United States v. Partida

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
September 10, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk

No. 03-40781

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARCO ABEL PARTIDA and
GERARDO VIGIL,

Defendants-Appellants.

Appeals From the United States District Court
for the Southern District of Texas

Before DeMOSS, STEWART, and PRADO, Circuit Judges.

CARL E. STEWART, Circuit Judge:

This public integrity action involves an undercover reverse sting operation devised by

government agents to snare two former corrupt city police officers. Plaintiffs-appellants Marco Abel

Partida (“Partida”) and Gerardo Vigil (“Vigil”), on separate occasions, assisted in the transportation

of what they believed to be sizeable marijuana shipments through Donna, Texas. Following a jury

trial, Partida and Vigil were convicted of various crimes in connection with their drug trafficking
participation. On appeal, Partida and Vigil raise numerous challenges to their convictions and

sentences. For the reasons that follow, we affirm the judgment of the district court.

FACTUAL AND PROCEDURAL BACKGROUND

Beginning in 2001, the Federal Bureau of Investigation (“FBI”) began an investigation into

allegations of criminal activity within the Donna Police Department of Donna, Texas. The

government’s investigation focused on two former police officers, acting chief of police Partida and

patrol officer Vigil, after receiving information that those officers provided protection for drug

shipments through their patrol districts in exchange for money. The story of how these two former

police officers went astray began with the revelation of a long-term friendship between Partida and

reputed drug dealer, turned government informant, Rigoberto Quintanilla (“Quintanilla”).

In the spring of 1999, FBI agents learned that Partida and Quintanilla had close ties. While

Partida was a sheriff’s officer in Hidalgo County, Texas, Quintanilla served as a former sheriff’s

deputy in Hidalgo County. FBI agents also learned that law enforcement officer Partida and South

Texas drug dealer Quintanilla pursued trips to Atlanta, Georgia together. Additionally, Government

agents discovered that Partida and Quintanilla had been friends for years, and at one time, the two

men were even roommates.

In July 1999, FBI agents interviewed Partida at the Hidalgo County Sheriff’s Office. Partida

informed government agents that he knew Quintanilla had transported 200 pounds of marijuana to

Georgia. Partida also stated he had flown to Georgia to meet Quintanilla, at Quintanilla’s expense.

Upon Partida’s arrival at the airport, and while placing his bags in the trunk of Quintanilla’s vehicle,

Partida stated he could smell a strong odor of marijuana coming from the trunk, and air fresheners

in the trunk of the vehicle masking the odor. Partida also informed FBI agents that Quintanilla

2
showed him approximately $19,000 that he had amassed from transporting 200 pounds of marijuana

to Georgia. Until this interview, officer Partida had never disclosed this information. Shortly after

the interview, Partida resigned from the sheriff’s office and was hired as a patrol officer with the local

police department in the City of Donna, Texas.

In April of 1999, Quint anilla was identified by the government in connection with the

transportation of about 6,000 pounds of marijuana, which was seized at the Border Patrol checkpoint

in Falfurrias, Texas. Following his arrest, Quintanilla became a confidential source for the

government, and provided FBI agents with information about a number of individuals. Quintanilla

also informed government agents that he knew a patrol officer with the Donna Police Department,

who turned out to be Partida, interested in assisting the transportation of marijuana. Quintanilla told

FBI agents that Partida and another police officer had once stopped a vehicle transporting marijuana

through Donna. After a fellow officer took the driver to the police station, Partida and another police

officer unloaded some of the seized marijuana, hid it in a ditch, and returned to retrieve it later.

Quintanilla also informed agents that Partida had accompanied him on trips to Florida, while

Quintanilla picked up drug payments and Partida served as an escort.

With Quintanilla’s consent, FBI agents commenced a reverse sting operation centered around

Quintanilla, posing as a drug dealer, driving an empty vehicle which Partida was told would be

carrying marijuana loads through Donna. Quintanilla would arrange for Partida, while on duty as a

Donna police officer, to escort the load vehicle in a marked patrol vehicle to a destination outside the

Donna city limits. Once the load vehicle reached the city limits, the patrol car would turn around, and

the load vehicle would continue on. At a later point in time, Quintanilla would arrange a location to

meet up with Partida and perform payment for the services rendered.

3
 Pursuant to this operation, FBI agents began recording a series of meetings and conversations

between Quintanilla and Partida, in which Partida pledged to assist in escorting bulks of marijuana

through the city of Donna. In one recorded telephone conversation, Quintanilla and Partida spoke

about how Quintanilla would be passing through the area with 300 pounds of marijuana in a red

Suburban with tinted windows at “exactly uno.” Partida replied, “OK. I’m going to be there.”

