United States v. Carrillo-Morales

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 92-5720
__________________

UNITED STATES OF AMERICA

Plaintiff-Appellee,

versus

AUGUSTIN CARRILLO-MORALES,
CARLOS PRADO-YEPEZ, PEDRO
GALLEGOS, JR., and RUDY
LOUIS AUSTIN,

Defendants-Appellants.

______________________________________________

Appeals from the United States District Court for the
Western District of Texas
______________________________________________

(July 22, 1994)

Before GARWOOD, JOLLY and SMITH, Circuit Judges.

GARWOOD, Circuit Judge:

Defendants-appellants Augustin Carrillo-Morales (Carrillo),

Carlos Prado-Yepez (Prado), Pedro Gallegos, Jr. (Gallegos), and

Rudy Louis Austin (Austin) were convicted of, and sentenced for,

conspiracy to possess, with intent to distribute, more than one

hundred kilograms of marihuana, and of aiding and abetting each

other in the commission of the underlying substantive offense. On

appeal, Prado and Gallegos contend that the district court erred in

denying their motions to suppress evidence obtained during an
allegedly illegal detention and search by San Antonio police

officers. Carrillo and Austin challenge the sufficiency of the

evidence underlying their convictions. Finally, Prado and Carrillo

raise issues relating to their sentences. We affirm.

Facts and Proceedings Below

On January 20, 1992, Officer John Langerlaan (Langerlaan) of

the Narcotics Bureau of the San Antonio Police Department learned

from a confidential informant that Prado was in San Antonio to

conduct a narcotics transaction. Working with Sergeant Ralph

Sramek (Sramek) of the Texas Department of Public Safety Narcotics

Service, Langerlaan confirmed the informant's tip that Prado was

staying in Room 124 of a particular La Quinta Inn there and was

driving a red Pontiac with California license plates.1 The

officers established surveillance of Room 124 and Prado.

Sramek and Langerlaan later learned from United States Customs

Agent Joe Cisneros that Prado was a documented narcotics trafficker

from California who frequently used vehicles with hidden

compartments to smuggle large amounts of marihuana, cocaine, and

heroin from Mexico into the United States and to return large

amounts of currency to Mexico. Agent Cisneros also informed the

officers that Prado had a 1988 drug conviction.

On January 20, the officers observed Austin, a known narcotics

trafficker, arrive at the La Quinta in a blue Chevrolet pickup

1
Although Langerlaan had no prior experience with the
informant, he believed the informant to be reliable because the
information provided proved to be correct upon further
investigation.
The red Pontiac was not registered to Prado or his wife.

2
truck and meet with Prado in the motel parking lot for about eight

to ten minutes.

Later that day, the officers observed Prado and his wife take

a woman, subsequently identified as Susan Harrison (Harrison) of

California, to the San Antonio airport. At the airport, Sramek

approached Harrison and identified himself as a narcotics officer.

She was extremely nervous but allowed the officers to search her

purse and luggage. Harrison informed Sramek that she had made two

deliveries of marihuana from McAllen to San Antonio on January 14

and 19, 1992, driving a blue and beige Ford pickup truck. Her

contact in San Antonio was a George Reynaga, who told her a man

named Carlos would pay her and drive her to the airport; she had a

phone number for her contact, who was Prado.2 The address of the

Crown Paint and Body Shop (body shop), 1414 West Avenue in San

Antonio, was written on Harrison's plane ticket. She also had

receipts for two motels in San Antonio; written on the back of one

receipt was the telephone number for the La Quinta Inn where Prado

was staying and the number 124.3

On January 21, Prado and his wife moved to the Rodeway Inn

Motel.4 On the morning of January 22, officers observed Prado and

2
Harrison informed Sramek that Prado had agreed to deposit
$4,000 in her bank account and to reimburse her for her plane
fare and motel rooms. He told her she could choose an automobile
from the Crown Paint and Body Shop at 1414 West Avenue in lieu of
payment in cash. Following Prado's arrest, officers discovered a
piece of paper with Harrison's bank account number in his
possession.
3
In addition, the number of a pager rented by Carrillo was
written on one of Harrison's hotel receipts.
4
Prado claimed to have lost an address book in his room at

3
his wife drive to 2046 West Craig in San Antonio, where they met

with George Reynaga and Carrillo. At that address, the officers

observed a blue and beige Ford pickup truck with a white camper

shell matching the description given by Harrison of the vehicle in

which she transported marihuana. Later that afternoon, the

officers followed Prado and Maria Reynaga, George's wife, in a

white Mitsubishi with California license plates, and Carrillo, in

the Ford pickup truck, to 1122 Waverly in San Antonio. Carrillo

parked the pickup truck in the driveway. Mrs. Reynaga got out of

the Mitsubishi and went into the residence.5 Carrillo and Prado

checked the doors of the pickup to ensure that they were locked,

then got into the Mitsubishi. Mrs. Reynaga joined them a few

minutes later, and they returned to 2046 West Craig. Later that

evening, the officers observed Reynaga and Carrillo stop by Prado's

motel room, where they remained for approximately fifteen minutes.

