United States Court of Appeals
Fifth Circuit
F I L E D
In the June 15, 2006
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
m 04-50499
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
CESAR ARRNOLDO VALDEZ,
HECTOR RAUL VALDEZ,
Defendants-Appellants.
_________________________
Appeals from the United States District Court
for the Western District of Texas
_________________________
Before SMITH, GARZA, and OWEN, I.
Circuit Judges. This case involves a drug conspiracy to
transport large quantities of marijuana and, on
JERRY E. SMITH, Circuit Judge: at least two occasions, cocaine from Del Rio,
Texas, to Dallas, Texas. Five defendants were
Hector and Cesar Valdez appeal their con- charged in an eight-count indictment for their
victions and sentences on various drug charges. alleged involvement in the operation, but only
We affirm the convictions and Hector’s sen- the appellants, Hector and Cesar Valdez, were
tence. We vacate Cesar’s sentence and remand convicted following a jury trial.1
for re-sentencing.
1
One co-defendant pleaded guilty and the other
(continued...)
Hector and Cesar were found guilty of con- Booker error.
spiracy to possess with intent to distribute
1,000 kilograms or more of marihuana, in vio- II.
lation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and Where, as here, the defendants moved for
846 (Count One). Hector was also found guilty judgment of acquittal at the close of the evi-
of aiding and abetting possession with intent to dence, we decide whether the evidence is suf-
distribute more than 50 kilograms of marihuana ficient by “viewing the evidence and the infer-
on or about June 11 to June 13, 2001, in viola- ences that may be drawn from it in the light
tion of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), most favorable to the verdict” and determining
and 18 U.S.C. § 2 (Count Two); he was found whether “a rational jury could have found the
not guilty of the two cocaine-related charges essential elements of the offenses beyond a
against him (Counts Seven and Eight). Cesar reasonable doubt.” United States v. Pruneda-
was found guilty of aiding and abetting posses- Gonzalez, 953 F.2d 190, 193 (5th Cir. 1992).
sion with intent to distribute more than 100 The jury has the sole responsibility for weigh-
kilograms of marihuana on or about October ing the evidence and making credibility deter-
16, 2001 (Count Four), and on or about De- minations. United States v. Jaramillo, 42 F.3d
cember 2, 2001 (Count Five), in violation of 21 920, 923 (5th Cir. 1995). “It is not necessary
U.S.C. §§ 841(a)(1) and (b)(1)(B), and 18 that the evidence exclude every rational hy-
U.S.C. § 2. pothesis of innocence or be whollyinconsistent
with every conclusion except guilt, provided a
The court sentenced Hector to 360 months reasonable trier of fact could find the evidence
of imprisonment on Count One (the conspir- establishes guilt beyond a reasonable doubt.”
acy/marihuana charge) and 240 months on Pruneda-Gonzalez, 953 F.2d at 193. “How-
Count Two (the aiding and abetting charge), ever, we must reverse a conviction if the
the sentences to run concurrently; 5 years of evidence construed in favor of the verdict
supervised release; and a $25,000 fine. Cesar gives equal or nearly equal circumstantial sup-
was sentenced to 360 months on each of port to a theory of guilt and a theory of inno-
Counts One (conspiracy), Four (aiding and cence of the crime charged.”2
abetting/October 16, 2001) and Five (aiding
and abetting/December 2, 2001), the sentences A.
to run concurrently; 5 years of supervised re- To prove conspiracy to possess and dis-
lease; and a $25,000 fine. tribute a controlled substance, the government
must show beyond a reasonable doubt (1) the
Hector and Cesar appeal, alleging that the existence of an agreement between two or
evidence is insufficient to support their convic- more persons to violate narcotics laws; (2) the
tions and that the district court abused its dis- defendant’s knowledge of the agreement; and
cretion by denying their motions for severance,
made clearly erroneous factual findings with
regard to their relevant conduct and alleged 2
Jaramillo, 42 F.3d at 923; see also United
leadership roles, and committed reversible States v. Gonzales, 436 F.3d 560, 571 (5th Cir.),
cert. denied, 126 S. Ct. 2045 (2006), and cert.
denied, 2006 U.S. LEXIS 4372 (U.S. June 5,
1
(...continued) 2006) (No. 05-1324), and cert. denied, 2006 U.S.
two were acquitted. LEXIS 4373 (U.S. June 5, 2006) (No. 05-10509).
2
(3) his voluntary participation in the conspir- motivation for testifying, and the jury was free
acy.3 to believe or disbelieve their testimony.