In a recorded conversation on April 20, 2001, a staged event was arranged for Partida to

follow a red Suburban through Donna while Partida was under the belief that he would be protecting

the transport of 300 pounds of marijuana. Unbeknown to Partida, the Suburban actually contained

no marijuana inside. Government agents provided Quintanilla with the Suburban (which had a video

camera specially installed), and instructed Quintanilla to drive from McAllen to a location near the

Donna city limits. Once Quintanilla arrived at the location near Donna, FBI agents switched on the

camera. As the staged event unfolded, undercover FBI agents videotaped Partida’s marked patrol

vehicle “bumper locked” to the Suburban for two and a half miles as the Suburban, driven by

Quintanilla, slowly drove through the city limit of Donna. Five days later, the two men met at

Quintanilla’s house, and in a recorded encounter Quintanilla paid Partida $500 for his assistance. As

he took the money, Partida commented, “I’m in the wrong business. . . .That [was] the easiest money

I ever made. Let’s do it again.”

As circumstances would have it, another ill fated opportunity arose for Partida to participate

in drug trafficking. In May 2001, Quintanilla informed Partida of another “load coming through

again.” After learning of the time frame for the shipment, Partida responded “I’m there, Dude.”

Quintanilla and Partida discussed whether another Donna police officer was also willing to escort

Quintanilla through the city. Government agents instructed Quintanilla to ask about this subject

4
because by this time Partida had risen to the rank of acting chief of police. Partida’s ascendance

caused a problem because he no longer drove a marked patrol car. Quintanilla insisted that he needed

a marked patrol car to follow the drug shipment in order to limit the risk of “getting the load ripped

off” by a rival trafficking organization. Partida had someone in mind, and he discussed with

Quintanilla how much Quintanilla would pay Partida and the other officer.

The person Partida had in mind was Donna police officer Vigil. After several phone calls

between Quintanilla and Partida, a meeting was finally arranged. On November 7, 2001, Partida and

Vigil met with Quintanilla in a videotaped meeting at a hotel in nearby Pharr, Texas. At the behest

of government agents, Quintanilla asked Vigil whether Partida forced him to provide escort services

to the drug shipment. Vigil responded, “Nah . . . I’m cool with it.” Vigil also stated that prio to
r

Partida requesting his services, he planned on asking Partida about the possibility of continuing drug

escort activities a second time.

Two days later, on November 9, 2001, a similar “drill” was set up, with Vigil meeting

Quintanilla (who was again driving a camera-equipped red Suburban without any drugs) at the

southern city limits of Donna. Quintanilla phoned Partida ahead of time to tell him that he had 300

pounds of marijuana, and he later called both Part ida and Vigil as he approached the designated

meeting point. The operation went off as planned, and was captured o n videotape as Quintanilla

drove up FM 493 with Vigil following closely behind. Later that day , after the reverse sting

operation was completed, Vigil and Quintanilla met again at the Comfort Inn in Pharr, Texas.

Quintanilla paid Vigil $700 (he had already received $100 “up front”). Later, Partida arrived at the

hotel room, Quintanilla paid him $2,200, and Partida placed the payment in his boot.

5
 Partida was subsequently arrested on November 12, 2002. At the time of his arrest, agents

showed Partida one of the videotapes, and after watching for a while, Partida stated, “Turn it off.

I don’t want to see it anymore.” Partida produced a handwritten confession. Vigil was also arrested

on November 12, 2002. After Vigil signed a rights waiver, agents showed him a portion of one of

the videotapes — after a while Vigil too stated he had seen enough and asked that the tape be turned

off. Vigil then executed a written confession.

A federal grand jury issued a five-count indictment against Partida and Vigil. Count 1 charged

that Partida attempted to aid, abet, and assist in the possession of a controlled substance with intent

to distribute, in violation of 21 U.S.C. §§ 841(a)(1), 841 (b)(1)(B), and 846, and 18 U.S.C. § 2.

Counts 2 and 5 charged that Partida — on two separate occasions — obstructed interstate and

foreign commerce by means of extortion under color of official right, in violation of 18 U.S.C. §

1951(a) (Hobbs Act). Count 3 charged both Partida and Vigil with conspiring to possess 300 pounds

of marijuana with intent to distribute, in violation of 21 U.S.C. § § 841(a)(1), 841(b)(1)(B), and 846.

Count 4 charged Vigil with obstructing interstate and foreign commerce by means of extortion under

color of official right, in violation of 18 U.S.C. § 1951(a) (Hobbs Act).

On February 18, 2003, Partida and Vigil were tried together and presented the sole defense

of entrapment. Partida and Vigil presented no other evidence at the guilt phase of their trial. On

February 21, 2003, a jury convicted Partida of all charges against him. The same jury convicted Vigil

of extortion, but acquitted him of conspiracy.

