United States v. Arnold

United States Court of Appeals
Fifth Circuit
F I L E D
In the July 5, 2005
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________

m 04-10435
_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

EDDIE ARNOLD,

Defendant-Appellant.

_________________________

Appeal from the United States District Court
for the Northern District of Texas
______________________________

Before GARWOOD, SMITH, and CLEMENT, substance containing a detectible amount of
Circuit Judges. methamphetamine, in violation of 21 U.S.C.
§ 846. The government’s star witness was one
JERRY E. SMITH, Circuit Judge: of Arnold’s co-defendants, Clint McMillan,
who testified that they had agreed to buy and
Eddie Arnold challenges his conviction of sell methamphetamine for profit. McMillan
and sentencing for his participation in a meth- stated they obtained the drugs from Steven
amphetamine narcotics conspiracy. Finding no O’Neal, and Arnold’s residence was used to
error, we affirm. hide the drugs. They did four to six deals to-
gether, involving a total of approximately five
I. pounds of methamphetamine.
Arnold was indicted for his alleged partici-
pation in a narcotics distribution conspiracy McMillan testified that on November 26, he
involving 500 grams or more of a mixture of a drove with Arnold to the hotel where O’Neal
was staying and that he met with O’Neal alone ements of the underlying charge of possession
while Arnold remained in McMillan’s vehicle. of methamphetamine with the intent to distrib-
After obtaining approximately a pound of ute charge under 21 U.S.C. § 841(a)(1):
methamphetamine and some marijuana,
McMillan returned to his truck and either For you to find the defendant guilty of this
concealed the drugs under the cup holder in crime, you must be convinced that the gov-
the center console himself, or gave them to ernment has proved each of the following
Arnold to put away. beyond a reasonable doubt:

Surveillance officers observed McMillan’s First: That the defendant knowingly pos-
drug buy and advised another officer to stop sessed a controlled substance;
McMillan’s truck. After the officer turned on
his siren, McMillan drove another two miles Second: That the substance was in fact
while he and Arnold discussed what they were methamphetamine; and
going to doSSincluding a possible plan for Ar-
nold to run into the adjacent woods to dispose Third: That the defendant possessed the
of the narcotics. The officer observed that methamphetamine with the intent to dis-
McMillan and Arnold appeared very nervous tribute it.
after the stop. After arresting McMillan, the
officer searched the truck and discovered the The quantity of drugs involved was not men-
narcotics under the center console. tioned until the very end, in a different sec-
tionSSoutside the description of a § 841(a)(1)
The district court instructed the jurors on chargeSSin which the court stated:
the elements of a controlled substances con-
spiracy under § 846: If you find the defendant guilty of the One
Count indictment, you must respond to
For you to find the defendant guilty of this some questions to decide whether the
crime, you must be convinced that the gov- crimes involved certain quantities of drugs
ernment has proved each o f the following which are referred to in the criminal statute.
beyond a reasonable doubt:
In answering these questions, as in deciding
First: That two or more persons, directly or your verdict, you must be unanimous, and
indirectly, reached an agreement to possess in order to decide that the count involved a
with intent to distribute methamphetamine; certain quantity of drugs you must be satis-
fied that the government has proven that
Second: That the defendant knew of the quantity by proof beyond a reasonable
unlawful purpose of the agreement; and doubt. The term quantity means the total
weight of any mixtures or substances which
Third: That the defendant joined in the contain a detectable amount of the drug
agreement wilfully, that is, with the intent charged. In making this decision, you
to further its unlawful purpose. should consider all drugs which members of
the conspiracy actually distributed or in-
After explaining some other details regarding tended t o distribute as part of the alleged
a conspiracy charge, the court set forth the el- conspiracy.