On January 23, the officers observed Prado check out of the

Rodeway Inn and take his wife to the airport, where he purchased a

one-way ticket to Los Angeles for her. They observed him then

travel to the body shop at 1414 West Avenue in San Antonio. Two

buildings were at 1414 West Avenue: an office building for the

body shop business and a garage shop adjoining. The buildings were

similar in appearance, and were connected by an awning. The number

1414 was affixed to the shop building as well as to a sign hanging

the La Quinta; members of the motel staff later found the book
and turned it over to the police.
5
1122 Waverly was the residence of Jorge and Maria Torres,
the parents of Mrs. Reynaga.

4
over the office door. Gallegos lived in the shop, which he claimed

was 1418 West Avenue rather than 1414 West Avenue.

At the body shop, the officers saw Prado meet with Gallegos,

the owner of the shop, and Austin arrive a short time later.

Shortly before one o'clock, Prado was observed going to lunch at a

nearby Kettle restaurant with Carrillo and George Reynaga. After

lunch, Prado returned to the body shop in the red Pontiac. Reynaga

drove Carrillo to within a few blocks of the body shop; Carrillo

walked the short distance remaining. Austin, who had left the body

shop earlier, returned at approximately 1:30 p.m.

Officers observed Prado give what appeared to be a set of keys

to Carrillo, who left the shop on foot. Sergeant Sramek testified

that Carrillo was constantly looking in every direction as he

walked down the street as though he were worried about being

followed. The officers attempting to follow him eventually lost

sight of him. The officers saw that after Carrillo left, Gallegos

and Austin stood outside the body shop, looking up and down the

street. Carrillo returned to the body shop in the white

Mitsubishi, which he drove directly into the garage area. Sergeant

Walker of the Texas Department of Public Safety observed Austin

and/or Gallegos close the garage door after the Mitsubishi entered;

the garage door previously had remained open.6 Officer Langerlaan

testified that he observed Austin, Prado, and Gallegos look around

the area surrounding the body shop in a suspicious manner.

6
On cross-examination, Walker stated that he saw Austin and
Gallegos standing at the garage door but conceded that he did not
know which man opened and closed the door for the Mitsubishi.

5
 Believing that the defendants were involved in an illegal

drug-related activity, Langerlaan and Sramek called a meeting of

the officers conducting surveillance to discuss the possibility of

arresting the defendants and securing the premises. The

surveillance force included approximately eight plain clothes

officers. In addition, three or four uniformed police officers

were called in for back up.

The officers observed Carrillo emerge from the body shop

carrying a black bag and luggage. He placed the bags in the red

Pontiac, which was parked underneath the awning separating the two

buildings, and prepared to leave in the car with Prado. Believing

Carrillo and Prado were about to leave with contraband, the

officers decided to stop the car.7 As officers were stopping Prado

and Carrillo, Sramek and Sergeant Walker of the Department of

Public Safety secured Gallegos, whom they observed running toward

the back of the office area. Langerlaan approached the body shop

area and attempted to open the garage door. When he was unable to

do so, he heard a voice from inside the shop tell him to try the

other door. When Langerlaan entered the shop, he observed Austin

walking toward the white Mitsubishi. Austin was secured.

Agent Cisneros advised Prado of his constitutional rights in

English and Spanish and obtained written consent from him to search

7
This decision was based on the officers' surveillance of the
defendants' activities and their fear that, due to heavy traffic
conditions and the limited number of available officers, any
attempt to follow the car would prove fruitless and possibly
dangerous. On previous occasions during the investigation,
officers had been unable to maintain surveillance of vehicles
driven by suspects.

6
the red Pontiac. Officers noticed a faint odor of marihuana in the

trunk area, although no marihuana was found in the Pontiac. In a

black bag belonging to Prado in the Pontiac's trunk, they found a

set of keys to the Ford pickup Harrison had described. The pickup

was later searched pursuant to a warrant; it contained marihuana in

a false camper top. Also found in the red Pontiac was a note with

Harrison's name and bank account number. During the protective

sweep of the body shop, officers discovered a set of scales and

marihuana in plain view.

