IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 6, 2009
No. 08-41052
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NOE GARCIA MENDOZA,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
Before JONES, Chief Judge, SMITH and DeMOSS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Noe Mendoza was convicted of conspiracy to possess with intent to manu-
facture and distribute methamphetamine in the Eastern District of Texas (the
“Eastern district”) and elsewhere, in violation of 21 U.S.C. § 846. He appeals his
conviction and sentence. Finding no error, we affirm.
No. 08-41052
I. Factual and Procedural Background
On November 5, 2005, law enforcement officers working with the Drug En-
forcement Administration task force in Shreveport, Louisiana, arrested Leroy
Pena at a motel. During a consensual search of the hotel room, the officers
found 160 grams of methamphetamine in a sock in the bathroom.
Pena agreed to identify his source, made five calls to Mendoza, and identi-
fied Mendoza as his source of supply from a photo line-up. Pena met Mendoza
for the first time in the summer of 2005 but began receiving methamphetamine
from him in mid-2004 through Elvis Grimes. During that business relationship,
either Pena would pick up methamphetamine from Mendoza in Dallas, or Men-
doza would deliver the drugs to Pena in Louisiana. The day before his arrest,
Pena met Mendoza in Canton, Texas. Pena traveled from there, along with Men-
doza’s brother Benito, to the motel in Shreveport where he and Benito were ar-
rested.
Grimes began selling drugs in 2002, met Pena in 2003, and formed a busi-
ness relationship for the supply of methamphetamine with Mendoza in mid-
2004. Grimes would transport the contraband from Dallas to Louisiana, where
he would deliver it to Bobby Huck at Huck’s house in Shreveport. Mendoza
would accompany Grimes on the trip from Dallas to Shreveport on almost every
occasion. During the time he was receiving methamphetamine from Mendoza,
Grimes sold to customers who lived in Wylie and Princeton, Texas. Grimes es-
timated he purchased up to one hundred pounds of methamphetamine from
Mendoza during the course of their relationship.
At trial, Fabian Garcia testified that from 1999 until 2000, he sold Men-
doza a total of ten kilograms of cocaine. Mendoza objected to the admission of
that extrinsic evidence under Federal Rule of Evidence 404(b). He argued that
the evidence of previous drug transactions was irrelevant and severely prejudi-
cial. The district court overruled the objection and gave a careful limiting in-
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No. 08-41052
struction to the jury.
At the close of the government’s case, Mendoza moved for acquittal, claim-
ing that the government had not provided any evidence that the conspiracy al-
leged in the indictment had occurred in the Eastern District or that Mendoza
was involved in the conspiracy. The district court denied the motion and found
that venue had been established by a preponderance of the evidence. Mendoza
also moved for a jury instruction on venue, which the court denied.
At sentencing, the court stated that it had fully considered 18 U.S.C.
§ 3553(a) in fashioning a sentence that was sufficient but not greater than nec-
essary to comply with all the purposes of sentencing. The court sentenced Men-
doza to 360 months, the minimum guideline sentence for an offense level of 42
and criminal history category of V. The court arrived at its calculation after con-
sidering the presentence report, and Mendoza explicitly stated he had no objec-
tion to the calculation.
Mendoza asked for a lower sentence on two grounds. He argued that his
sentence was significantly higher than that of his co-defendants. The court con-
sidered but rejected that argument. Mendoza then asked the court to exercise
its discretion in issuing a sentence below the guideline range, but the court ruled
that the guideline range provided the appropriate sentence.
II. Sufficiency of the Evidence To Establish Venue for Count One
Mendoza contends that the government presented insufficient evidence to
establish his involvement in a conspiracy in the Eastern District. In other
words, he argues that the government did not present sufficient evidence of ven-
ue for Count One, so he should be acquitted.