Mere presence at a crime scene or associa- Garcia testified that Hector and Ramirez
tion with conspirators is not enough to prove started transporting marihuana out of Garcia’s
participation in a conspiracy, but the “agree- house in January 2001. Hector and Ramirez
ment, a defendant’s guilty knowledge and a de- would pick up the marihuana from a supplier
fendant’s participation in the conspiracy all may in Mexico, load it into Hector’s truck, and
be inferred from the development and colloca- take it back to Garcia’s house to break up and
tion of circumstances.”4 “[A] defendant may be repackage in duffle bags. Hector was occa-
convicted on the uncorroborated testimony of sionally involved in breaking down the mari-
a coconspirator who has accepted a plea bar- huana and would wear socks on his hands to
gain unless the coconspirator’s testimony is keep from getting fingerprints on the drugs.
incredible.” United States v. Villegas-Rodri- Hector’s truck would be used to transport the
guez, 171 F.3d 224, 228 (5th Cir. 1999). drugs to Dallas, where a man named Rudy
“Testimony is incredible as a matter of law only would buy them. Hector and Ramirez would
if it relates to facts that the witness could not pay him when he transported the drugs from
possibly have observed or to events which Del Rio to Dallas.
could not have occurred under the laws of na-
ture.” United States v. Bermea, 30 F.3d 1539, Garcia’s testimony was corroborated by
1552 (5th Cir. 1994). Ramirez, who testified about the same agree-
ment, which involved picking up the mari-
There is ample evidence to support the con- huana from the border, repackaging it into duf-
spiracy charge against Hector. Although much fle bags at Garcia’s, and transporting it to
of the evidence consisted of testimony by three Dallas in Hector’s truck. According to Ramir-
coconspirators—Alfred Garcia, Pedro Ramirez, ez, the money for each load would sometimes
and Javier Cardenas—who accepted plea bar- be split three ways between Ramirez, Hector,
gains and hoped for sentence reductions in ex- and Garcia, although sometimes Garcia would
change for their testimony, their testimony is get paid less. Hector was paid regardless of
not incredible, and each coconspirator’s testi- whether he actuallytransported the marihuana.
mony tends to corroborate the testimony of the Ramirez also stated that Hector came up with
other coconspirators. Moreover, the jurors the idea of leaving at 5:30 a.m. to avoid the
were adequately informed during direct and Border Patrol.
cross-examination about the coconspirators’
Cardenas’s testimony further corroborates
the existence of the conspiracy and Hector’s
3
participation therein. Cardenas testified that
United States v. Pompa, 434 F.3d 800, 806
Ramirez recruited him to drive a load to Dal-
(5th Cir. 2005); United States v. Sacerio, 952 F.2d
las. Ramirez corroborated this testimony.
860, 863 (5th Cir. 1992).
Cardenas further testified that he picked up the
4
United States v. Lentz, 823 F.2d 867, 868 (5th marihuana by the river and unloaded it at Gar-
Cir. 1987); see also United States v. Norman, 415 cia’s house; Garcia corroborated this testimo-
F.3d 466, 471 (5th Cir. 2005), cert. denied, 126 S. ny. Ramirez drove him to Hector’s house to
Ct. 1087 (2006).
3
pick up Hector’s truck with which to transport Cesar had knowledge of the conspiracy and
the drugs. According to Cardenas, once he got voluntarily participated in it sometime between
to Hector’s place, Hector wanted him to drive January 2001 and October 2002.
Ramirez and Hector around the block so they
could talk without the next-door neighbor, a Garcia and Ramirez testified that, after
sheriff, overhearing. Cardenas was busted with marihuana and co-
caine in Hector’s truck, Cesar took over Hec-
Cardenas was arrested on June 13, 2001, be- tor’s role in the operation. They testified that
fore reaching Austin, and he was driving Hec- Cesar would recruit drivers to go pick up the
tor’s truck with over 200 pounds of marihuana marihuana at a rest area outside of Comstock
and over 130 pounds of cocaine. The arresting (which is near Del Rio) and that the marihuana
officer testified about the arrest and stated that would be loaded onto Cesar’s blue Chevy
an insurance card, bearing Hector’s name, was Silverado (although Cesar would not always
found in the truck.5 A rational jury could have accompany the drivers). According to Ramir-
found Hector guilty of conspiracy beyond a rea- ez and Garcia, the marihuana was often taken
sonable doubt on the basis of all the evidence. from Comstock to Cesar’s trailer in Austin be-
fore it was repacked and moved north to
B. Dallas, although sometimes the loads were
As we have explained, the evidence was suf- taken straight to Dallas.
ficient to support the finding that a conspiracy
to possess with intent to distribute marihuana Garcia testified that Cesar would be paid
existed between Hector, Ramirez, and Garcia the same amount that his brother, Hector, had
starting in January 2001. There is similarly been paid during his involvement. Ramirez
ample evidence supporting the finding that stated that, after Cesar took over Hector’s
role, the same person in Mexico was supplying
the marihuana, and the same person in Dallas
5
Testimony by Hector’s mistress, Julie Morales, was buying the loads and paying the same
corroborates the existence of the conspiracy and his amount as before.
involvement in it. Julie testified that she met Hector
at the Cora Street home (Garcia’s house), where she The testimony of Antonio Reyes also cor-
saw Hector and Ramirez unload what looked like roborated Garcia’s and Ramirez’s testimony
bales of hay. When Julie asked Hector what the regarding Cesar’s knowledge of and participa-
bales were, he said “skunk weed.” Julie was fright- tion in the conspiracy. He testified that he saw
ened by the large quantity of the drugs, and she large quantities of marihuana at Cesar’s trailer
called a friend to pick her up. Hector told her not to home and that Cesar kept a large amount of
tell anyone what she had seen, and he “joked” that money under his mattress. He also stated that
he would burn her in her car and have her followed
Cesar had recruited him.6
if she did. After the incident, Julie said Hector “was
always paranoid about who [she] was talking to”
and “would pat [her] down to make sure [she]
6
wasn’t wired.” Finally, she testified that Hector told Reyes further testified that, on one occasion,
her he had made $275,000 from the drug business Cesar offered him $8,000 to drive to Comstock to
and that he had it stashed away somewhere. (This pick up marihuana and that Cesar accompanied
money was not recovered in a search of Hector’s him on the trip. Reyes testified that he and Garcia
residence.) (continued...)