Sramek and Langerlaan obtained a search warrant for 1414 West

Avenue, as well as for the West Craig and Waverly residences.8

They found 143 pounds of marihuana in the white Mitsubishi which

was in the shop, 50 pounds of marihuana in 2 suitcases found in the

uncovered cargo area of a Chevrolet Blazer which appeared to be

undergoing some type of restoration, 30 pounds of marihuana in a

trash can in Gallegos's residence, a large measuring scale in the

Blazer, and various papers linking the defendants.9 Approximately

130 pounds of marihuana were found in the hidden compartment

located in the camper top of the blue and beige Ford pickup truck,

which was parked at the Waverly address.10 In all, officers seized

8
During the initial stop on January 23, Gallegos refused to
consent to a search of the body shop. The officers informed him
that the shop would be secured until a warrant could be obtained.
9
Of the 143 pounds of marihuana found in the Mitsubishi, only
86 pounds were found during the initial search. Several weeks
later, pursuant to a tip from a confidential informant, a
subsequent search revealed 57 additional pounds in a secret
compartment in the car.
10
Harrison had admitted she delivered 130 pounds of marihuana
on one of her trips from McAllen.

7
344.86 pounds of marihuana.

In an indictment filed February 5, 1992, a grand jury charged

all four defendants with violations of 21 U.S.C. § 846 (count one)

and of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (count two). Count

one charged defendants with conspiracy to possess, with intent to

distribute, over 100 kilograms of marihuana. Count two alleged

that defendants aided and abetted the possession of marihuana with

intent to distribute the same. Defendants pleaded not guilty and

proceeded to trial, where a jury found all four guilty on both

counts.

The district court sentenced Carrillo to concurrent terms of

70 months' imprisonment on count one and 60 months' imprisonment on

count two, to be followed by 4 years' supervised release. Both

Prado and Austin received concurrent terms of 120 months'

imprisonment on both counts and concurrent terms of 8 years'

supervised release on count one and 4 years' supervised release on

count two. In addition, the district court imposed on Austin a

fine of $2,500. Gallegos was sentenced to concurrent terms of 58

months' imprisonment and concurrent terms of 3 years' supervised

release on both counts.

All four defendants filed timely notices of appeal.

Discussion

I. Motions to Suppress

Prado and Gallegos challenge their convictions, claiming that

the district court erred in denying their motions to suppress and

in admitting evidence obtained during the allegedly illegal

8
detention and subsequent search.11 Prado complains of the search

of the red Pontiac, Gallegos of the entry into the buildings at

1414 West Avenue after the initial stop as well as of the later

entry and search pursuant to the warrant. The district court

summarily adopted the magistrate judge's findings and

recommendation that the motions to suppress be denied. Gallegos

filed objections to the magistrate judge's report; Prado did not.

Both defendants raised continuing objections to the admission of

the challenged evidence at trial.

The magistrate judge ruled that the officers' actions at the

body shop on the afternoon of January 23 did not constitute a full

arrest of the defendants, but merely a stop and detention as

envisioned by the Supreme Court in Terry v. Ohio, 88 S.Ct. 1868

(1968). Such a stop does not require that the officers act upon

probable cause; reasonable suspicion will suffice. The magistrate

judge had "little difficulty in concluding that reasonable

suspicion existed to warrant the stop of the Prado vehicle," based

upon the officers' surveillance of the defendants' activities, the

information gathered from other law enforcement agencies, and

Harrison's admissions of transporting marihuana and her information

implicating Prado. On appeal, Prado and Gallegos contend that they

were in fact arrested and that, because there was not probable

cause to support their warrantless arrest, their motion to suppress

should have been granted.12

11
We denied Carrillo's post-oral argument motion to adopt the
briefs (and suppression arguments) of Prado and Gallegos.
12
Prado concedes that, if the stop were proper, his consent to

9
 In reviewing a district court's ruling on a motion to

suppress, we review questions of law de novo. United States v.

Sanders, 994 F.2d 200, 202-03 (5th Cir.), cert. denied, 114 S.Ct.

408, 608 (1993). We consider the evidence in the light most

favorable to the verdict, and accept the district court's factual

findings unless clearly erroneous or influenced by an incorrect

view of the law. Id. (quoting United States v. Maldanado, 735 F.2d

809, 814 (5th Cir. 1984)).

We assume, arguendo, that the detention of the defendants at

the body shop constituted a full arrest.13 Because the officers

arrested the defendants without a warrant, their actions must have

been supported by probable cause and necessitated by exigent

circumstances. Welsh v. Wisconsin, 104 S.Ct. 2091, 2093 (1984);

Payton v. New York, 100 S.Ct. 1371 (1980). See also United States

v. Richard, 994 F.2d 244, 247 (5th Cir. 1993) ("Thus, if agents

have no warrant and no consent, even if they have probable cause

and statutory authority to arrest a suspect, they must also have

exigent circumstances to enter."). We consider here whether the

officers had probable cause to arrest the defendants and whether

exigent circumstances existed to justify proceeding without a

warrant.

a search of the red Pontiac was valid.
13
The facts are not at odds with our assumption that an arrest
occurred. Almost a dozen law enforcement officers, proceeding
without a warrant and with weapons drawn, stopped Prado's vehicle
and entered the premises of the body shop, seizing and
handcuffing all four defendants. The defendants were frisked for
weapons, and were read their Miranda rights.