2
 The last sentence in the quantity instruction his objection.
initially read: “In making this decision, you
should consider all drugs which members of The verdict form included three interroga-
the conspiracy actually distributed or intended tories. In the first, the jury indicated that it
to distribute,” omitting “as part of the alleged found Arnold “guilty” of the offense charged
conspiracy” at the end. Arnold objected, wish- in count 1 (the § 841(a)(1) conspiracy
ing for the instruction to include reference to charge). The second asked that if the jury
the indictment,1 because he was worried about found in the first question that Arnold was
the jury’s considering evidence that was pre- guilty, if they then “unanimously agree, by
sented regarding drug transactions outside of proof beyond a reasonable doubt, that the
the conspiracy that was found to be admissible quantity of methamphetamine which was dis-
under Federal Rule of Evidence 404(b). tributed and/or distributed as part of the con-
spiracy was 500 grams or more.” The jury
The government acknowledged that the checked “No.” The last question inquired: “If
similar-acts evidence was outside the scope of you do not find that the quantity of metham-
conspiracy and not to be considered by the phetamine which was manufactured, distrib-
jury. The government expressed concern, uted and/or intended to be distributed as part
however, that the modification requested by of the conspiracy was 500 grams or more,
Arnold might mislead the jury into thinking what quantity do you find was proven beyond
that it could consider only the drug quantities a reasonable doubt?” The jury wrote “456.88
alleged in the overt-acts portion of the indict- grams” in the blank that followed.
ment. The government considered such a
reading to be incorrect, because the jury could Based on the jury’s findings, the court en-
consider any drug quantitiesSSeven if not al- tered a judgment of conviction for a metham-
leged in the indictment SSso long as it found phetamine distribution conspiracy involving
beyond a reasonable doubt that they were part fifty grams or more. The court denied Ar-
of the conspiracy. nold’s motion for a new trial under Federal
Rule of Criminal Procedure 33(a), and sen-
The court rejected the specific wording tenced Arnold to sixty-three months’ impris-
suggested by Arnold, but noting the concern onment.
Arnold had expressed, the court appended the
words “as part of the alleged conspiracy” to II.
the end of the instruction.2 Arnold preserved Arnold brings two challenges to the in-
structions. He alleges that the district court
erred by (1) not including lesser-included of-
1
Arnold wished for the instruction to read as fenses in the jury charge and (2) omitting
follows: “In making this decision, you should con- language stating that drug quantities should be
sider all drugs which members of the conspiracy found “as alleged in the indictment.” We ex-
actually distributed or intended to distribute, as amine each in turn.
alleged in the indictment.”
2
The court stated that its goal was to “find
some language that, as [the defendant was] talking
2
about, cabins this to what’s alleged in the indict- (...continued)
(continued...) ment without restricting it to the overt acts.”

3
 A. to the form of the instruction broadly dealt
Arnold argues that the district court erred with the issue of drug quantities, and different
in not including instructions on lesser-included quantity findings support different lesser-
offenses, including (1) conspiracy to possess included offenses, the objection that was made
with the intent to distribute at least fifty grams sought to narrow the grounds for conviction
of a mixture of a substance containing a de- (by adding the limiting language “as alleged in
tectible amount of methamphetamine, 21 the indictment”), whereas a request for lesser-
U.S.C. § 841(b)(1)(B)(viii); (2) conspiracy to included offenses seeks to broaden grounds for
possess with the intent to distribute less than conviction by giving the jury more options for
fifty grams of a mixture of a substance con- returning a guilty verdict.
taining a detectible amount of methamphet-
amine, id. § 841(b)(1)(C); or (3) simple pos- Under the plain error standard, we may not
session of a controlled substance, id. § 844(a). correct an error that the defendant failed to
We address that contention below. raise unless “there is (1) error, (2) that is
plain, and (3) that affects substantial rights.”
1. United States v. Cotton, 535 U.S. 625, 631
The parties dispute the standard of review (2002) (internal citations omitted). “If all
applicable to this challenge. Arnold asserts he three conditions are met an appellate court
properly objected, so we should review the de- may then exercise its discretion to notice a
nial of the lesser-included offenses for abuse of forfeited error but only if (4) the error seri-
discretion; the government reasons that we ously affects the fairness, integrity or public
should review for plain error because Arnold reputation of judicial proceedings.” Id. (inter-
did not adequately object. Arnold claims he nal citations omitted).
objected when he requested that the charge
require the jury to find quantity “as alleged in 2.
the indictment.” Although he acknowledges “We consider whether the jury instruction,
that the request “did not specify the remedy of taken as a whole, is a correct statement of the
lesser included instructions,” he claims we law and whether it clearly instructs jurors as to
should construe it as such because the chal- the principles of law applicable to the factual
lenge would have “brought the issue of lower issues confronting them.” United States v.
offenses to the trial court’s attention.” Guidry, 406 F.3d 314, 321 (5th Cir. 2005)
(citing United States v. Daniels, 281 F.3d 168,
We side with the government on this stan- 183 (5th Cir. 2002)). The denial of a re-
dard-of-review issue, so we review for plain quested jury instruction amounts to reversible
error, because Arnold’s objection was not error only if three conditions are met:
specific enough to bring this alleged error to “(1) [T]he [requested] instruction is substan-
the court’s attention.3 Although the objection tively correct ; (2) it is not substantially cov-