4
Reyes testified that he drove to Del Rio on 2001, during which time 10 loads were trans-
two other occasions for Cesar; on the first, the ported, with each load weighing between 500
marihuana was never delivered, and on the sec- and 1000 pounds. Garcia testified that he oc-
ond, he was arrested. On December 2, 2001, casionally weighed the loads.
Reyes, according to his testimony and that of
the arresting officer, was arrested transporting Ramirez similarly testified that 10 loads
256 pounds of marihuana; he was driving a were transported between January and June of
Chevrolet Blazer that he claimed was provided 2001, but he estimated that each load weighed
by Cesar. between 400 and 500 pounds. His estimate
was based on the amount of money paid for
Macabee Memmen further corroborated Ce- each load, which was between $15,000 and
sar’s involvement in the conspiracy. He testi- $20,000. At $50 per pound, this would actu-
fied that Cesar would occasionally store mari- ally yield 300 to 400 pounds per load. Finally,
huana for brief periods at his apartment. Cesar over 200 pounds of marihuana was seized
asked him to pick up a load of marihuana in from Hector’s truck in June 2001, in addition
Comstock, but he declined. Memmen stated to approximately 130 pounds of cocaine.
that he and his fiance accompanied Cesar to
Dallas one time, and they followed Jose Leal, A rational jury could have concluded that
who was driving a load of marihuana in Cesar’s based on the quantity of drugs seized, at least
Chevrolet Silverado. Based on all the tes- 330 pounds of marihuana was transported
timony, a rational jury could have concluded each time, because when cocaine was not
that Cesar had knowledge of and voluntarily transported, more marihana was transported in
participated in the conspiracy. its place. Thus, even a conservative estimate
based on the testimony and actual seizure
C. would yield at least 3300 pounds of marihuana
Defendants complain that the evidence does during Hector’s involvement in the conspiracy,
not support the jury’s finding, in response to a which is in excess of 1000 kilograms.
special interrogatory, that the amount of mari-
huana involved in the conspiracy was 1000 kil- Similarly, Ramirez testified that 10 loads of
ograms or more (approximately 2200 pounds). marijuana were transported after the June 13
This claim is without merit. According to Gar- bust, when Cesar took over Hector’s role and
cia, Hector was actively involved in the drug was plainly participating in the conspiracy.
transportation operation from January to June Garcia testified that, after the June bust, each
load was closer to 100 to 200 kilograms.
Moreover, the actual loads seized in October
6
and December 2001 were just over 100 kilo-
(...continued)
grams, yielding a conservative estimate of
picked up the marihuana and that Garcia and Cesar
were supposed to follow Reyes back to Austin. Ac-
1000 kilograms. A rational jury could have
cording to Reyes, however, Cesar had planned to concluded that at least 1000 kilograms was
steal that particular load and instructed Antonio to transported during Cesar’s involvement in the
“lose” Garcia and Cesar. Reyes testified that Cesar conspiracy.
further instructed him to take the load to an apart-
ment in Austin, where a guy named Macabee
Memmen lived; Macabee corroborated this account.
5
D. A.
Defendants complain that the evidence ob- There was ample evidence supporting a
viously shows that neither Hector nor Cesar guilty verdict on the count charging Hector’s
was involved in the conspiracy throughout the aiding and abetting Javier Cardenas’ posses-
time alleged in the indictment, or on or about sion with intent to distribute (Count Two).
January 1, 2001 until on or about October 14, Javier, driving Hector’s truck, was arrested on
2002. “[A]n allegation as to the time of the of- June 13, 2001, with 210.5 pounds of marihua-
fense is not an essential element of the offense na. The evidence recounted above could be
charged in the indictment,” and, within reason- rationally construed as showing that Hector
able limits, the offense need only occur before voluntarily lent his truck to Javier for the pur-
the return of the indictment and within the stat- pose that Javier transport the marihuana and
ute of limitations. Russell v. United States, 429 that Hector thus voluntarily associated with,
F.2d 237, 238 (5th Cir. 1970) (per curiam). participated in, and “sought by his action” of
Moreover, the “prosecution, as a consequence lending the truck to make the distribution ven-
of the use of the ‘on or about’ designation, was ture succeed.
not required to prove the exact date; it suffices
if a date reasonably near is established.” United B.