We review the denial of a motion for judgment of acquittal de novo. United
States v. Sanchez, 961 F.2d 1169, 1180 (5th Cir. 1992). We will affirm a verdict
if, viewing all the evidence in the light most favorable to the government, a ra-
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No. 08-41052
tional jury could conclude, from the evidence presented at trial, that the govern-
ment established venue by a preponderance of the evidence. Jackson v. Virginia,
443 U.S. 307, 319 (1979).
“When an offense is begun in one district and completed in another, venue
is proper in any district in which the offense was ‘begun, continued, or complet-
ed.’” United States v. Fells, 78 F.3d 168, 170 (5th Cir. 1996) (quoting 18 U.S.C.
§ 3237(a)). Venue can be based on evidence of any single act that initiated, per-
petuated, or completed the crime, id. at 171, and circumstantial evidence suffices
to establish venue, United States v. Loe, 248 F.3d 449, 463 (5th. Cir. 2001).
As can be deduced from the above, the venue inquiry is intimately tied to
the offense charged. United States v. Strain, 396 F.3d 689, 693 (5th Cir. 2005).
Mendoza was indicted under 21 U.S.C. § 846 for conspiracy to possess with
intent to manufacture and distribute methamphetamine in the Eastern District
and elsewhere. Thus, the issue we must address is whether a reasonable jury
could conclude, on the basis of the government’s evidence, that Mendoza partici-
pated in a conspiracy to manufacture and distribute methamphetamine that
“was begun, continued, or completed” in the Eastern District.
“In cases involving conspiracy offenses, venue is proper in any district
where the agreement was formed or an overt act occurred.” United States v.
Caldwell, 16 F.3d 623, 624 (5th Cir. 1994) (citations omitted). The record,
viewed in the light most favorable to the government, demonstrates that several
overt acts occurred in the Eastern District.
Firstly, the record shows a pattern of drug trafficking between Dallas and
Shreveport, which are connected via Interstate 20. The distance is less than 200
miles; the route passes directly through the Eastern District. Traveling from
Dallas to Shreveport without passing through the Eastern District would be a
quixotic endeavor for anyone, much less drug traffickers facing innumerable
risks of apprehension: One would have to drive west from Dallas to Fort Worth,
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No. 08-41052
north into Oklahoma, east into Arkansas, then south into Louisiana, a total of
well over 700 miles. The circumstantial evidence in the record supports the
inference that Mendoza’s co-conspirators traveled through the Eastern District
while transporting methamphetamine from Dallas to Shreveport. The govern-
ment in closing explained this reasoning to the jury as “common sense.” (R. 998).
And as we stated earlier, a jury may infer venue from circumstantial evi-
dence in the record as a whole. United States v. White, 611 F.2d 531, 534-35 (5th
Cir. 1980). A reasonable jury, by a preponderance of the evidence, could con-
clude that Mendoza and his co-conspirators regularly transported contraband
through the Eastern District. That conclusion alone would support venue, for
one co-conspirator’s travel through a judicial district in furtherance of the crime
alleged establishes venue as to all co-conspirators.1
Secondly, Leroy Pena testified that he met Mendoza in Canton, Texas, on
November 4, 2005, and drove from Canton to Shreveport on November 5.
(R. 649). Canton is in the Eastern District. Pena testified that Mendoza was his
supplier and that he distributed two to three pounds of Mendoza’s supply in Lou-
isiana per week. (R. 645). On November 5, the day Pena left Canton, he was ar-
rested in a hotel room in Shreveport with more than half a pound of metham-
phetamine. In the context of Pena’s testimony as a whole, a rational jury could
conclude, by a preponderance of the evidence, that the Canton meeting was an
act in furtherance of the offense charged.
Finally, Elvis Grimes testified that he sold to customers who lived in Wylie
and Princeton, Texas, in the Eastern District. (R. 743, 749). Grimes estimated
that he bought up to one hundred pounds of methamphetamine from Mendoza
during the course of their business relationship. (R. 731). A reasonable jury
1
See United States v. Davis, 666 F.2d 195, 200 (5th Cir. 1982) (concluding that suffi-
cient basis for venue existed as to § 846 conspiracy count because defendant’s co-conspirator
traveled through Middle District of Georgia on the way to obtaining contraband in Florida).