3 3
See United States v. Krout, 66 F.3d 1420, (...continued)
1434 (5th Cir. 1995) (finding that an imprecise ob- standard where defendant objected to instruction
jection is insufficient to preserve claimed error for before district court on different grounds, noting
review); United States v. Heath, 970 F.2d 1397, that “[a] party may not state one ground when
1407 (5th Cir. 1992) (reviewing under plain error objecting to an instruction and attempt to rely on a
(continued...) different ground for the objection on appeal”).

4
ered in the charge actually given to the jury; B.
and (3) it concerns an important point in the Arnold claims the district court erred by
trial so that failure to give it seriously impairs omitting instructions from the charge that
the defendant’s ability to present a given de- quantities should be found “as alleged in the
fense effectively.” United States v. Hunt, 794 indictment.” Because Arnold properly object-
F.2d 1095, 1097 (5th Cir. 1986). ed to the refusal to give the instruction, we re-
view for abuse of discretion. See Guidry, 406
The first prong of the Hunt test is not con- F.3d at 321; see also Daniels, 281 F.3d at
tested; the government concedes that Arnold 183.
was eligible to be convicted of a lesser-in-
cluded offense (for, after all, he was found to Arnold wanted the court to instruct the jury
be convicted on a lesser-included offense than to consider all drugs that members of the
that for which he was indicted). Lesser-in- conspiracy distributed or intended to distribute
cluded offense instructions are substantively “as alleged in the indictment” instead of the
correct in this case. language the court used, “as part of the alleged
conspiracy.” In the district court, Arnold as-
Arnold’s claim fails, however,4 because the serted that his requested language was neces-
charge given did in fact substantially cover Ar- sary because otherwise, in reaching its deter-
nold’s eligibility to be convicted of a lesser-in- mination of quantity, the jury might prejudi-
cluded offense. The lesser-included offenses cially consider similar acts evidence of drug
for which Arnold claims eligibility involve transactions outside of the charged conspiracy
lower amounts of drugs attributable to the
scope of the conspiracy, and that was ade-
5
quately addressed by the special interrogatory (...continued)
that asked the jury to indicate the total amount the exact quantity of the controlled substance
of drugs it believed were shown, beyond a rea- need not be determined so long as the jury
sonable doubt, to be within the scope of the establishes a quantity at or above a given base-
line amount in the appropriate subsection of §
conspiracy. This approach SSusing a special
841(b). For example, in a marijuana case, if
interrogatory to determine drug quantitySSis the amount is determined to be at least 100
endorsed in the note to Fifth Circuit Pattern kilograms, the maximum sentence would be the
Instruction § 2.89, and we find its use appro- same for any amount up to 999 kilograms.
priate.5 However, if there is a fact dispute as to whether
the amount is above or below a particular
baseline (e.g., 100 kilograms of marijuana
4 versus 99 kilograms), the court may consider
Because Arnold’s claim fails at this level, we
do not need to consider the third prong of the Hunt submitting the higher amount in the fourth
test. element, accompanied by a Lesser Included Of-
fense instruction, No. 1.33, for the lower
5
According to the note, amount. Alternatively, the court may sub-
stitute for the fourth element a special inter-
[t]he fourth element, prompted by the Apprendi rogatory on the verdict form asking the jury to
doctrine, is required when the indictment alleges determine the exact amount of the controlled
a quantity that would result in an enhanced substance.”
penalty under 21 U.S.C. § 841(b). Generally,
(continued...) (Emphasis added.) (Internal citations omitted.)