On May 21, 2003, the district court sentenced Partida to concurrent terms of 151 months

incarceration, to be followed by concurrent four-year terms of supervised release. Partida was also

required to pay $400 in special assessments. In a separate hearing, on that same day, the district

6
court sentenced Vigil to 97 months incarceration, to be followed by a three-year period of supervised

release. Vigil was also required to pay a $100 special assessment. Partida and Vigil now raise

numerous challenges to their convictions and sentences.1

DISCUSSION

I. Sufficiency of the Indictment

Partida challenges the sufficiency of the indictment for failure to state an offense and failure

to charge all elements of a crime. We generally review a challenge to the sufficiency of the indictment

de novo. United States v. Fitzgerald, 89 F.3d 218, 221 (5th Cir. 1996). Because Partida failed to

object below, the appropriate standard of review is plain error. United States v. Hickman, 331 F.3d

439, 443 (5th Cir. 2003). Error is plain only when it is clear or obvious and affects the defendant’s

substantial rights, i.e., the error must have “affected the outcome of the district court’s proceedings.”

Id. If these conditions are met, then we may reverse only if the error “seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” United States v. Cotton, 535 U.S. 625, 631

(2002).

To be sufficient, an indictment must conform to minimal constitutional standards, standards

that are met where the indictment alleges every element of the crime charged and in such a way as

to enable the accused to prepare his defense and to allow the accused to invoke the double jeopardy

clause in a subsequent proceeding. United States v. Bieganowski, 313 F.3d 264, 285 (5th Cir. 2002)

(citations and quotations omitted).

A. Count 1 of the Indictment Properly Alleged an Offense

1
Pursuant to Fed. R. APP. P. 28(I), Partida and Vigil have each attempted to adopt the arguments
of the other co-defendant. Except where explicitly mentioned, our opinion assumes each argument
has been adopted and the same result would apply for each co-defendant.

7
 Partida contends that count one of the indictment charged no crime proscribed by Congress.2

Partida asserts that strictly construing 18 U.S.C. § 2 and 21 U.S.C. §§ 841 and 846 collectively does

not state an offense.3 Specifically, Partida asserts that the plain meaning of those statutes does not

proscribe “attempting to aid, abet, and assist” the possession with intent to distribute marijuana. We

find this argument unavailing for two reasons: an analogous Model Penal Code provision and our

circuit’s precedent explicitly address and reject the basis of the contention we face here.

We begin with the analogous law of criminal attempt under Model Penal Code 5.01(3), which

provides:

A person who engages in conduct designed to aid another to commit a crime
that would establish his complicity under Section 2.06 if the crime were
committed by such other person, is guilty of an attempt to commit the crime,
although the crime is not committed or attempted by such other person.

Model Penal Code and Commentaries (Official Draft and Revised Comments), Part I, § 5.01(3)

(A.L.I. 1985). The Model Code identifies the purpose behind subsection (3) in an explanatory note

as follows:

Subsection(3) fills what would otherwise be a gap in complicity liability.
Section 2.06 [of the Model Penal Code] covers accomplice liability in
situations where the principal actor actually commits the offense, however, it
is provided here that the accomplice will be liable if he engaged in conduct that
would have established his complicity had the crime been committed.

2
Although Vigil purports to adopt this issue from Partida, the record shows that Vigil was not
charged with count one. We therefore find this issue moot as pertains to Vigil.
3
Under Section 2, “[w]hoever commits an o ffense against the United States or aids, abets,
counsels, commands, induces, or procures its commission, is punishable as a principal.” 18 U.S.C.
§ 2 (1951); Section 846 also provides that “[a]ny person who attempts or conspires to commit any
offense defined in this Subchapter shall be subject to the same penalties as those prescribed for the
offense, the commission of which was the object of the attempt of the conspiracy.” 21 U.S.C. § 846
(1988); conspiracy to possess marijuana with intent to distribute is an offense under this subchapter.
See 21 U.S.C. §§ 841(a), 846 (1976).

8
Id. At 297-98 (explanatory note to § 5.01(3)). The quoted passage is important here because it refers

to attempting to aid and abet a crime, similar to the facts before us, in the context of an offense for

which the principle may not be guilty.

In interpreting § 5.01(3), it is clear that on the one hand, if the principal actually attempts to

commit a crime, but fails to render the crime complete, the Model Code imputes liability to the aider

and abettor for the same offense as the principal — attempting to commit a crime. Once the

prosecution proves an attempted act of assistance with the required mens rea, t he accomplice

becomes the perpetrator’s shadow and he is as culpable as his perpetrating cohort. On the other

hand, the plain meaning of § 5.01(3) also demonstrates, as here, that if the principal had only

pretended to commit the crime, and the accomplice attempted to aid the principal by “engaging in

conduct that would have established his complicity had the crime been committed,” the accomplice

is culpable for attempting to commit the crime. United States v. Washington, 106 F.3d 983, 1005

(D.C. Cir. 1997). As our fellow D.C. Circuit has emphasized, the justification for permitting

convictions on the basis of “attempt to aid and abet” is necessitated because “even if an offense was

not actually committed, the defendant manifests the same dangerousness of character as the actor

who himself attempts to commit the offense.” Id.