States v. Grapp, 653 F.2d 189, 195 (5th Cir. The evidence was sufficient to support a
Unit A Aug. 1981). Therefore, that defendants guilty verdict on the count charging Cesar’s
may not have been involved in the conspiracy aiding and abetting Garcia’s possession with
throughout its existence does not undermine the intent to distribute (Count Four). On October
jury’s decision that during the time that each of 16, 2001, Garcia was arrested after the police
them was plainly involved, 1000 kilograms or discovered 236 pounds of marihuana at his
more of marihuana was transported. house on Cora Lane. The jury could have ra-
III. tionally construed the following testimony as
Defendants challenge the sufficiency of the demonstrating that Cesar aided and abetted
evidence as to their aiding and abetting convic- Garcia’s possession with intent to distribute.
tions. “To prove aiding and abetting of a crim-
inal venture, the government must show that First, Reyes’s testimony about the load he
the defendant ‘(1) associated with the criminal ran for Cesar in December 2001 supports a ra-
enterprise; (2) participated in the venture; [and] tional inference that Cesar was still involved in
(3) sought by his action to make the venture the conspiracy in October 2001, at the time of
succeed.’” Norman, 415 F.3d at 471 (quoting the seizure. Moreover, Garcia testified that,
United States v. Tenorio, 360 F.3d 491, 495 although his house was not generally utilized
(5th Cir.), cert. denied, 542 U.S. 930, and cert. for the transportation scheme following the
denied, 542 U.S. 930 (2004)).7 June 13 bust, it was being used on this partic-
ular occasion. He explained that the Com-
stock location that they had been using became
7
To convict of possession of marihuana with suspicious after Reyes “lost” a load he had
intent to distribute, the government must prove
(1) possession, (2) knowledge, and (3) intent to dis-
7
tribute. United States v. Cartwright, 6 F.3d 294, (...continued)
299 (5th Cir. 1993). Intent to distribute may be in- ferred from the large quantity of drugs involved.
(continued...) Id.
6
picked up there (the load that Cesar actually IV.
stole) and that they had to go back to using his Defendants’ argument that the district court
trailer. Garcia’s testimony supports a rational erred in denying the motion for severance is
inference that the load seized from his house on without merit. We review a denial of sever-
October 16, 2001, was part of the conspiracy in ance for abuse of discretion. United States v.
which Cesar took part. Ramirezza, 78 F.3d 179, 184 (5th Cir. 1996).
Rule 8(b) of the Federal Rules of Criminal
Therefore, the jury could have rationally in- Procedure allows for joinder of defendants in
ferred that the load seized from Garcia’s house a single indictment “if they are alleged to have
was part of the criminal venture of which Cesar participated . . . in the same series of acts or
was a participant and that Cesar sought to transactions constituting an offense or offens-
make the venture succeed by aiding with the es.” As a general rule, “persons indicted to-
distribution of the marihuana: by lending his gether should be tried together, especially in
truck for the marijuana to be transported, by conspiracy cases.” United States v. Pofahl,
recruiting drivers for the distribution, and/or by 990 F.2d 1456, 1483 (5th Cir. 1993). Federal
allowing the marihuana to be stored at his Rule of Criminal Procedure 14 allows, how-
house in Austin. That is, the jury could have ever, severance of properly joined defendants
rationally inferred that the load found at Gar- on a showing of prejudice to a defendant or
cia’s house was meant to be transported (from the government.
the quantity of the drugs seized and the circum-
stances of the conspiracy) and that Cesar facili- To show that the denial of severance was
tated the transportation/distribution part of the an abuse of discretion, the defendant must de-
venture. As we have noted repeatedly, the type monstrate that “(1) the joint trial prejudiced
of evidence that supports a conspiracy convic- him to such an extent that the district court
tion typically supports an aiding and abetting could not provide adequate protection; and
conviction. United States v. Casilla, 20 F.3d (2) the prejudice outweighed the government’s
600, 603 (5th Cir. 1994). interest in economy of judicial administration.”
United States v. Richards, 204 F.3d 177, 193
C. (5th Cir. 2000) (internal quotations and cita-
Count Five involved the arrest of Antonio tions omitted).
Reyes on December 2, 2001; the evidence pre-
viously recounted emphatically supports a con- Neither Hector nor Cesar has shown preju-
viction on this aiding and abetting count. Reyes dice. They argue that the trial was complex
testified that he was picking up a load for and that the acquittal of two of the codefen-
Cesar, in a vehicle Cesar had provided, when he dants, based on largely the same evidence pre-
was arrested with 256 pounds of marihuana. sented against Hector and Cesar, shows that
Reyes’s testimony supports a rational inference the jury was confused by the evidence.8 First,
that this load was a part of the same criminal
venture and that Cesar sought to make the ven-
ture succeed by providing a vehicle with which 8
Hector’s motion was not timely under Federal
to transport the marihuana. Rule of Criminal Procedure 12 because he did not
make it pre-trial. The district court still considered
the motion, though, along with Cesar’s timely
(continued...)
7
a “general description of the complexity of a court’s leadership adjustment and relevant
trial is not sufficient to show the ‘specific and conduct determination—specifically the esti-
compelling prejudice’ necessary for reversal of mation of the amount of marihuana involved
the denial of a motion to sever.” Id. More- and the inclusion of cocaine—was unsupport-
over, a review of the trial transcripts reveals ed by the evidence.12 This court reviews a dis-
that the bulk of the testimony related to Hec- trict court’s factual findings for clear error.13
tor’s and Cesar’s participation and leadership We “will deem the district court’s factual find-
roles in the conspiracy, so it is unlikely that the ings clearly erroneous only if, based on the
jury could have been confused about the two entire evidence, [the court is] left with the
brothers’ identities or actions. If anything, the definite and firm conviction that a mistake has
fact that the jury acquitted two of the codefen- been committed.” Cabrera, 288 F.3d at 168
dants and found Hector not guilty on the two (internal citations and quotations omitted).