5
that was admissible under rule 404(b) for A.
showing motive, knowledge or intent. Arnold argues that the court erred in enter-
ing a conviction for conspiracy to possess with
Although Arnold is correct in noting that intent to distribute at least fifty grams of a
the jury could not consider quantities outside mixture of a substance containing a detectible
the conspiracy alleged in the indictment, his amount of methamphetamine, where (1) a con-
concern was adequately and substantially cov- spiracy to distribute at least 500 grams was al-
ered by the instruction’s limitation that only leged in the indictment; (2) the jury explicitly
quantities the jury found beyond a reasonable found that the government had failed to prove
doubt to be “part of the alleged conspiracy” beyond a reasonable doubt that more than 500
could be considered. In fact, the instruction grams were attributable to the alleged conspir-
eliminated the risk, highlighted by the govern- acy; and (3) there was lack of an instruction
ment before the district court, of confusing the for the lesser-included offense of which Arnold
jury into thinking it was cabined into consider- was ultimately convicted. Arnold concedes
ing only the specific drug quantities mentioned that we review his claim for plain error, be-
in the overt acts section of the indictment, cause he did not object on these grounds.
contrary to law.6 Arnold’s proffered instruc-
tion appears only to be a small variance in Arnold’s claim fails, because as we have
word choice from that given by the district discussed, the lesser-included offenses were
court and is not error.7 necessarily included in the jury charge through
the special interrogatory that asked the jury to
III. declare the amount of methamphetamine it be-
Arnold brings two challenges to the specific lieved the government had proved, beyond a
conviction that the district court adjudged reasonable doubt, was part of the alleged con-
after it received the completed jury verdict spiracy. The jury returned a finding of
form. He contends the court erred by (1) “456.88 grams,” which obviously is greater
convicting and imposing sentence for a lesser- than 50 grams. The district court did not err
included offense that was not submitted to the in entering a conviction for at least fifty grams,
jury; and in the alternative, (2) failing to enter because the jury plainly found that the govern-
conviction and assess punishment at the maxi- ment had proved the elements of the § 846
mum for the least severe offense, because the conspiracy beyond a reasonable doubt, includ-
verdict was ambiguous as to the offense of ing a finding that at least fifty grams were
conviction. We examine each in turn. involved in the underlying substantive nar-
cotics offense.

B.
6
United States v. Wilson, 657 F.2d 755, 763 Arnold alternatively argues that the court
(5th Cir. Unit A Sept. 1981) (“[T]he government is erred by failing to assess punishment for the
not limited in its proof of a conspiracy to the overt least severe offense because of alleged ambi-
acts alleged in the indictment.”). guity in the verdict as to the offense of convic-
7
See United States v. Hudson, 982 F.2d 160,
162 (5th Cir. 1993) (finding no error for the dis-
trict court to reject the exact requested wording
where the issue is already covered).

6
tion.8 We review for plain error because sentence, one year’s imprisonment for simple
Arnold did not object to this alleged error in possession of a controlled substance under
the district court. § 844(a).

Arnold claims that ambiguity exists because We reject this contention, because there is
of an inherent contradiction between the jury’s no inconsistency once the verdict form is
responses to the first two interrogatories. In closely scrutinized alongside the jury instruc-
response to the first question, the jury found tions. In explaining the elements of a § 841
Arnold “Guilty” of “the offense charged in offense, the court only enumerated three ele-
Count 1.” Count 1 alleged a conspiracy “to ments in the jury charge:
distribute five hundred (500) grams or more”
of methamphetamine, so Arnold contends that First: That the defendant knowingly pos-
the response to the first interrogatory included sessed a controlled substance;
as a necessary jury finding that at least 500
grams were found to be part of the conspiracy Second: That the substance was in fact
beyond a reasonable doubt, because the quan- methamphetamine; and
tity of drugs is an element of a § 841 offense.9
Third: That the defendant possessed the
methamphetamine with the intent to dis-
Then, Arnold points to the response to the tribute it.
second interrogatory, in which the jury indi-
cated that it did not find, beyond a reasonable Despite the fact that quantity is an element
doubt, that the quantity of methamphetamine of the offense under Doggett, the jury was not
that was distributed and/or intended to be dis- aware of that when it responded to the first
tributed as part of the conspiracy was 500 question, regarding whether Arnold was guilty
grams or more. Arnold asserts that this con- of being a member of a conspiracy to violate §
tradiction establishes ambiguity, and the court 841. Rather, the jury was instructed that the
should not have sentenced him to more than quantity of drugs was something that was to
the highest potentially applicable maximum be considered only after it determined guilt
under § 841.10