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No. 08-41052
could conclude, on the basis of this evidence, that an overt act in furtherance of
the charged conspiracy occurred in the Eastern District.
Mendoza argues there is insufficient evidence of his involvement in the
charged conspiracy. That argument is meritless. For conspiracy convictions un-
der 21 U.S.C. § 846, the government must prove beyond a reasonable doubt
“(1) the existence of an agreement between two or more persons to violate nar-
cotics law; (2) the defendant’s knowledge of the agreement; and (3) the defen-
dant’s voluntary participation in the agreement.” United States v. Gonzales, 76
F.3d 1339, 1346 (5th Cir. 1996). Pena identified Mendoza from a photo-line-up
as his supplier. (R. 652). He routinely traveled to Dallas to pick up metham-
phetamine from Mendoza, (R. 642-44), or Mendoza would deliver it to him in
Louisiana. (R. 644). The extensive evidence in the record adequately supports
the jury’s finding that Mendoza was in knowing agreement with Pena and others
to distribute methamphetamine and that he voluntarily participated in that
agreement.
III. Refusal To Instruct on Venue
Mendoza moved for a jury instruction on venue, which the district court
denied, reasoning that because Mendoza had not offered any contradictory testi-
mony on venue, a jury instruction was inappropriate. (R. 948). “[F]ailure to in-
struct on venue is reversible error when trial testimony puts venue in issue and
the defendant requests the instruction.” White, 611 F.2d at 536-37. We have al-
ready concluded that the government presented more than adequate evidence
of venue. Mendoza provided no controverting evidence on the issue. Under such
circumstances, venue was not “in issue” under White. Caldwell, 16 F.3d at 625.
IV. § 3553 Sentencing Factors
Mendoza urges that the district court erred by not discussing the sentenc-
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No. 08-41052
ing factors enumerated in 18 U.S.C. § 3553(a). Specifically, Mendoza challenges
the sentencing disparity among co-defendants, an objection he raised in the dis-
trict court. (R. 1021).
Our review of sentencing decisions for procedural error, such as failure to
consider § 3553 factors, is de novo. United States v. Duhon, 541 F.3d 391, 395
(5th Cir. 2008). Where, as here, a court imposes a sentence within the properly-
calculated guideline range, we “infer that the judge has considered all the factors
for a fair sentence.” United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005).
“[A] checklist recitation of the section 3553(a) factors is neither necessary nor
sufficient for a sentence to be reasonable.” United States v. Smith, 440 F.3d 704,
707 (5th Cir. 2006).
Section 3553 requires courts to consider “the need to avoid unwarranted
sentence disparities among defendants with similar records who have been
found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). The district court con-
sidered arguments as to possible sentence disparities among Mendoza and his
co-defendants. As the government pointed out, the co-defendants to whom Men-
doza compared himself had different criminal histories, received sentence reduc-
tions for their cooperation, and were involved with lesser amounts of metham-
phetamine. (R. 1023-24). The court explicitly stated that it had “fully consid-
ered all the purposes of sentencing set out in our statutes, among those . . .
Section 3553(a) in fashioning a sentence that is sufficient but not greater than
necessary to comply with all the purposes of sentencing.” (R. 1035-36).
The court exercised its discretion by adhering to the properly-calculated
guideline range and imposed a sentence of 360 months. The sentencing dispari-
ties among Mendoza and his co-defendants are not unwarranted, because many
defendants played a lesser role than did Mendoza, were involved with lesser
amounts, and received reductions for their cooperation. There is no error in the
court’s consideration of § 3553 factors.
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No. 08-41052
V. Substantive Reasonableness of the Sentence
Mendoza challenges the sentence as unduly harsh and therefore unreason-
able. That argument has no merit. We review the substantive reasonableness
of the sentence for abuse of discretion. Duhon, 541 F.3d at 395. The court im-
posed a sentence at the low end of the guideline range. The essence of Mendo-
za’s argument is that the court should have used its discretion to impose a lower
sentence outside the range because of § 3553 factors.