10
 A. Government's Failure to Object to Magistrate Judge's
Report

As an initial matter, we address Gallegos's claim that, even

if the officers did have probable cause to enter the body shop, the

government may not argue on appeal that probable cause existed

because it did not object to the portion of the magistrate judge's

report intimating that probable cause was lacking. We disagree.

The magistrate judge's report is arguably ambiguous on the

issue of probable cause. The magistrate judge stated in his

recommendation that he was "unable to conclude that officers should

have, or even legally could have, obtained a search warrant prior

to the onset of the exigent circumstances." It is possible that

the magistrate judge was concerned that probable cause for a search

might not have existed prior to the discovery of the marihuana and

scales inside the body shop during the arrest and subsequent

protective sweep, or that such a concern might legitimately have

influenced the officers in not sooner seeking a warrant. Earlier

in the same discussion, however, the magistrate judge stated that

the officers "knew at least two of the defendants remained inside

[the body shop] and reasonably believed that marijuana was also

there." (Emphasis added.) The reasonable belief that the

defendants were inside the body shop with a controlled substance

constitutes probable cause to believe that a crime was being

committed and that the persons to be arrested were involved.

Further, the magistrate judge's report states, "The critical facts

establishing the probable cause necessary for a warrant, i.e. the

meeting of Prado and the other defendants at 1414 West Avenue, the

11
arrival of the Mitsubishi driven by Carrillo, and the suspicious

actions of the defendants in attempting to detect surveillance,

occurred on January 23 prior to the 4:55 p.m. seizure of Prado's

vehicle." (Emphasis added).

Moreover, the determination of probable cause is a question of

law, although based upon factual findings. See, e.g., United

States v. Orozco, 982 F.2d 152, 154 (5th Cir. 1993). In Nettles v.

Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982) (en banc), we

established the rule that a party's failure to file written

objections to a magistrate judge's proposed findings and

recommendations bars the party from "de novo determination by the

district judge of an issue covered in the report and shall bar the

party from attacking on appeal factual findings accepted or adopted

by the district court except upon grounds of plain error or

manifest injustice." Nettles, 677 F.2d at 410 (emphasis added).14

Cases following Nettles apply the rule only to a magistrate judge's

findings of fact and not to his conclusions of law. See, e.g.,

McFadden v. Cabana, 851 F.2d 784, 790 (5th Cir. 1988) (court did

not determine whether habeas petitioner had waived appeal on issue

by failing to object to magistrate judge's recommendation on

particular issue because petitioner did not question the factual

findings but only the legal determinations), cert. denied, 109

S.Ct. 1541 (1989); Brue v. Heckler, 709 F.2d 937, 939 (5th Cir.

1983) (right to appellate review not prejudiced by failure to

14
This bar does not apply, however, unless the magistrate
judge informs the parties of the time limits for filing
objections. Nettles, 677 F.2d at 410.

12
object to magistrate judge's report because report contained no

factual findings); Tijerina v. Estelle, 692 F.2d 3, 5 n.1 (5th Cir.

1982) (Nettles bar applies only to factual findings adopted or

accepted by district court).

Since the magistrate judge's recommendation was that all the

motions to suppress be denied, and since the report was, from the

government's point of view, at the worst ambiguous on the ultimate

conclusion of probable cause, and it resolved all the disputed

historical facts favorably to the government, the government's

failure to object to the report did not forfeit its right to

contend that the report's recommendations should be accepted

because the underlying facts found establish probable cause.

B. Probable Cause

Probable cause exists when facts and circumstances within the

knowledge of the arresting officer would be sufficient to cause an

officer of reasonable caution to believe that an offense has been

or is being committed. United States v. De Los Santos, 810 F.2d

1326, 1336 (5th Cir.), cert. denied, 108 S.Ct. 490 (1987).

In the present case, the law enforcement officials had

conducted surveillance of Prado and his contacts for four days.

They acted upon a tip from a confidential informant whose

information proved correct upon corroboration. Most importantly,

Harrison informed the officers that she had delivered two loads of

marihuana to San Antonio. She implicated Prado, who took her to

the airport and arranged payment for her services and expenses.

Gallegos's body shop came under suspicion because the address of

the body shop was written on her plane ticket, and because Harrison

13
stated that Prado told her she could choose an automobile from the

body shop in lieu of cash payment for her delivery services.

Finally, the officers observed Prado, Austin (a known narcotics

trafficker), and Carrillo at the body shop with Gallegos on January

23; the men appeared nervous and alert to the possibilities of

surveillance. When Carrillo drove the Mitsubishi into the garage

area, Austin and Gallegos closed the doors; the doors had

previously remained open.