cocaine charges shows that it was able to parse
the evidence and consider it separately for each “A factual finding is not clearly erroneous
defendant and each count.9 if it is plausible in light of the record read as a
whole.” Villanueva, 408 F.3d at 203 n.9. A
Finally, the district court gave the jury a cau- district court “may adopt the facts contained in
tionary instruction to consider the evidence a [presentence report (“PSR”)] without further
against each defendant separately.10 Defen- inquiry if those facts have an adequate eviden-
dants’ severance argument is completely with- tiary basis with sufficient indicia of reliability
out merit. and the defendant does not present rebuttal ev-
idence or otherwise demonstrate that the in-
V. formation in the PSR is unreliable.” Cabrera,
Although the appellants frame their third is- 288 F.3d at 173–74. “The defendant bears the
sue as alleged Booker error,11 they seem to be burden of showing that the information in the
complaining, at least in part, that the district PSR relied on by the district court is materially
untrue.” United States v. Valencia, 44 F.3d
8
(...continued)
12
motion. See Appellants’ Brief at 46–48 (“Hector and
Cesar submit that there was not even a preponder-
9
United States v. Ellender, 947 F.2d 748, 755 ance of the evidence to add the cocaine amounts to
(5th Cir. 1991) (“[A]cquittals as to some defendants their sentences since the jury acquitted Hector on
on some counts support an inference that the jury all counts regarding cocaine, and Cesar was never
sorted through the evidence and considered each charged with any cocaine . . . . Moreover, there
defendant and each count separately.”). was not ever a preponderance of the evidence that
Hector or Cesar Valdez were leaders in the conspir-
10
United States v. Hogan, 763 F.2d 697, 705 acy.”).
(5th Cir. 1985) (“Appropriate cautionary instruc-
13
tions can decrease the possibility that the jury will United States v. Cabrera, 288 F.3d 163, 168
improperly transfer proof of guilt from one defen- (5th Cir. 2002); see also United States v. Villanue-
dant to another.”). va, 408 F.3d 193, 203 n.9 (5th Cir.) (“Post-Book-
er, we continue to apply the same standard of
11
See United States v. Booker, 543 U.S. 220 review to claims of erroneous fact-finding . . . .”),
(2005). cert. denied, 126 S. Ct. 268 (2005).
8
269, 274 (5th Cir. 1995). Based on this evidence, the district court
could have inferred that Hector exercised de-
A. cision-making authority and participated in or-
Hector and Cesar argue that the evidence ganizing the offense to such a degree that he
does not support the four-level adjustment for was a leader rather than a manager. The fact
their alleged leadership roles in the organiza- that Ramirez was also probably a leader (be-
tion. Section 3B1.1(a) of the United States cause he also received a larger share of the
Sentencing Guidelines authorizes this adjust- profits, he recruited Hector, and he dealt with
ment if the “defendant was an organizer or the Mexican suppliers) does not undermine the
leader of a criminal activity that involved five or finding that Hector was a leader: A conspiracy
more participants or was otherwise extensive.” can have more than one leader. Morphew v.
In making the leadership determination, the United States, 909 F.2d 1143 (8th Cir.
court should consider such factors as the 1990).15
“exercise of decision making authority, the
nature of participation in the commission of the B.
offense, the recruitment of accomplices, the In making the leadership determination as
claimed right to a larger share of the fruits of to Cesar, the court adopted the factual findings
the crime, the degree of participation in plan- in the PSR, which stated that Cesar “made ar-
ning or organizing the offense, the nature and rangements with the buyers in the United
scope of the illegal activity, and the degree of
control and authority exercised over others.” 14
U.S.S.G. § 3B1.1 cmt. n.4 (2003). “The dis- (...continued)
trict court may find that a defendant exercised less when he was just storing the marihuana at his
house instead of transporting it to Dallas. Ramirez
a leader/organizer role by inference from the
testified that, unlike Garcia, Hector would get paid
available facts.” Cabrera, 288 F.3d at 174.
the same regardless of whether he accompanied the
drivers when they transported drugs to Dallas.
The district court, after reviewing the trial
transcripts, adopted the factual findings in the Moreover, Garcia testified that “we” (seemingly
PSR, which indicated that Hector received a including Hector) would conceal the drugs in
greater amount of the profits, made technical Hector’s truck under a board, brown paper, fences,
decisions about concealing the drugs, and and pipes to make it look like a farm truck, from
planned the route to be taken by the drivers. which the court could have rationally inferred that
Although Hector objected at the sentencing Hector was involved in the decision-making of how
hearing that the trial evidence supports, at drugs would be concealed in his truck. Further-
most, a three-level adjustment for his role as a more, Ramirez and Garcia testified that Hector
manager, Ramirez’s and Garcia’s testimony dis- devised the plan for the drivers to leave at 5:30
cussed above provides an adequate evidentiary a.m. by a particular route so as to minimize the
chance of being stopped by the Border Patrol.
basis for the PSR’s findings.14
15
See also United States v. Yeager, 331 F.3d
1216 (11th Cir. 2003) (holding that offense level of
14
Specifically, Ramirez testified that he, Hector, each participant in conspiracy of two persons could
and Garcia would sometimes split the money for be enhanced for a leadership role if both exercised
each load three ways but that Garcia would get paid authority and control over distinct portion of
(continued...) criminal activity).