8
See United States v. Conley, 349 F.3d 837, Though the jury form and instructions were
840 (5th Cir. 2003) (“[W]here a jury verdict is am- incorrect to assert that Arnold was technically
biguous, a sentence imposed for a conviction on a guilty of violating § 841 without a finding re-
count charging violations of multiple statute or garding drug quantities beyond a reasonable
provisions of statutes may not exceed the lowest of doubt, the jury was not aware of this, which
the potentially applicable maximums . . . .”); see explains the alleged ambiguity. Reading the
also United States v. Cooper, 966 F.2d 936, 940
(5th Cir. 1992).
10
According to the jury instructions, “[i]f you
9
See United States v. Doggett, 230 F.3d 160, find the defendant guilty of the One Count indict-
164 (5th Cir. 2000) (holding that drug quantity ment, you must respond to some questions to de-
under § 841(b) is an element of a § 841 offense, cide whether the crimes involved certain quantities
despite Congressional intent otherwise, based upon of drugs which are referred to in the criminal stat-
Apprendi v. New Jersey, 530 U.S. 466 (2000)). ute.”

7
jury form in this light, the jury never made a To establish a narcotics conspiracy, the
finding, explicit or implicit, that the drug quan- government has the burden to prove the fol-
tity involved in the alleged conspiracy ex- lowing three elements beyond a reasonable
ceeded 500 grams; rather, it found (1) conspir- doubt: (1) an agreement between two or more
acy as to the first three elements of a § 841 persons to violate the narcotics laws; (2) the
offense in the first interrogatory; (2) that there defendant’s knowledge of the agreement; and
was not 500 grams or more of methamphet- (3) the defendant’s voluntary participation in
amine involved in the alleged conspiracy the conspiracy. United States v. Thomas, 348
through its response to the second interroga- F.3d 78, 82 (5th Cir. 2003), cert. denied, 540
tory; and (3) that there was at least 50 grams U.S. 1207 (2004). Arnold contests the suffi-
involved in the conspiracy by stating that the ciency of the evidence only as to the third
government had proved, beyond a reasonable element.
doubt, that 456.88 grams of methamphetamine
was attributable to the conspiracy. Arnold’s We reject Arnold’s claim, because the gov-
claim fails, because there is no ambiguity that ernment produced sufficient evidence that, if
the jury found that all four elements of a § 841 believed by the jury, demonstrated that he vol-
charge were proven for a methamphetamine untarily participated in the conspiracy. McMil-
conspiracy that involved at least 50 grams. lan testified that he agreed with Arnold to buy
methamphetamine from O’Neal and split the
IV. profits. He also testified that as they were
Arnold brings two challenges to the suffi- being stopped by the authorities, they plotted
ciency of the evidence. He asserts (1) that he about hiding the drugs. Other circumstantial
is entitled to a judgment of acquittal because evidence supported Arnold’s voluntary partic-
the evidence was insufficient to prove a con- ipation in the charged narcotics conspiracy.
spiracy; or alternatively (2) that he is entitled Patrick Combies testified that McMillan gave
to a new trial based on his claim that the money to Arnold and that Arnold urged Mc-
weight of the evidence does not support his Millan to get up and “get this taken care of”
conviction. on the morning of the day of their arrest.

A. Arnold is correct to assert that mere pres-
Arnold argues that the evidence was insuf- ence and nervousness are insufficient to estab-
ficient to support his conviction of conspiracy lish voluntary participation in a conspiracy,11
to possess with intent to distribute a controlled but the evidence indicated more than that.
substance under § 846. In resolving a suffi- McMillan testified that he and Arnold had an
ciency of the evidence claim, we must decide explicit agreement to procure and sell meth-
whether a rational trier of fact could have amphetamine, which, alongside the other evi-
found that each element of the charged crimi- dence regarding Arnold’s presence and behav-
nal offense was proven beyond a reasonable ior, was sufficient to prove that an illicit agree-
doubt. See United States v. Ortega Reyna,
148 F.3d 540, 543 (5th Cir. 1998). We con-
sider all the evidence in a light most favorable
to the government, drawing all inferences and 11
See United States v. Tenorio, 360 F.3d 491,
credibility choices in its favor. Id. 495 (5th Cir.), cert. denied, 124 S. Ct. 2899, and
cert. denied, 124 S. Ct. 2900 (2004).

8
ment existed.12 McMillan’s testimony.