The officers knew that Prado was in San Antonio to conduct a

narcotics transaction. On January 23, they had reason to believe

that he was ready to leave San Antonio and could reasonably surmise

that he was completing his business there.15 The officers observed

activity around the body shop which comported with their

suspicions. When the defendants emerged after secreting themselves

in the garage area with the Mitsubishi, the officers could

reasonably have believed that Prado and Carrillo were leaving with

contraband in the red Pontiac. We hold that the officers acted

with probable cause.

C. Exigent Circumstances

The defendants complain that the officers impermissibly

created the alleged exigent circumstances by stopping the Pontiac

at the body shop rather than following it to a location out of

sight from the garage to prevent arousing the suspicions of the

defendants remaining in the body shop. Gallegos also complains

15
Prado and his wife had checked out of the Rodeway Inn before
Prado took her to the airport for a one-way trip to California.
The officers had not observed Prado checking into any other
motel.

14
that the officers could not rely on exigent circumstances to

justify their entry of the body shop because they did not have

probable cause to enter or secure his residence. As discussed

above, however, probable cause did exist.

Our determination of whether exigent circumstances existed is

based on a number of factors, including the degree of urgency

involved, the amount of time necessary to obtain a warrant, the

possibility of danger to officers remaining to guard the site of

the contraband, a reasonable belief that contraband will be

removed, and the ready destructibility of the contraband. United

States v. Vasquez, 953 F.2d 176, 180 (5th Cir.), cert. denied, 112

S.Ct. 2288 (1992).

Although Gallegos claims the officers could have obtained a

warrant before a warrantless search or arrest became necessary,

officers are not required to obtain a warrant as soon as it is

practicable to do so. United States v. Webster, 750 F.2d 307, 327

(5th Cir. 1984), cert. denied, 105 S.Ct. 2340 (1985). In this

case, the need to seek a search warrant for the premises of the

body shop did not arise until the afternoon of January 23. Prior

to that time, the only evidence linking the body shop to the

narcotics transaction were Harrison's statements and the address

written on her airline ticket. It was only as the activities

surrounding the premises unfolded during the afternoon of the 23rd

that the need to search the body shop arose.

Although the officers almost certainly knew that stopping the

red Pontiac at the body shop would reveal their presence to the two

defendants remaining inside, necessitating a protective search,

15
they decided to do so anyway for fear that they would lose the car

in traffic if they attempted to follow it to another location. The

officers believed Prado had concluded the narcotics transaction and

was ready to leave town. The possibility that the officers could

have waited to stop the Pontiac several blocks from the body shop

to prevent detection by Gallegos and Austin never arose, because

the intersection with Interstate Highway 10 was only a few blocks

away. The officers feared losing the Pontiac in the heavy rush

hour traffic on the interstate or, perhaps, endangering the

officers and other motorists if Prado and Carrillo attempted to

evade the police. These circumstances justify the stop of the

vehicle at the body shop.

The entry of the body shop was also justified by exigent

circumstances. When Prado and Carrillo were stopped in the red

Pontiac, the officers were aware that Austin and Gallegos remained

in the building. Not knowing whether either defendant was armed,

the officers acted reasonably in securing the two men to ensure

their own safety and to prevent escape. Furthermore, the officers

conducting the surveillance reasonably believed that there was

marihuana inside the body shop; their entry precluded its

destruction. That these fears were reasonable is evident from

Gallegos's attempt to run from the body shop upon the officers'

approach; they could reasonably have concluded that he was

attempting to escape, obtain a weapon, or destroy the contraband.

Furthermore, the officers did not have time to obtain a warrant

after stopping the red Pontiac and before arresting Austin and

Gallegos and securing the premises.

16
 D. Search Pursuant to the Warrant

Gallegos claims that the search warrant ultimately obtained by

the officers on January 24 was tainted by the allegedly illegal

conduct of the officers in conducting the initial arrest and

protective sweep of the premises. He claims that, without the

evidence of the marihuana and scales viewed during the sweep, the

officers would not have had probable cause to obtain the warrant.

As discussed above, the officers did have probable cause. The

search warrant was not tainted.

Finally, Gallegos claims that, even if the search warrant was

valid, the officers exceeded the scope of the warrant when they

searched his residence, which was at 1418 West Avenue. The address

in the warrant was that of the body shop, 1414 West Avenue. He

contends that the officers acted in bad faith in searching his

residence because they were aware the search warrant did not extend

to the correct address for his residence. Following his arrest,

Gallegos listed his address, 1418 West Avenue, on an interview

sheet. Langerlaan and Sramek were the officers in charge of

obtaining the search warrant; neither officer saw Gallegos's

information sheet until after the search warrant had been executed.

Gallegos's residence was inside the building where the garage

area was located. The number 1414 was painted on the outside of

that building. The two buildings on the premises were similar in

appearance and separated by an awning; the name Crown Paint and

Body Shop was on both buildings.