In Gall v. United States, 128 S. Ct. 586, 597 (2007), the Court stated that
“[i]f the sentence is within the Guidelines range, the appellate court may, but is
not required to, apply a presumption of reasonableness.” The only argument
Mendoza offers for a deviation below the range is that the objectives of § 3553
could possibly be met by a sentence of less than 360 months. He does not state
why the district court’s decision to adhere to the guidelines is unreasonable un-
der an abuse-of-discretion standard. There is no reason to disturb the sentence,
and we apply the presumption of reasonableness authorized by Gall. See United
States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir.), cert. denied, 129 S. Ct.
624 (2008).
VI. Admission of Prior Bad Acts Evidence Under Rule 404(b)
The district court allowed evidence of Mendoza’s past drug trafficking ac-
tivity pursuant to rule 404(b). Mendoza argues this was error. We cannot agree.
Rule 404(b) prohibits propensity evidenceSSevidence of defendant’s
prior bad acts intended to show that his conduct in the present case was in con-
formity therewith. Such evidence is admissible, however, for limited purposes.
Accordingly, we must determine whether the evidence of Mendoza’s previous
drug trafficking activity is relevant to an issue other than his character and
whether its probative value is not substantially outweighed by the danger of un-
fair prejudice. United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en
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No. 08-41052
banc). We review evidentiary rulings for abuse of discretion. United States v.
Booker, 334 F.3d 406, 411 (5th Cir. 2003).
The extrinsic-offense evidence is relevant to the issue of intent. “The mere
entry of a not guilty plea in a conspiracy case raises the issue of intent sufficient-
ly to justify the admissibility of extrinsic offense evidence.” Id. (citing United
States v. Broussard, 80 F.3d 1025, 1040 (5th Cir. 1996)). Therefore, the extrinsic
evidence is relevant to an issue other than Mendoza’s character.
To determine whether the probative value of the evidence outweighed the
possible prejudice to Mendoza, we must make a “commonsense assessment of all
the circumstances surrounding the extrinsic offense.” Beechum, 582 F.2d at 914.
We consider several factors, including the extent to which unlawful intent was
established by other evidence, the similarity between the extrinsic and charged
offenses, and the amount of time separating the two offenses. Id. at 915.
The district court carefully weighed the probative value against the risk
of prejudice. (R. 895-96). Our commonsense assessment of the circumstances
confirms the district court’s decision. As already stated, Mendoza put his intent
at issue at arraignment. Evidence of his involvement in another conspiracy to
distribute a controlled substance was necessary to establish intent, an essential
element of the conspiracy offense. See United States v. Thomas, 348 F.3d 78, 86
(5th Cir. 2003) (stating that intent is material to drug trafficking prosecutions).
And the evidence was highly relevant: The prior conduct involved a conspiracy
to sell a controlled substance 2 and occurred five years before the charged offense,
a close enough temporal interval for rule 404(b) purposes.3 In any case, the court
2
The government offered the testimony of Fabian Garcia, who stated that from 1999
until 2000 he regularly sold cocaine to Mendoza in distributable quantities.
3
We have upheld the admission of far older extrinsic evidence under rule 404(b). See
United States v. Arnold, 467 F.3d 880, 885 (5th Cir. 2006) (citing cases upholding admission
of evidence as old as eighteen years). Moreover, admission of five-year-old evidence in drug
(continued...)
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No. 08-41052
gave a careful limiting instruction; such an instruction will greatly minimize any
risk of undue prejudice posed by the admission of extrinsic evidence. United
States v. Crawley, 533 F.3d 349, 355 (5th Cir.), cert. denied, 129 S. Ct. 522
(2008). Accordingly, there is no error in the admission of evidence of Mendoza’s
prior drug-trafficking conviction.
In summary, the district court carefully considered every issue raised by
Mendoza on appeal. The record reflects the court’s diligence, and the law sup-
ports its conclusions. The judgment of conviction and sentence is AFFIRMED.
3
(...continued)
trafficking cases is by no means uncommon. See, e.g., United States v. Smith, 228 F. App’x
383, 388 (5th Cir. 2007).
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