In addition to the Model Code, on more than one occasion we have upheld convictions and

recognized that a defendant’s attempt to aid or abet in the commission of a crime is sufficient for

criminal liability. In United States v. Cartlidge, 808 F.2d 1064, 1065 (5th Cir. 1987), an action

virtually similar to ours, a known user of controlled substances informed government agents that the

defendant, a deputy sheriff in Sharkey County, Mississippi, approached him and solicited payments

in exchange for law enforcement protection for drug deals. The agents launched a sting operation

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arranging for undercover agents, posing as drug smugglers, to be introduced to the corrupt deputy

sheriff by the informant. Id. Using a concealed instrument, government agents recorded the

defendant promising to provide police protection to planes landing in Sharkey County loaded with

thousands of pounds of marijuana, in return for payment of $1,000 per load. Id. at 1066. Although

the drug operation that the defendant intended to assist did not actually exist (since the undercover

agents were only pretending to be drug dealers), the defendant was charged and convicted of

attempting to aid and abet in the federal crime of possession and distribution of marijuana. On appeal,

this court upheld the conviction for attempting to aid and abet in the drug offense. We emphasized

that under 21 U.S.C. § 846, Congress imposes criminal punishment on “any person who attempts or

conspires to commit any offense” enumerated in the Act. Id. Similarly, in United States v. Gutierrez,

343 F.3d 415, 417 (5th Cir. 2003), the defendant was a San Antonio police officer who agreed to

provide security for drug deals, to “run interference,” and to protect against competing drug dealers.

Again, this court affirmed the defendant’s conviction for attempting to aid and abet the possession

of a controlled substance with intent to distribute. Id. at 416. Consistently this court has affirmed

convictions of attempting to aid and abet the possession of a controlled substance with intent to

distribute.

Based on our interpretation of the analogous § 5.01(3) of the Model Code and this court’s

precedent, we conclude that federal criminal law prohibits attempting to aid and abet the possession

of a controlled substance with intent to distribute. Hence, in light of this court’s precedent and a

10
reading of the relevant statute, count 1 of the indictment sufficiently charged Partida with conduct

contemplated and proscribed by Congress.4

B. Counts 2, 4, and 5 of the Indictment Properly Alleged an Offense

Partida next argues that the indictment failed to state an offense in counts 2, 4, and 5, the

extortion counts, because each count did not include all the elements of the crime with which Partida

was charged. Specifically, Partida maintains that Evans v. United States, 504 U.S. 255, 268 (1992),

requires that the prosecution prove violations of the Hobbs Act, 18 U.S.C. § 1951(a),5 by showing

that the public official obtained payment, knowing that the payment was made in return for official

acts, and that the indictment is required to charge as much also. We conclude, however, that the

indictment was not deficient for merely failing to articulate those exact words.

We begin with the text of the indictment, which states, in pertinent part:

4
Partida raises an additional challenge to the judgment entered by the district court as incorrectly
stating an offense no t proscribed by Congress. For the same reasons that we find the indictment
correctly states an offense, we reject Partida’s challenge to the judgment entered by the district court.
5
The relevant portion of the Hobbs Act provides:

(a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any
article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or
commits or threatens physical violence to any person or property in furtherance of a plan or purpose
to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not
more than twenty years, or both.

(b) As used in this section —

....

(2) The term ‘extortion’ means the obtaining of property from another, with his consent, induced by
wrongful use of actual or threatened force, violence, or fear, or under color of official right.

18 U.S.C. § 1951

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 Marco Abel Partida provided assistance to Rigoberto Quintanilla in exchange for
money for the purpose of facilitating what the defendant believed were unlawful
drug-trafficking activities. Marco Abel Partida became Acting Chief of Police of the
Donna Police Department and located another officer, Gerardo Vigil, who was
willing to assist Rigoberto Quintanilla in connection with unlawful drug-trafficking
activities.

(emphasis added). The plain text of the indictment clearly states that both Partida and Vigil, in their

capacity as officers in the Donna Police Department, obtained payment with the knowledge that those

payments were in return for their assistance in facilitating drug-trafficking. Additionally, in charging

Partida and Vigil with these Hobbs Act violations, the indictment not only cites section 1951(a), but

it also tracks the language of the statute, stating that the defendants “knowingly and unlawfully

obstructed, delayed, affected, and attempted to obstruct, delay, and affect interstate and foreign

commerce by means of extortion.” See 18 U.S.C. § 1951(a) (emphasis added). The indictment also

alleges that the payments were “induced by color of official right, in exchange for providing

protection for a vehicle the defendant believed was transporting three hundred (300) pounds of

marihuana in Donna, Texas.” (emphasis added).6 The combination of the facts set forth in the

indictment, the use of the word “knowingly,” and the statutory citation, taken together, provided a

sufficient basis for establishing that Partida and Vigil, as public officials, obtained payment, knowing

that the payments were made in return for official acts. Accordingly, we reject Partida’s argument

on this Hobbs Act issue.