Under the circumstances, the officers acted reasonably and in

good faith in not including the address 1418 West Avenue in the

17
warrant application and in assuming that the warrant for 1414 West

Avenue covered both buildings. See Maryland v. Garrison, 107 S.Ct.

1013 (1987); United States v. Gordon, 901 F.2d 48, 50 (5th Cir.

1990).

E. Legality of Arrest

Because the officers were acting upon probable cause and under

exigent circumstances, the defendants' arrests and the protective

search of the body shop premises were not unlawful, and the ensuing

search with the warrant was not tainted. The district court

properly denied the defendants' motions to suppress the evidence

obtained as a result of the defendants' arrest at the body shop.

II. Sufficiency of the Evidence

Carrillo and Austin complain that the evidence is insufficient

to support their convictions. Upon such a claim, we review the

evidence, whether direct or circumstantial, and all the inferences

reasonably drawn from it, in the light most favorable to the

verdict. United States v. Salazar, 958 F.2d 1285, 1290-1291 (5th

Cir.), cert. denied, 113 S.Ct. 185 (1992). Our inquiry is whether

a rational trier of fact could have found that the evidence

established guilt beyond a reasonable doubt. United States v.

Carrasco, 830 F.2d 41, 43 (5th Cir. 1987).

To obtain convictions on count one, the government was

required to prove: (1) the existence of an agreement between two

or more persons to violate the narcotics laws; (2) that the

defendants knew of the conspiracy and intended to join it; and (3)

that the defendants did participate in the conspiracy. United

States v. Leed, 981 F.2d 202 (5th Cir.), cert. denied, 113 S.Ct.

18
2971 (1993). On count two, the government was required to prove

that the defendants aided and abetted each other in the (1) knowing

(2) possession of marihuana (3) with intent to distribute it.

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

1989).

A. Evidence as to Carrillo

Carrillo argues that the jury improperly convicted him on the

basis of his innocent activities of driving the blue and tan Ford

pickup and the white Mitsubishi. He contends that his presence

outside the body shop on January 23, and his actions in leaving on

foot and returning in the Mitsubishi, are inadequate proof because

no contraband was found in the Pontiac in which he was leaving with

Prado. Although the officers later found marihuana in the trunk

and hidden compartment of the Mitsubishi, he claims that his

earlier control of the vehicle is not enough to infer possession of

the marihuana in the hidden compartment. This argument totally

ignores the marihuana found in the trunk of the Mitsubishi.

In some circumstances, control of a vehicle permits inference

of knowledge of its contents. United States v. Richardson, 848

F.2d 509, 513 (5th Cir. 1988). In cases involving hidden

compartments, however, reliance may not be placed solely on the

defendant's control of the vehicle. United States v. Gibson, 963

F.2d 708, 710 (5th Cir. 1992); Richardson, 848 F.2d at 513. "The

general rule in this circuit is that knowledge can be inferred from

control over the vehicle in which the drugs are hidden `if there

exists other circumstantial evidence that is suspicious in nature

or demonstrates guilty knowledge.'" United States v. Garza, 990

19
F.2d 171, 174 (5th Cir.) (quoting United States v. Anchondo-

Sandoval, 910 F.2d 1234, 1236 (5th Cir. 1990)), cert. denied, 114

S.Ct. 332 (1993). This Court has relied on additional factors such

as nervousness or inconsistent stories given by the defendant to

provide that circumstantial evidence. See, e.g., Gibson, 963 F.2d

at 711; Garza, 990 F.2d at 175.

Here, officers conducting surveillance of the body shop

observed that Carrillo exhibited nervousness and appeared to check

behind him for surveillance when he walked from the body shop on

his way to pick up the Mitsubishi. Eighty-six pounds of marihuana

were found in the trunk of the Mitsubishi. Carrillo was present in

the garage area of the body shop prior to the arrests; there was

marihuana in plain view in the garage as well as a noticeable odor

of the marihuana. In addition, officers found a piece of paper in

Carrillo's possession with a pager number; Prado had a card with

the same number on it.

The record supports Carrillo's conviction.

B. Evidence as to Austin

Austin correctly claims that neither his mere presence at the

body shop on January 23 nor his close association with the other

defendants, standing alone, suffices to support his conviction.

United States v. Martinez-Moncivais, 14 F.3d 1030, 1035 (5th Cir.

1994) (mere presence at a scene of criminal activity cannot support

a conviction for involvement in a narcotics conspiracy when such

evidence stands alone); United States v. Hernandez-Beltran, 867

F.2d 224, 226 (5th Cir.) (evidence of mere presence and association

alone are insufficient to sustain conviction), cert. denied, 109

20
S.Ct. 2439 (1989). Austin disregards other evidence which,

together with his presence and association with the conspiracy,

weigh in favor of affirming his conviction.

