was the Government informant who first made contact and suggested
engaging in criminal activity. The fact that Guzman was targeted
or that the Government initially approached him is not sufficient
No. 03-51231
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to warrant an entrapment instruction. See United States v.
Gutierrez, 343 F.3d 415, 420 (5th Cir. 2003).
As demonstrated by Guzman’s demonstrated knowledge of the
details of the crime, Guzman did not lack the predisposition to
commit the offense, and a jury instruction on the defense of
entrapment was not warranted. See United States v. Ogle, 328
F.3d 182, 186 (5th Cir. 2003); Gutierrez, 343 F.3d at 419. The
district court’s judgment is AFFIRMED, and the case is returned
to the district court with instructions to make the clerical
corrections to the judgments as to count 1 to conform with the
jury’s verdict. See Zanabira, 74 F.3d at 593.