6
Our conclusion is furthered by the indictment’s use of the term “by color of official right.” In
Evans, the Supreme Court opined that W. Hawkins’ definition for extortion “is probably the source
for the official right language used in the Hobbs Act.” 504 U.S. at 261 n.4. Hawkins defined
extortion as, “signifi[ng] any oppression under colour of right, but that in a strict sense, it signifies
the taking of money by any officer, by colour of his office, either where none at all is due, or not so
much is due, or where it is not yet due.” Id. (quoting W. Hawkins, Pleas of the Crown 216 (6th ed.
1787)) (emphasis added).

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II. Jury Instructions

A. Constructively Amending the Indictment

Partida argues that the district court erred in its jury instructions by constructively amending

the indictment to permit the jury to convict on grounds not alleged in Counts 1 and 3 in the

indictment.7

Again, because Partida did not object to the jury instructions at trial, we review Partida’s

constructive amendment claim for plain error only. See United States v. Dixon, 273 F.3d 636, 639

& n.1 (5th Cir. 2001). The Fifth Amendment provides that criminal defendants are to be tried only

on charges alleged in a grand jury indictment. Id. at 639. Only a grand jury may amend an indictment

once it has been issued. United States v. Daniels, 252 F.3d 411, 414 n.8 (5th Cir. 2001). A

“constructive amendment” occurs when the jury is permitted to convict a defendant based on an

alternative basis permitted by the statute, but not charged in the indictment. Id. at 414.

As to Count 1, Partida contends that the court’s instructions permitted the jury to convict

either (1) if Partida aided and abetted another’s possession with intent to distribute marijuana; or (2)

if Partida attempted to commit the substantive offense of knowingly possessing marijuana with intent

to distribute. Partida maintains that the latter charge was never made in the indictment. We cannot

agree.

Count 1 of the indictment charged that Partida “did knowingly attempt to aid, abet and assist

in the possession of . . . [300] pounds of marijuana with intent to distribute.” After reviewing the

record, it is clear that this was precisely the argument the government presented at trial, as well as

7
Although Vigil purports to adopt this issue, the record shows that he was not charged in Count
1 and he was acquitted of Count 3. Therefore, we find this constructive amendment issue moot as
to Vigil.

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the alleged crime reflected in the jury instructions. At trial, the prosecution adduced evidence that

Partida attempted to aid in Quintanilla’s “crime” of possessing marijuana with intent to distribute, by

providing protection to Quintanilla’s vehicle as it passed through Donna. Likewise, the district court

instructed the jury, in a sequential fashion, on the elements required to prove the charge of attempting

to aid and abet the possession of marijuana with intent to distribute — the instructions first covered

the substantive offense of possession of marijuana with intent to distribute and next covered the

meaning of “attempt” and “aiding and abetting.” As such, because the district court’s jury

instructions did not authorize conviction of an offense not alleged, there was no constructive

amendment with respect to Count 1.8 Even assuming, that the district court’s instructions

constructively amended the indictment, such error did not plainly affect Partida’s substantial rights.

The defense at trial was entrapment; Partida argued not that he did not commit the act charged in

Count 1, but instead he argued that he was entrapped into doing so. Because Partida never contested

his commission of the act, but only whether he should be held criminally liable for it, Partida has failed

to demonstrate that he suffered prejudice from any constructive amendment.

As to Count 3, Partida argues that the jury instruction allowed the jury to find him guilty if

he either attempted to conspire or conspired to possess marijuana with intent to distribute. Partida

maintains that there is no federal offense of an “attempt to conspire,” and hence his conviction on this

issue must be set aside. We are unpersuaded.

Count 3 of the indictment alleged that Partida conspired to possess marijuana with intent to

distribute. As part of its instructions to the jury, the district court explained the elements of the

8
For the same reason, we find that Partida’s claim that his Fifth and Sixth Amendment rights were
violated is also meritless.

14
conspiracy offense. Shortly thereafter, the district court provided the jury with a legal definition of

“attempt.” Partida contends that this sequential instruction equates to instructing on an “attempt to

conspire.” After reviewing the record, we cannot find that the district court’s “attempt” instruction

was aimed at a separate offense of “attempted conspiracy” rather than aimed at the substantive

offense, i.e., possession of marijuana with intent to distribute. Although the district court instructed

on attempt both for Count 1 and again for Count 3, it is not clear from the instruction that the court

was instructing the jury as to a separate offense of “attempted conspiracy.” The district court did

include superfluous language stating that the defendants were charged with “attempt[ing] to engage

in this substantive conspiracy with intent to distribute,” however, the record shows that the district

court’s instructions informed the jury — on t wo separate occasions — that the defendants were

charged with conspiring to commit the substantive offense of possession wit h intent to distribute.

Hence, we find no plain error was committed that seriously affected the fairness or integrity of the

trial.