9
States,” “organize[d] the transportation of 30,000 kilograms, id. § 2D1.1(2); with the
drugs to Austin,” and hired drivers. Although four-level leadership adjustment, each defen-
Cesar objected that, at most, he introduced dant had an offense level of 40, for which the
some drivers to Ramirez and Garcia, the tes- guidelines authorize a sentence of 292 to 365
timony at trial provides an adequate evidentiary months.17
basis for the facts alleged in the PSR.16 Based
on all the evidence, the court did not clearly err Without the inclusion of cocaine, Hector
by adopting the findings in the PSR that Cesar was attributed with 2,370 kilograms of mari-
was a leader, so a four-level adjustment was huana, which would yield a base offense level
appropriate. of 32. Id. § 2D1.1(4) (assigning an offense
level of 32 for at least 1000 but less than 3000
C. kilograms of marihuana). With the four-level
Defendants complain of the district court’s leadership adjustment, the offense level is 36,
inclusion of cocaine in their relevant conduct for which the guidelines authorize a sentence
determinations. Specifically, adopting the find- of 188 to 235 months. Cesar, who was attrib-
ings in the PSR, the court attributed 80 kilo- uted with 3509 kilograms of marihuana, would
grams of cocaine to both Hector and Cesar. have a base offense level of 34 and a total
The guidelines assign a base offense level of 36 offense level, with the leadership adjustment,
for quantities of marihuana between 10,000 and of 38, for which the guidelines authorize a
sentence of 235 to 293 months. Each defen-
dant was sentenced to 360 months, which
16
would have been well outside the guideline
Ramirez and Garcia testified that, after Hector
range, had the district court excluded the
withdrew from the organization, Cesar took over his
cocaine from the relevant conduct determina-
brother’s role and share of the profits and began to
recruit drivers for the operation. There was also tion.
evidence that Cesar made arrangements to pay the
drivers he recruited. Antonio Reyes testified that Hector’s argument that the cocaine cannot
Cesar recruited him to drive a few loads and offered be included in his relevant conduct because the
to pay him $8,000 for one of the loads. Memmen jury acquitted him of the cocaine charges is
similarly testified that Cesar recruited him to store meritless. “A jury’s verdict of acquittal does
loads at his apartment on occasion and attempted to not prevent the sentencing court from consid-
recruit him to pick up a load from Comstock; Cesar ering conduct underlying the acquitted charge,
would pay Macabee with marihuana for personal so long as that conduct has been proved by a
use.
Furthermore, according to Reyes, Cesar organ-
ized the theft of one load from the suppliers in
Mexico; Italo White testified that Cesar recruited
him to falsify a document for this endeavor to show
17
that the load had been seized by police. Moreover, Under the guidelines, the cocaine is converted
Cesar provided his truck for transporting loads of into an equivalent quantity of marihuana: One
marihuana, and the loads would often be repackaged gram of cocaine is equivalent to 200 grams of
at his home in Austin before being transported marihuana; thus, 80 kilograms of cocaine is equiv-
north. Cesar would also occasionally follow the alent to 16,000 kilograms of marihuana. U.S.S.G.
drivers when they transported the drugs to Dallas. § 2D1.1 cmt. n.10.
10
preponderance of the evidence.”18 There was that Cesar entered the conspiracy from its in-
easily a preponderance of the evidence to ception and that the cocaine could be attrib-
support the inclusion of cocaine in the relevant uted to him.
conduct determination for Hector. Notably,
when Javier Cardenas was busted on June 13, The testimonywas somewhat ambiguous as
2001 driving Hector’s vehicle, the police seized to whether Cesar was involved in the conspir-
60 kilograms of cocaine along with the mari- acy from its inception. We do not decide that
huana. Moreover, Ramirez testified that he and question for the purpose of this issue, because
Hector ran a 20-kilogram load of cocaine even if the court did not clearly err by finding
before the June 13 bust. that Cesar joined the conspiracy at its incep-
tion, the sentencing guidelines would allow the
D. district court to include the cocaine in Cesar’s
The inclusion of cocaine in Cesar’s relevant relevant conduct only if it was a “reasonably
conduct is more problematic. Although the foreseeable act[] . . . of others in furtherance
government’s failure to charge Cesar with a co- of the jointly undertaken criminal activity.”21
caine offense does not prevent the district court
from including cocaine in his relevant conduct, Cocaine was transported twice during the
the finding must still be supported by a prepon- conspiracy. Ramirez stated that he and Hector
derance of the evidence.19 “did a load” of cocaine, weighing 20 kilo-
grams, before the June 13 bust. Sixty kilo-
According to the evidence produced at trial, grams of cocaine was seized in the bust, but it
cocaine was only transported on June 13, 2001 was concealed in the bale of marihuana and
and once before that. If Cesar did not join the was not discovered until the crime lab cut the
conspiracy until after the June 13 bust, the dis- bale open. The remainder of the testimony re-
trict court could not attribute the cocaine quan- garding the drug conspiracy describes it as a
tities to him.20 The court concluded, however, marihuana transportation scheme. Although
the government attempts to describe the con-
spiracy as a “drug transportation” conspiracy,
18
United States v. Cathey, 259 F.3d 365, 368 which would make the cocaine foreseeable,
(5th Cir. 2001) (quoting United States v. Watts, 519 this begs the question of foreseeability, trans-
U.S. 148, 157 (1997)). forming the inquiry into the nearly identical in-
quiry of whether this was a marihuana trans-
19
United States v. Partida, 385 F.3d 546, 566
(5th Cir. 2004) (“Due to a standard of proof at sen-
20
tencing lower than the proof necessary to convict at (...continued)
trial, the scope of a sentencing court’s fact finding of that conduct.”).