Arnold argues that the jury found that the Arnold also contends we should disregard
evidence only demonstrated presence and McMillan’s testimony because he was a co-de-
knowledge of the conspiracy, pointing to a fendant whose testimony was directly con-
question submitted by the jury asking whether tradicted by other evidence. As long as it is
knowledge alone is sufficient to establish a not factually impossible or incredible, co-con-
conspiratorial agreement. The fact that the spirator testimony is acceptable, even standing
jury submitted this question does not, how- alone, to support a verdict.14
ever, show that the jury found that the evi-
dence only demonstrated knowledge and pres- Arnold asserts that McMillan’s testimony
ence, because the jury was then correctly in- about the method of storing the methampheta-
structed on the requirements for finding a con- mine (placing it under the console through the
spiratorial agreement.13 After being properly cupholder) was shown to be factually impossi-
instructed on the law, we assume the jury ble based on an alleged obstruction demon-
obeyed its duty to find that all the elements strated in videotape evidence. The district
were satisfied beyond a reasonable doubt, court, however, explicitly found that the vid-
including the agreement element, which could eotape did not conclusively demonstrate that
have been found by a rational jury based on such an obstruction existed.

Evidence that may cast doubt on the cred-
12
Id. (“An agreement may be inferred from a ibility of testimony does not render it factually
concert of action, and presence along with other impossible, and it is the province of the jury to
evidence can be relied on to find conspiratorial ac- make such credibility determinations.15 More-
tivity by the defendant.”) (internal citations omit- over, even if Arnold is correct that evidence on
ted). the record plainly contradicts his testimony
13
about the method in which the drugs were
In response to the question, the jury was dir-
concealed in the vehicle, that only dealt with
ected to the original jury instructions, a response
that is acceptable if it contains an accurate state-
one small aspect of his incriminating testimony
ment of the law. See, e.g., United States v. Val- and does not negate his testimony regarding
diosera-Godinez, 932 F.2d 1093, 1098 (5th Cir. the previous agreement that was made jointly
1991) (finding that where court was assumed to to obtain methamphetamine, sell it, and split
have referred jury to accurate written charge in
response to question, conviction not infirm because
of alleged confusion). This is true here, where the 14
United States v. Medina, 161 F.3d 867, 872-
instructions stated that an element of the crime was 73 (5th Cir. 1998) (“As long as it is not factually
that “the defendant joined in the agreement wil- insubstantial or incredible, the uncorroborated
fully,” and noted that, “[m]ere presence at the testimony of a co-conspirator, even one who has
scene of the event, even with knowledge that a chosen to cooperate with the government in ex-
crime is being committed, or the mere fact that change for non-prosecution or leniency, may be
certain persons may have associated with each constitutionally sufficient evidence to convict”)
other and may have assembled together and dis- (internal citations omitted).
cussed common aims and interests, does not nec-
15
essarily establish proof of the existence of a con- See United States v. Schuchmann, 84 F.3d
spiracy.” 752, 756 (5th Cir. 1996).

9
the profits.16 The evidence is sufficient. stand.” Id.18

B. 1.
Arnold alternatively argues that even if the Arnold first argues that a new trial is war-
evidence could sufficiently support the verdict, ranted by pointing to evidence that casts doubt
he is nevertheless entitled to a new trial be- on McMillan’s inculpatory testimony. Al-
cause the verdict was so irrational that it gives though this argument might have been appro-
rise to a manifest injustice. We review the priate in the district court in connection with a
denial of a new trial for abuse of discretion.17 rule 33 new trial motionSSbecause that court
has the authority to make its own determina-
A court may grant a new trial if it is re- tion regarding the credibility of witnessesSSit
quired in the interests of justice. See FED. R. is inappropriate in this court, because we do
CRIM P. 33(a). The trial judge may weigh the not have such authority on appellate review.19
evidence and assess the credibility of the wit- The district court did not abuse its discretion
nesses in considering the motion. See Robert- by accepting the jury’s assessment of the cred-
son, 110 F.3d at 1117 (citing Tibbs v. Florida, ibility of the witnesses to deny a new trial on
457 U.S. 31, 37-38 (1982)). Although a dis- the ground that the verdict was against the
trict court has broad discretion, it is not limit- weight of the evidence. See Dula, 989 F.2d at
less, and it “may not reweigh the evidence and 779.
set aside the verdict simply because it feels
some other result would be more reasonable.” 2.
Id. at 1118. “The evidence must preponderate Next, Arnold proceeds to present a list of
heavily against the verdict, such that it would four “peculiar” factors that are part of the
be a miscarriage of justice to let the verdict reco rd on appeal and that he believes estab-