Moreover, Partida has not demonstrated plain error because his contention that the district

court’s attempt instructions risked confusing the jury on the correctly-instructed conspiracy offense,

with an attempt to conspire, fails to demonstrate prejudice. Under plain error review, the defendant

must demonstrate both that the error was “plain” and that the outcome of the trial was tainted by the

error. Daniels, 281 F.3d at 184. Here, neither the prosecution nor the defense argued for a finding

of attempted conspiracy, nor was evidence of a mere attempt placed before the jury. Furthermore,

considering t he overwhelming evidence of a fully formed conspiracy (including the videotapes,

audiotapes, and Partida’s written confession), no rational jury presumably would have convicted

Partida of attempted conspiracy. Also, because his sole defense at trial was entrapment, Partida did

15
not refute the allegation that he committed the charged acts, rather Partida argued merely that he

should not be held criminally responsible for those acts. Thus, Partida can demonstrate neither

prejudice nor jury confusion over the district court’s instructions when he conceded at trial that he

committed the acts alleged by the government’s indictment. We therefore conclude that Partida has

failed to demonstrate any reversible error in the jury instructions on the attempt charge.

B. Jury Instructions on Mens Rea Element

Partida next argues that the district court erred by failing to include a mens rea instruction to

the jury on Counts 2, 4, and 5 (the extortion counts). Specifically, Partida alleges that the district

court’s jury instruction did not include that Partida obtained money to which he was not entitled,

knowing that the money was given in return for taking, withholding, or influencing official action.

We cannot agree.

Again, we apply the plain error standard of review because Partida failed to object to the jury

instructions as given by the district court. United States v. Hickman, 331 F.3d 439, 443 (5th Cir.

2003). Although a public official commits Hobbs Act extortion if he obtains a payment to which he

is not entitled, “knowing that the payment was made in return for official acts,” Evans, 504 U.S. at

268, more than one method exists by which a court may articulate that knowledge element. In Justice

Kennedy’s concurrence in Evans, he opined that jury instructions requiring a defendant’s “wrongful

use of otherwise valid official power” “made clear” the knowledge element. Id. at 277 (Kennedy, J.,

concurring). The phraseology “wrongful use of otherwise valid official power” is this court’s

verbatim pattern instruction for Hobbs Act extortion, see 5th Cir. Pattern Criminal Jury Instruction

2.74 (2001), and was the precise language employed by the district court in the instant case. This

particular instruction clearly communicated to the jury that Partida and Vigil were to be found guilty

16
only if their acceptance of the payments amounted to a wrongful use of their official power, i.e., that

they knowingly accepted unauthorized payments. As such, we find that the district court did not

plainly err in instructing the jury as to the mens rea element required by the Hobbs Act.9

III. Sufficiency of the Evidence

A. Legally Sufficient Evidence on Count 1

Partida contends that there was insufficient evidence adduced at trial establishing his guilt,

beyond a reasonable doubt, that he attempted to aid and abet a government informant’s possession

of marijuana with intent to distribute.10 In essence, Partida makes an impossibility claim, asserting

that because Quintanilla could not be guilty of the crime charged, he cannot be convicted of aiding

and abetting such informant.11 We are not persuaded.

A challenge to the sufficiency of the evidence is reviewed by viewing the evidence in the light

most favorable to the government, determining whether “any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,

318 (1979); United States v. Beckner, 134 F.3d 714, 718 (5th Cir. 1998). We do not consider

9
The government’s brief argues in the alternative, and this court agrees, that even if we were to
identify plain error in the district court’s jury instruction on this issue, Partida and Vigil have failed
to establish prejudice under the plain error doctrine as they both admitted at trial that they accepted
the payments as charged.
10
Although Vigil purports to adopt this argument, the record shows that he was acquitted of this
count, so we find this issue moot as to him.
11
Partida’s brief also raised a due process challenge to this circuit’s interpretation of attempt law
on the grounds that our law does not allow proof of commission of the underlying offense being
attempted. After thoroughly considering this argument and the applicable law, we reject Partida’s
constitutional challenge.

17
whether the jury correctly determined guilt or innocence, but whether the jury made a rational

decision. United States v. Rivera, 295 F.3d 461, 466 (5th Cir. 2002).

Partida was specifically charged in Count 1 with attempting to aid and abet the possession of

marijuana with intent to distribute. Although there is no comprehensive statutory definition of

attempt in federal law, in general, federal courts allow an attempt conviction if the government

proves: (1) that the defendant acted with the kind of culpability otherwise required for the

commission of the underlying substantive offense, and (2) that the defendant had engaged in conduct

which constitutes a substantial step toward commission of a crime. United States v. Farner, 251 F.3d

510, 513 (5th Cir. 2001). Factual impossibility is not a defense to a charge of attempt. See United

States v. Crow, 164 F.3d 229, 236 (5th Cir. 1999) (stating that “factual impossibility is not a defense

if the crime could have been committed had the attendant circumstances been as the actor believed

them to be”).