is not limited to considering only the conduct of
21
which the defendant was formally charged or con- U.S.S.G. § 1B1.3(a)(1)(B). Although the
victed.”), cert. denied, 544 U.S. 911 (2005). “reasonably foreseeable” requirement does not ap-
ply to conduct in which the defendant was person-
20
U.S.S.G. § 1B1.3 cmt. n.2 (“A defendant’s ally involved or which the defendant aided and
relevant conduct does not include the conduct of abetted, the trial testimony does not support an in-
members of a conspiracy prior to the defendant ference that Cesar was personally involved in, or
joining the conspiracy, even if the defendant knows aided and abetted, the two cocaine distributions at
(continued...) issue.
11
portation conspiracy or a drug transportation for 3509 kilograms of marihuana.23 This
conspiracy. amount is unquestionably supported by the
evidence, with two exceptions that reduce the
Arguably, these two loads of cocaine, at quantity found by about 23 kilograms, so it
least one of which was hidden inside a bale of would not affect the base offense level.24
marihuana, would not be reasonably foreseeable
to a member of the conspiracy who, according The evidence also supports the estimation
to the trial testimony, dealt only with mari- following the June 13, 2001, bust (i.e. eight
huana. That is, there is no evidence that Cesar loads at 100 kilograms). Trial testimony indi-
had a “leadership” role in the conspiracy before cated that ten loads, weighing 100 to 200 kilo-
June 13, so there is no indication that he had grams each, were transported following the
knowledge of everything that was transported. bust, and this estimate seemed to include the
Given the isolated and secretive nature of the two loads actually seized in October and the
two cocaine transports, the cocaine could be one load seized in December. Because the
reasonably foreseeable to Cesar only if his mere PSR’s count would yield eleven loads (eight
involvement in the conspiracy automatically plus three), it appears that one load was dou-
makes the transportation of any drugs reason- ble counted. But, the discrepancy from the
ably foreseeable to him. But “the reasonable double counting of a load (at most 111.7 kilo-
foreseeability of all drug sales does not auto- grams) would not affect the base offense level,
matically follow from membership in the con- because the total marihuana would still exceed
spiracy.” United States v. Wilson, 116 F.3d
1066, 1077 (5th Cir.), vacated in part on other 23
grounds sub nom. United States v. Brown, 123 The PSR calculates the total based on the
following estimates: (1) Between January and June
F.3d 213 (5th Cir. 1997) (en banc). Because
2001, 2275 kilograms of marihuana was stored at
the evidence does not support an inference that
Garcia’s house; (2) on June 13, 2001, 95 kilograms
the cocaine was reasonably foreseeable to Ce- of marihuana was seized from Javier Cardenas’s
sar, we vacate his sentence and remand for truck; (3) between June 14, 2001, and December
resentencing. 2001, eight loads of marihuana weighing 100 kilo-
grams each (800 kilograms) were transported;
E. (4) on October 4, 2001, 109 kilograms of mari-
Defendants contest the adoption of the huana was seized from a vehicle containing Ramir-
PSR’s findings with respect to the total quantity ez’s belongings; (5) on October 16, 2001, 107 kilo-
of marihuana attributable to them. The mar- grams of marihuana was seized from Garcia’s
ihuana calculation only affects Cesar, how- home; (6) on December 2, 2001, Reyes was ar-
ever.22 The PSR states that he was responsible rested with 111.7 kilograms; and (7) on October
14, 2002, 17.9 kilograms was seized from Michelle
Diaz and Vanessa Ruiz.
24
First, the quantity reported for the seizure on
December 2, 2001, from Reyes’s vehicle (111.7
22
Because of the amount of cocaine found in kilograms), is lighter than the amount to which the
Hector’s car during the June 13, 2001, bust (60 witnesses testified, which was closer to 116 kilo-
kilograms), Hector will have a base offense level of grams. Second, the government presented no evi-
36 regardless of the amount of marihuana attributed dence regarding a transaction on October 2002
to him. (17.9 kilograms).