Austin's involvement in the events occurring between January

20 and 23, so far as shown by the record, consists of his brief

meeting with Prado at the La Quinta on January 20 and his presence

at the body shop on January 23. He and Gallegos stood outside the

body shop looking up and down until the Mitsubishi, loaded with

marihuana, drove in, whereupon he and/or Gallegos closed the door

and both entered the shop. The officers arrested Austin in the

garage area of the body shop, which smelled of marihuana, near an

open vehicle with unzipped suitcases containing marihuana. Upon

his arrest, officers found in his possession a pager, a card with

numbers which resembled a drug ledger, and business cards with the

name of a restaurant where Prado had eaten written on one and the

number of Prado's motel room at the Rodeway Inn on another.

Austin's business number was found in Gallegos's living area inside

the body shop. Significantly, officers found a pager in Prado's

possession which Austin had received from John Garza, Austin's

business associate.

Although the question is indeed a close and difficult one, we

ultimately conclude that the evidence as a whole, viewed in the

light most favorable to the verdict, is sufficient to sustain

Austin's conviction, though only by the narrowest of margins.

III. Sentencing Issues

We will uphold a sentence imposed under the Guidelines so long

as it is the result of a correct application of the Guidelines to

21
factual findings which are not clearly erroneous. United States v.

Alfaro, 919 F.2d 962, 964 (5th Cir. 1990). Determinations of legal

principles are reviewed de novo and factual findings are reviewed

for clear error. United States v. Mourning, 914 F.2d 699, 704 (5th

Cir. 1990). A factual finding is not clearly erroneous if it is

plausible in light of the record read as a whole. United States v.

Sanders, 942 F.2d 894, 897 (5th Cir. 1991).

A. Prado's Role in the Offense

In his supplemental brief, Prado argues that the district

court failed to resolve the contested issue of his leadership role

in the conspiracy. In the presentence investigation report (PSR)

prepared prior to Prado's sentencing hearing, the probation officer

recommended increasing Prado's offense level by two levels for his

role as a leader or manager of a criminal activity which did not

involve five or more participants and was not otherwise extensive.

U.S.S.G. § 3B1.1(c). Prado objected to this aspect of the PSR in

writing and again before the court at the sentencing hearing.

"If the comments of the defendant and the defendant's counsel

or testimony . . . allege any factual inaccuracy in the presentence

investigation report[,]" the sentencing court must make "(i) a

finding as to the allegation, or (ii) a determination that no such

finding is necessary because the matter controverted will not be

taken into account in sentencing." FED. R. CRIM. P. 32(c)(3)(D).

According to the record of the sentencing hearing, the district

court did not make a factual finding on the issue of Prado's role

in the conspiracy. It appears, however, that Prado's counsel

conceded that such a determination would be unnecessary because

22
Prado faced the statutory mandatory minimum sentence of 120 months:

"THE COURT: Now, the Government announces no objections
to the presentence report. The Defendant, Mr. Blagg,
there was one objection concerning . . . leadership in
the instant offense. Do you have that objection?

"MR. BLAGG (for defendant Prado): Your Honor, that
objection needs a ruling by the Court.

"THE COURT: All right.

"MR. BLAGG: But I would say this, and I've told my
client, I don't think it makes any difference in what the
sentence in this case will be. My client's aware of the
statutory mandatory minimum sentence of 120 months. So,
I don't wish to pursue it any further than making the
objection here for the record.

"THE COURT: All right, fine. Anything else, Mr. Bauman,
do you have anything to that?

"MR. BAUMAN (for the Government): No, Your Honor."
(Emphasis added.)

The court accepted counsel's decision not to pursue the leadership

objection and calculated Prado's offense level with the two-level

increase for his role in the offense.

Without the increase, Prado's total offense level would have

been 26, which with a criminal history category of III yields a

sentencing range of 78 to 97 months' imprisonment. At level 28,

with the same criminal history category, the sentencing range was

97 to 121 months. Because of the statutory mandatory minimum

sentence, however, the district court calculated Prado's sentencing

range to be 120 to 121 months. The court chose the lower number,

imposing concurrent terms of 120 months' imprisonment for both

counts. If the court had rejected the leadership increase, the

only effect would have been to nullify the court's already-limited

choice of sentencing range; Prado would have received the same

23
sentence.

On appeal, Prado argues that, even though the leadership

increase had no effect on the length of his sentence, he was still

harmed by the district court's failure to resolve the conflict

because the Bureau of Prisons relies on the sentencing court's

factual determinations in deciding an inmate's institutional

assignment and eligibility for certain programs. See FED. R. CRIM.

P. 32 advisory committee's note (1983 amendment).16 Counsel for

Prado did not raise the institutional assignment or program

eligibility concerns, or any other concerns analogous thereto or

related to Bureau of Prison or Parole Commission considerations, as

a ground for objection at the sentencing hearing.