Here, the evidence construed in the light most favorable to the government was sufficient to

demonstrate the crime of attempting to aid and abet. Based on the video and audiotapes of their

discussions with Quintanilla regarding facilitating the drug shipment, and each defendants’ written

confessions, Partida had a criminal intent consistent with the crime of aiding and abetting. Moreover,

Partida’s acceptance of payment to protect what they believed to be Quintanilla’s drug shipment, and

their actual protection of the shipment as a Suburban drove it through their patrol district,12 constitute

sufficient evidence of substantial steps that moved past mere preparation, and were strongly

12
Part ida, as police chief, ensured that no one would interfere with, or stumble upon, Vigil’s
ability to participate in the operation. Vigil, of course, accomplished the substantive act of actually
meeting the Suburban and proceeding to follow Quintanilla as he drove the Suburban through the city
of Donna.

18
corroborative of criminal intent. As noted above, because factual impossibility is no defense to an

attempt crime, the evidence is sufficient to show an attempt to aid and abet, despite the defendants

mistaken belief that actual loads of marijuana were in Quintanilla’s Suburban at the time of the escort.

Based on these circumstances, sufficient evidence existed to convict Partida of attempting to aid,

abet, and assist in the possession of a marijuana with the intent to distribute.

B. Legally Sufficient Evidence on Counts 2, 4, and 5

Partida also challenges his conviction on the grounds of insufficient evidence supporting his

convictions on Counts 2, 4, and 5 (the extortion counts). Specifically, Partida argues that there was

insufficient evidence establishing that the streets upon which defendants and Quintanilla traveled were

channels of interstate commerce. Partida also argues that the “victims” of any alleged Hobbs Act

violation are citizens of the state in which the alleged offenses occurred, thus interstate commerce was

not affected. We disagree.

Ordinarily, we review sufficiency of the evidence challenges under the identical standard

recited above; however, because Partida and Vigil essentially failed to preserve this issue for appeal,13

we shall review whether the defendants’ convictions amount to a “manifest miscarriage of justice,”

i.e., whether the record is devoid of evidence pointing to guilt. United States v. Delgado, 256 F.3d

264, 274 (5th Cir. 2001).

13
Although Partida and Vigil moved for acquittal on Counts 2, 4, and 5 (both at the close of
evidence and again after the jury returned the verdict), they asserted different grounds for their
respective motions. Specifically, both claimed that they had been “induced” by Quintanilla to commit
the Hobbs Act offense, not that interstate commerce was unaffected by their conduct. Because a
defendant waives all other grounds not specifically set forth in a motion for acquittal, United States
v. Herrera, 313 F.3d 882, 884-85 (5th Cir. 2002) (en banc), defendants have not preserved this issue
for appeal.

19
 We have recognized that, because drugs are traded on an interstate market, the act of

interfering or facilitating narcotics trafficking is sufficient to est ablish an effect on interstate

commerce. United States v. Villafranca, 260 F.3d 374, 378 (5th Cir. 2001) (citing United States v.

Box, 50 F.3d 345, 353 (5th Cir. 1995)). Additionally, we have held that extortion which depletes

funds otherwise available for drug trafficking obstructs commerce within the meaning of the Hobbs

Act. Box, 50 F.3d at 353 (citing United States v. Davenport, No. 93-1216 (5th Cir. Sept. 6, 1994)

(unpublished)). Both of these cases are dispositive to our reasoning on the instant facts.

Here, the record clearly shows sufficient evidence demonstrating that Partida and Vigil

actively participated in the act of facilitating drug trafficking. Partida and Vigil’s actions centered

around protecting and facilitating the trafficking of marijuana by Quintanilla. Quintanilla’s drug

shipment was carried down FM 493, a road used to transport goods and for travel from one state to

another. It is undisputed that both defendants provided escort services to Quintanilla as he traveled

on FM 493 through, and beyond, the Donna City limits. Moreover, the record shows written

confessions from Partida and Vigil admitting that they were paid by Quintanilla for their escort

services. As a logical proposition, the payments received by the defendants depleted funds that would

otherwise have been available for drug trafficking. Hence, we find sufficient evidence in the record

to ensure that Partida’s and Vigil’s convictions do not amount to “manifest miscarriages of justice.”

IV. Sentencing

Partida and Vigil raise numerous post-conviction challenges to the district court’s imposition

of their sentences. We review the district court’s interpretation or application of the Sentencing

Guidelines de novo, but we review factual findings for clear error. United States v. Simpson, 334

F.3d 453, 455-56 (5th Cir. 2003). Because the application of § 3B1.3 is a sophisticated factual

20
determination, we review a § 3B1.3 sentencing enhancement under a clearly erroneous standard.

United States v. Deville, 278 F.3d 500, 508 (5th Cir. 2002) (internal quotations and citations

omitted).

Because a sentencing judge is uniquely positioned to evaluate a defendant’s acceptance of

responsibility, we apply a standard variously described (but without any practical differences) as

“clearly erroneous,” “without foundation” or “great deference.” United States v. Chapa Garza, 62

F.3d 118, 123 (5th Cir. 1995). This standard requires more deference for acceptance of responsibility

issues than a pure clearly erroneous standard. Id.