16
Arnold argues that the fact that the jury re-
18
sponded to the interrogatory regarding the amount See United States v. Sinclair, 438 F.2d 50,
of drugs attributable to the conspiracy with the ex- 51 n.1 (5th Cir. 1971) (“[T]he power to grant a
act amount of methamphetamine located in the ve- new trial . . . should be invoked only in exceptional
hicle on the date of his arrest demonstrates that the cases in which the evidence preponderates heavily
jury did not believe that Arnold was part of the against the verdict.”).
narcotics conspiracy before that dateSSand thus the
19
only incriminating part of McMillan’s testimony United States v. Tarango, 396 F.3d 666, 672
that should be considered on our sufficiency review (5th Cir. 2005) (“In our capacity as an appellate
involves the actions on the date of arrest. This is court, we must not revisit evidence, reevaluate
incorrect; the fact that the jury may have found that witness credibility, or attempt to reconcile seem-
the government was only able to attribute, beyond ingly contradictory evidence”) (citing United States
a reasonable doubt, the drugs found at arrest to v. Dula, 989 F.2d 772, 778-79 (5th Cir. 1993)).
the conspiracy is not inconsistent with testimony This rule is sensible: The jury in the first instance,
that an agreement was formed at a previous date to and the district court on rule 33 review , were in
obtain and sell drugs. superior positions to evaluate the credibility of the
witnesses, because they were able to observe their
17
See United States v. Infante, 404 F.3d 376, demeanors. See United States v. Valentine, 401
387 (5th Cir. 2005); see also United States v. F.3d 609, 614 (5th Cir. 2005), cert. denied, 2005
Robertson, 110 F.3d 1113, 1118 (5th Cir. 1997). U.S. LEXIS 4707 (U.S. June 13, 2005).

10
lished the extraordinary circumstances that jus- Next, Arnold points to the fact that the jury
tify a new trial under rule 33(a). We examine was confused on the law of conspiracy as a
each in turn. result of its “futile” request for clarification
during deliberations. The assertion that the
First, Arnold thinks it peculiar that he was request was futile is without merit; the district
found guilty of the conspiracy charge; he court appropriately instructed the jury to look
claims the jury “obviously” did not believe the at the initial charge, which, as we have said,
“great majority” of McMillan’s testimony, as was sufficient. The court certainly did not
exhibited by (1) the quantity determination in abuse its discretion by denying a new trial on
the special interrogatory and (2) the fact that this gro und; it was not peculiar that the jury
the jury questioned his testimony about how asked for a clarification on an issue of law,
Arnold helped him conceal the drugs by revis- something it is entitled to do.
iting the videotape depicting where the drugs
were found. The fact that the jury answered Finally, Arnold asserts that the jury was
the special interrogatory with a drug quantity confused by the verdict form, as demonstrated
that only included the amount of drugs seized by the allegedly contradictory findings of guilt
at the time of arrest does not necessarily mean on the charged offense and a quantity finding
the jury discredited most of McMillan’s testi- corresponding to a lesser-included offense. As
mony; it rationally could have believed most of we have discussed, this assertion is without
the testimony but merely thought that the merit; the findings were not inconsistent when
government failed to prove beyond a reason- viewed in light of the context of the jury in-
able doubt the other quantities of drugs to structions. The district court did not abuse its
which McMillan testified, because the actual discretion in accepting the verdict and denying
drugs were not admitted as evidence, and Mc- a new trial.
Millan only gave an estimate as to the amount
of drugs that were involved in previous trans- V.
actions. Arnold claims his sentence is infirm under
United States v. Booker, 125 S. Ct. 738
Similarly, the fact that the jury closely scru- (2005). He concedes that we review this claim
tinized a certain piece of evidence is not pecu- for plain error, because he did not object on
liar; instead, it can be a sign that the jury was this ground.20
fulfilling its duty to review the evidence close-
ly. It does not undermine the ultimate finding The district court’s actions did not consti-
that Arnold was guilty beyond a reasonable tute Booker error at all, because Arnold’s sen-
doubt. tence was authorized solely based on facts
found by a jury beyond a reasonable doubt.
Second, Arnold states that McMillan’s tes- The district court did not engage in any fact-
timony claiming that he helped him conceal the finding that increased Arnold’s sentencing
drugs should be disregarded as factually im-
possible. This claim should be disregarded,
because as we have said, the district court did 20
See Guidry, 404 F.3d at 322 (reviewing
not abuse its discretion in finding that the vid-
Booker error under plain error standard where
eotape did not conclusively show that McMil- defendant failed to object on Apprendi/Blakely
lan’s testimony was factually impossible. Sixth Amendment grounds at sentencing).