12
3000 kilograms.25 Moreover, the estimate fore, the marihuana transported during that
adopted by the district court as to the quantity period is attributable to Cesar, who also chal-
transported after the June bust was actually lenges the reliability of the estimate for this
lighter than that supported by the evidence (be- time frame because of the inconsistency among
cause each load after the bust was reported to the witnesses’ estimations, and between those
weigh as much as 200 kilograms). estimations and the marihuana actually
seized.27
With respect to the quantity of marihuana
transported from January to June 2001, the Thus, the question is whether the PSR’s
finding that Cesar joined the conspiracy since estimation that 2275 kilograms was transport-
its inception is not clearly erroneous. 26 There ed from January to June 2001 has an adequate
evidentiary basis with sufficient indicia of reli-
ability. United States v. Alford, 142 F.3d 825,
25
U.S.S.G. § 2D1.1(3) (assigning a base offense 832 (5th Cir. 1998). A “district court may
level of 34 for at least 3,000, but less than 10,000, consider ‘estimates of the quantity of drugs for
kilograms of marihuana). sentencing purposes.’” Id. The court may
extrapolate the quantity from “any information
26
Garcia testified that, after the June 13 bust, that has ‘sufficient indicia of reliability to
“[w]e then approached Hector’s brother Cesar, and support its probable accuracy,’ including a
we asked him if he wanted to start, you know, if we probation officer’s testimony, a policeman’s
could start using his truck and we would just pay approximation of unrecovered drugs, and even
him what we were paying his brother.” This testi- hearsay.” Id. (quoting United States v. Huskey,
mony could be interpreted as suggesting that Cesar
137 F.3d 283, 291 (5th Cir. 1998) (citing
was not previously involved in the conspiracy. Ra-
U.S.S.G. § 6A1.3 cmt.)).
mirez’s testimony is likewise uncertain as to Cesar’s
involvement in the conspiracy before the June 13
bust. Ramirez testified that, after the bust, Cesar Although the witnesses’ estimations of the
“took over” his brother’s role. When the prosecutor quantity of marihuana per load are somewhat
asked Ramirez whether Cesar was involved in the
conspiracy before June 13, Ramirez responded that
Cesar “was getting his own thing, too . . . . He was 26
(...continued)
just getting loads of marihuana, too.” and participating in the organization of the scheme
until after the bust.
When the prosecutor asked Ramirez whether he
27
delivered any loads to Cesar before the June 13 Ramirez testified that, between January and
bust, he testified that “we dropped about 20 pounds, June 2001, ten loads of marihuana were trans-
15 pounds” on the way to Dallas. Although the ported, each between 400 and 500 pounds (roughly
testimony is less than pellucid, the district court, 180 to 227 kilograms). Garcia testified that each
hearing the evidence firsthand, could have rationally of the ten loads was between 500 and 1000 pounds
interpreted this testimony to mean that Cesar was (roughly 227 to 450 kilograms). The load seized
involved in a more minimal role before June 13 but on June 13, 2001, contained a much lower quantity
became a leader after that. Specifically, the testi- of marihuana—210 pounds (roughly 95 kilo-
mony could mean that Cesar was receiving loads of grams), but it also contained 132 pounds of co-
marihuana on occasion from the other conspirators caine (roughly 60 kilograms) concealed within the
before the bust but did not begin recruiting drivers marihuana; so the total weight of the seizure was
(continued...) 342 pounds (or 155 kilograms).
13
inconsistent and are not supported by the have reached a significantly different result,”
amount of drugs seized, the information in the id., and they have not met this burden. The
PSR bore a sufficient indicia of reliability for court made no affirmative statements at sen-
the district court to rely on it. The PSR’s esti- tencing that indicate that it would have
mate of 2275 kilograms seems to be based on reached a significantly different result under an
ten loads of marihuana at roughly 227 kilo- advisory scheme.
grams a load (or 500 pounds), which would be
consistent with Ramirez’s and Garcia’s testi- In fact, the court commented, after defen-
mony (at the high end of Ramirez’s and the low dants’ pleas for mercy, that “I hear you both
end of Garcia’s estimates). asking for mercy because basically this is the
rest of your life in prison . . . . [N]obody has
VI. asked mercy for those people that got hooked
Defendants contend the district court com- on the drugs that you were moving so that you
mitted reversible Booker error. They concede could make a living, so that you could live in
that neither of them made a constitution-based a nice house and you could drive a nice car.
objection at sentencing, and a review of the rec- What about those folks? Anybody want to ask
ord further reveals that they objected solely to mercy for them?” In these circumstances, de-
the factual findings in the PSR and not to the fendants have not met the standard set forth in
fact that the court was making factual findings. Mares. Although they urge us to discard Mar-
Thus, we review for plain error. United States es and use the plain error standard for Booker
v. Mares, 402 F.3d 511, 520 (5th Cir.), cert. error adopted by other circuits, this panel is
denied, 126 S. Ct. 43 (2005). bound by Mares.
“An appellate court may not correct an error The judgments of conviction are
the defendant failed to raise in the district court AFFIRMED. The sentence of Hector Valdez
unless there is ‘(1) error, (2) that is plain, and is AFFIRMED. The sentence of Cesar Valdez
(3) that affects substantial rights.’” Id. (quoting is VACATED and REMANDED for
United States v. Cotton, 535 U.S. 625, 631 resentencing.
(2002)). If these conditions are met, the “court
may then exercise its discretion to notice a for-
feited error but only if (4) the error seriously
affects the fairness, integrity, or public reputa-
tion of judicial proceedings.” Id. Because these
sentences were enhanced based on judge-found
facts that were not admitted by the defendants
or found by the jury, there is error that is plain.
Id. at 521.
As in Mares, however, there is no showing
that the error affected substantial rights. De-
fendants have the burden of showing that the
district judge, “sentencing under an advisory
scheme rather than a mandatory one, would
14