It appears that the district court took counsel at face value

and did not pursue the objection to make any determination as

required by Rule 32(c)(3)(C). Because Prado received the statutory

16
The Advisory Committee's notes to the 1983 amendment adding
subdivision (c)(3)(d) to Rule 32 state as follows:

"As noted above, the Bureau of Prisons and the
Parole Commission made substantial use of the
presentence investigation report. Under current
practice, this can result in reliance upon assertions
of fact in the report in the making of critical
determinations relating to custody or parole. For
example, it is possible that the Bureau or Commission,
in the course of reaching a decision on such matters as
institution assignment, eligibility for programs, or
computation of salient factors, will place great
reliance upon factual assertions in the report which
are in fact untrue and which remained unchallenged at
the time of sentencing because defendant or his counsel
deemed the error unimportant in the sentencing context
(e.g., where the sentence was expected to conform to an
earlier plea agreement, or where the judge said he
would disregard certain controverted matter in setting
the sentence)."

24
mandatory minimum sentence, and because he did not ask the district

court to pursue the factual determination at his sentencing, no

harmful error occurred in the district court's sentencing of

Prado.17

B. Sentencing of Carrillo

Carrillo claims that changes to the Guidelines in 1992 entitle

him to a review of his sentence. These changes became effective on

November 1, 1992, shortly after the district court pronounced

Carrillo's sentence on October 15.

Carrillo specifies three changes, which he asserts could be

applied retroactively and which could have affected his sentence.

First, he claims that the commentary to section 1B1.3 (relevant

conduct) was amended to provide that, because the scope of the

criminal activity of one defendant may not necessarily be the same

as the scope of the entire conspiracy, relevant conduct need not be

the same for every participant. U.S.S.G. § 1B1.3, comment. (n.2)

(1992). He ignores, however, that this same provision, albeit

phrased differently, existed as part of Application Note One to the

1991 version of section 1B1.3.18 There was no presently relevant

17
Prado also claims that the evidence does not support a
finding that he was a leader of the conspiracy. He contends that
he and his co-conspirators were roughly equal in culpability, so
that no defendant should receive an adjustment for role in the
offense. U.S.S.G. § 3B1.4, comment. The record does not
substantiate this claim.
18
The 1991 version stated:

"Because a count may be broadly worded and include the
conduct of many participants over a substantial period
of time, the scope of the jointly-undertaken criminal
activity, and hence relevant conduct, is not
necessarily the same for every participant." U.S.S.G.

25
change in the substantive meaning of the Guidelines.

Second, Carrillo asserts that an amendment to the commentary

of section 2D1.1 could affect his sentence. This comment provides:

"[W]here the court finds that the defendant did not
intend to produce and was not reasonably capable of
producing the negotiated amount, the court shall exclude
from the guideline calculation the amount that it finds
the defendant did not intend to produce and was not
reasonably capable of producing." U.S.S.G. § 2D1.1,
comment. (n. 12) (1992).

Again, however, Carrillo has ignored the fact that the same

provision was present, verbatim, in the commentary to section 2D1.4

of the 1991 Guidelines. The 1991 version of section 2D1.4,

governing attempts and conspiracies, was deleted and its provisions

moved to the commentary to section 2D1.1 in the 1992 Guidelines.

Finally, Carrillo claims that his sentence should be reviewed

in light of amendments to the commentary to section 3E1.1,

governing acceptance of responsibility. Application Note One to

section 3E1.1 was amended in 1992 to provide that a defendant is

not required to volunteer or affirmatively admit relevant conduct

beyond the offense of conviction to be eligible for a reduction of

offense level for acceptance of responsibility. U.S.S.G. § 3E1.1,

§ 1B1.3, comment. (n.1) (1991).

The changes in the 1992 commentary were cosmetic only and did not
affect the meaning of the note:

"Because a count may be worded broadly and include the
conduct of many participants over a period of time, the
scope of the criminal activity jointly undertaken by
the defendant (the 'jointly undertaken criminal
activity') is not necessarily the same as the scope of
the entire conspiracy, and hence relevant conduct is
not necessarily the same for every participant."
U.S.S.G. § 1B1.3, comment. (n.2) (1992).

26
comment. (n. 1(a)). This provision, unlike the other two discussed

above, was not previously part of the Guidelines. Unfortunately

for Carrillo, however, this amendment provided a substantive change

to, as opposed to a mere clarification of, the affected guideline.

See United States v. Aguilera-Zapata, 901 F.2d 1209, 1213-1214 (5th

Cir. 1990). Even if we were to consider retroactive application,

Carrillo has not demonstrated that he would be entitled to a

reduction for acceptance of responsibility under either version of

the guideline.

Despite Carrillo's claim to the contrary, the district court

properly applied the Guidelines as they were in effect at the time

of his sentencing.

Conclusion

For the reasons stated above, the convictions and sentences of

all four defendants are

AFFIRMED.

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