11
range. The jury’s explicit finding that the con- (discussing the difference between Booker and
spiracy involved 456.88 grams of methamphet- Fanfan error).
amine authorized a base offense level of 30,
which was adopted by the court in calculating Assuming there is Fanfan error here, the
Arnold’s sentencing range. See U.S.S.G. § third prong of the plain-error test requires,
2D1.1(a), (c)(5).21 For there to be Sixth under Mares, that “the defendant rather than
Amendment error under Booker, the judge the government bears the burden of persuasion
must find facts not admitted by the defendant with respect to prejudice.” Mares, 402 F.3d at
or found by a jury beyond a reasonable doubt, 521 (citing United States v. Olano, 507 U.S.
that increases the maximum potential sen- 725, 734 (1993)).23 To show t hat his sub-
tence.22 stantial rights are affected, Arnold would have
to “point[] to . . . evidence in the record sug-
In the absence of Sixth Amendment error, gesting that the district court would have im-
the most that Arnold could properly argue is posed a lesser sentence under an advisory
that he nonetheless is entitled to be sentenced guidelines system.” United States v. Taylor,
under an advisory, instead of mandatory, 409 F.3d 675, 677 (5th Cir. 2005) (per
guideline regime. “Technically, this is a “Fan- curiam) (citations omitted). In other words,
fan error, not a Booker error.” United States “the pertinent question is whether [the defen-
v. Martinez-Lugo, 2005 U.S. App. LEXIS dant] demonstrated that the sentencing
10432, at *5 (5th Cir. June 7, 2005) (per judgeSSsentencing under an advisory scheme
curiam) (referring to Ducan Fanfan, the second rather than a mandatory oneSSwould have
defendant in the consolidated opinion in reached a significantly different result.”
Booker). See United States v. Villegas, 404 Mares, 402 F.3d at 521. To meet this stan-
F.3d 355, 364 (5th Cir. 2005) (per curiam) dard, the proponent of the error must demon-
strate a probability “sufficient to undermine
confidence in the outcome.” United States v.
21
Dominguez Benitez, 542 U.S. 74, __, 124 S.
The guidelines, U.S.S.G. § 2D1.1(c)(5), Ct. 2333, 2340 (2004).
authorize a base offense level of 30 where the
amount of methamphetamine is “[a]t least 350 G
but less than 500 G.”
23
A showing of prejudice is required, because
22
See, e.g., United States v. Mares, 402 F.3d we have determined that Booker error is not struc-
511, 520-21 (5th Cir. 2005) (finding Booker error, tural error that would require no showing of preju-
although not plain, where “[the defendant’s] sen- dice. United States v. Muhammad, 2005 U.S.
tence was enhanced based on findings made by the App. LEXIS 9078, at *3 (5th Cir. May 18, 2005)
judge that went beyond the facts admitted by the (per curiam) (unpublished). “[W]e reject [the]
defendant or found by the jury. The jury found argument that Booker error is structural and in-
that [the defendant], a felon, possessed ammuni- susceptible to harmless error analysis, and that
tion. The judge enhanced the sentence based on a Booker error should be presumed prejudicial, as
finding that his finding that [the defendant] was both claims are in conflict with Mares.” United
involved in a felony when he committed the of- States v. Malveaux, 2005 U.S. App. LEXIS 5960,
fense. [The defendant] has therefore established at * 4 n.9 (5th Cir. Apr. 11, 2005) (per curiam).
Booker error”), petition for cert. filed (Mar. 31, Neither Booker error nor Fanfan error is struc-
2005) (No. 04-9517); see also Guidry, 406 F.3d tural. Martinez-Lugo, 2005 U.S. App. LEXIS
at 323. 10432, at *8.

12
 Arnold has made no such showing, so the
prejudice prong is not satisfied. He points
only to stray remarks that show that the court
had some sympathy for his situation, but this
does not demonstrate that Arnold’s substantial
rights were affected by the imposition of sen-
tence under the mistaken understanding that
the guidelines were mandatory. His sentence
in fact was reduced from the applicable guide-
line range because the court found that he
played a minimal role in the offense.

AFFIRMED.

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