United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 24, 2005
_______________________ Charles R. Fulbruge III
Clerk
No. 04-50338
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LOUIS RIVERA, a/k/a Big Joe;
MICHAEL ANTHONY SANCHEZ, a/k/a 50-50;
ERNEST ANDRADE ZUBIATE, a/k/a/ Neto,
Defendant-Appellants.
Appeals from the United States District Court
for the Western District of Texas,
Austin Division
03-CR-144(13)
Before DAVIS, JONES, and GARZA, Circuit Judges.
PER CURIAM:*
Defendants Jose Louis Rivera, Michael Anthony Sanchez,
and Ernest Andrade Zubiate appeal their convictions and sentences
for participating in various criminal enterprises. At trial, the
Government demonstrated that the three defendants were members of
a criminal gang known as the “Texas Syndicate.” Finding no error
in their convictions or sentences, we AFFIRM.
Appellant Rivera challenges his conviction and sentence
on five separate grounds. Rivera, who was charged and convicted on
*
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opinion should not be published and is not precedent except under the limited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.
drug conspiracy and RICO charges, claims that his sentence for the
drug conspiracy is multiplicitous of his sentence for the RICO
violation. In Blockburger v. United States, 284 U.S. 299, 52
S. Ct. 180 (1932), the Supreme Court enunciated the proper test for
determining whether a defendant has been punished twice for the
same offense: “whether each provision requires proof of a fact
which the other does not.” Id. at 304, 52 S. Ct. 180. Applying
the Blockburger test does not involve detailed examination of the
facts; rather, the inquiry focuses on the elements of the statutory
offense. United States v. Odutoya, 406 F.3d 386, 392 (5th Cir.
2005). To establish a RICO conspiracy, the government must prove
facts beyond the commission of the RICO predicate crimes, even if
the predicate crimes are also conspiracies. See 18 U.S.C.
§ 1962(c); United States v. Krout, 66 F.3d 1420, 1432 (5th Cir.
1995). Thus, because the RICO count requires proof of a fact
beyond that required to prove a drug conspiracy, the two counts and
sentences are not multiplicitous. See also United States v.
Cauble, 706 F.2d 1322, 1351 (5th Cir. 1983)(“[A]n indictment
charging RICO predicates as separate offenses is not
multiplicitous.”).
Rivera also challenges his sentence under United States
v. Booker, 543 U.S. __, 125 S.Ct. 738 (2005). Because Rivera did
not raise his Booker objection before the district court, he must
satisfy the plain error test. United States v. Mares, 402 F.3d 511
(5th Cir. 2005). Under Mares plain error review, Rivera has the
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burden to show that the error affected his substantial rights by
pointing to evidence in the record that the “sentencing judge--
sentencing under an advisory scheme rather than a mandatory one--
would have reached a significantly different result.” Id. at 521.
Rivera contends that he need not meet this requirement because he
would automatically receive a life sentence under the Guidelines.
This argument is without merit. The district court could have made
a statement in opposition to the mandatory sentence in the same
manner a district court can state opposition to a guideline range.
Because Rivera points to no such statement, he cannot meet his
burden under Mares.
Rivera also challenges the sufficiency of evidence for
his conviction on the drug conspiracy charge, and because that
charge served as a predicate crime under RICO, the RICO charge as
well. This court considers the evidence in the light most
favorable to the verdict, drawing all reasonable inferences in
support of the verdict. See, e.g., United States v. Martinez-Lugo,
411 F.3d 597, 599 (5th Cir. 2005). A jury may infer a conspiracy
from circumstantial evidence, United States v. Fierro, 38 F.3d 761,
768 (5th Cir. 1994), and the uncorroborated testimony of a co-
conspirator may be sufficient to sustain a conviction, Burton v.
United States, 237 F.3d 490, 498 (5th Cir. 2000). With respect to
the drug conspiracy charge, the individual defendant’s actual
possession of more than five kilograms of cocaine is not necessary
to prove the drug conspiracy charge, as the crux of the offense is
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the agreement. See United States v. Prieto-Tejas, 779 F.2d 1098,
1103 (5th Cir. 1986) (“In a drug conspiracy prosecution, the
government does not need to show an overt act in furtherance of the
agreement.”). Further, a guilty defendant need only play a minor
role in the overall scheme to distribute drugs. Id. At trial,
several witnesses testified as to the Texas Syndicate’s activities
involving drug distribution and Rivera’s participation therein.
The evidence is sufficient to sustain the drug conspiracy charge,
and consequently, the RICO charge.
Rivera also challenges his RICO conviction on the grounds
that the Jove Rios murder was unrelated to the criminal enterprise.
This claim fails because a rational jury could have linked that
murder with the enterprise, as witnesses testified to the
enterprise’s involvement in and reasons for the murder.
Rivera, along with appellant Zubiate, argue that the
district court erred in denying their separate motions to sever.
A district court should grant a severance only if a defendant is
able to show that “there is a serious risk that a joint trial would
compromise a special trial right of one of the defendants, or
prevent the jury from making a reliable judgment about guilt or
innocence.” Zafiro v. United States, 506 U.S. 534, 113 S. Ct. 933,
938 (1993). Both Zubiate and Rivera complain that it was
prejudicial for the jury to hear crimes committed by the other
defendants, yet such evidence would have been permissible even if
Zubiate and Rivera were tried alone on RICO charges. See United
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States v. Castillo, 77 F.3d 1480, 1491 (5th Cir. 1996); see also
Krout, 66 F.3d at 1425 (“The government is not limited in its proof
of a conspiracy or racketeering enterprise to the overt or
racketeering acts alleged in the indictment.”). The district court
committed no error in denying the motions to sever.
Zubiate further contends that no rational trier of fact
could have found the existence of facts necessary to establish the
elements of his drug conspiracy conviction. As noted above, a jury
may infer a conspiracy from circumstantial evidence, Fierro, 38
F.3d at 768, and the uncorroborated testimony of a co-conspirator
may be sufficient to sustain a conviction, Burton, 237 F.3d at 498.
Here, a witness testified that he supplied Zubiate with drugs for
resale. Such evidence, combined with the other testimony, was
sufficient to convict.
Zubiate also challenges his sentence, arguing that it was
error for the district court to refuse to depart downward in
calculating his sentence on the basis that Zubiate’s punishment was
greater than that of his co-defendant Sanchez. Although a district
court may depart downward based on sentence disparities, it is not
mandated to do so. See United States v. Wright, 211 F.3d 233, 239
(5th Cir. 2000). The record reveals that the district court was
aware of its discretion to depart downward, and chose not to
exercise that discretion. There is no error.1
1
Zubiate does not challenge his sentence under United States v.
Booker, 543 U.S. __, 125 S.Ct. 738 (2005).
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Finally, Appellant Sanchez argues that § 5G1.3(b)
prohibits his sentence to run consecutively with his life sentence
for capital murder in the state court. Section 5G1.3(b) would only
apply if Sanchez’s state murder conviction and sentence were “the
basis for an increase in the offense level for the instant
offense.” The record reveals that Sanchez’s state murder
conviction was used solely as part of his criminal history, and
that his offense level was based on his drug activity. The
district court did not err in imposing consecutive sentences. See
United States v. Marrone, 48 F.3d 735, 738 (3d Cir. 1995)
(explaining that “where a defendant has previously been convicted
for a RICO predicate act, that conviction should be factored into
the defendant’s criminal history score”).
Finding no merit to appellants’ various challenges, we
AFFIRM the convictions and imposed sentences.
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