A. Sentence Enhancement under U.S.S.G. § 2D1.1(b)(1)

Both Partida and Vigil maintain that the district court erred in enhancing their sentences,

pursuant to U.S.S.G. § 2D1.1(b)(1), by determining that each possessed a firearm while engaged in

their criminal activity. In essence, the defendants argue that their possession of firearms was merely

an extension of their police uniforms and was not associated with the commission of any offense.

Section 2D1.1 (b)(1) provides for a two-level enhancement when a defendant possesses a

dangerous weapon while possessing or trafficking drugs. See U.S.S.G. § 2D1.1(b)(1) (2002). The

government carries the burden of proving a spacial and temporal nexus between the weapon, the drug

activity, and the defendant. United States v. Cooper, 274 F.3d 230, 245 (5th Ci r. 2001). This

enhancement provision will not apply where the defendant is able to show that it is “clearly

improbable” that the weapon was connected with the offense. U.S.S.G. § 2D1.1 n.3. Instead, for

the enhancement to be proper the government must show that “the weapon was found in the same

location where drugs or drug paraphernalia are stored or where part of the transaction occurred.”

Id.

21
 This court has already confronted and addressed the issue of whether a sentence can be

enhanced under § 2D1.1 where a defendant possessed a gun as part of his employment as a law

enforcement agent. In United States v. Marmolejo, 106 F.3d 1213, 1216 (5th Cir. 1997), we held

that a § 2D1.1 enhancement is proper when a law enforcement agent possesses a weapon at the time

he uses his official position to facilitate a drug offense. Our court stated this enhancement applied

even when the officer does not brandish, display, or have active use of the firearm during the offense.

Id. Here, the defendants do not contest that § 2D1.1 adjustments may apply to law enforcement

agents, instead they challenge the evidentiary basis of the district court’s enhancement.

Part ida objects to the firearm enhancement on the grounds that there was no evidence

demonstrating that he possessed a firearm while escorting Quintanilla through the city of Donna.

Relying on United States v. Siebe, 58 F.3d 161 (5th Cir. 1995), Partida specifically contends that the

district court improperly presumed a firearm was connected with the drug offense despite the fact that

Partida did not carry a weapon while he acted in the capacity of chief of police. We find this

argument unavailing.

In Siebe, a police officer who pleaded guilty to possession of cocaine with intent to distribute

was subjected to § 2D1.1(b)(1) enhancement for possessing a dangerous weapon during the

commission of a drug offense. 58 F.3d at 162. The district court based it s enhancement upon a

presumption that Siebe possessed a gun during commission of the drug trafficking offense by virtue

of the fact that he was a police officer, and therefore had been issued a firearm. Id. at 163. We

reversed the district court’s decision to grant the firearm enhancement, on the grounds that there was

no evidence, other than the district court’s unsupported presumption, that the officer possessed a

weapon while committing the drug trafficking crime. Id.

22
 We find Siebe inapposite to the facts at issue. Unlike Siebe, circumstantial evidence exists

to support the district court’s finding that the defendants possessed a weapon during the drug

trafficking crime. Specifically, while there was no evidence in Siebe that the defendant committed

the crimes on- or off-duty, the record shows that Partida was serving as a patrol officer, on duty, in

uniform, and in a marked police vehicle, when he escorted Quintanilla through Donna. The record

also shows that the Donna Police Department had a policy in place requiring uniformed officers to

carry their firearms. Based on this cumulative body of circumstantial evidence, we cannot find that

the district court clearly erred in finding that Partida possessed a weapon while engaging in the

identified drug trafficking activities. As such, we uphold the district court’s application of §

2D1.1(b)(1) to Partida.

Vigil offers a similar, but slightly different, objection to the district court’s application of §

2D1.1(b)(1). Vigil argues that although he possessed the weapon while escorting Quintanilla through

Donna, he did not possess a weapon while he was at the Comfort Inn committing the extortion

offense. We must reject Vigil’s argument.

After reviewing the record, it is clear that the district court applied the firearm enhancement

based on the cross-referenced drug offense rather than for the extortion offense. Section 2C1.1(c)(1)

provides that if the extortion offense was “committed for the purpose of facilitating another criminal

offense, apply the offense guideline applicable to conspiracy to commit that other offense . . .”

U.S.S.G. § 2C1.1(c)(1) & cmt. background (2002). Therefore, it matters not whether Vigil was

actually armed at the Comfort Inn, as he was admittedly armed while he escorted Quintanilla through

Donna. Accordingly, we conclude that the district court did not commit clear error in enhancing

Vigil’s sentence for possessing a weapon.

23
 B. Reduction for Acceptance of Responsibility

Partida and Vigil contend that the district court erred by denying them a two-level decrease

in their base offense level for acceptance of responsibility. We disagree.

Section 3E1.1 of the Sentencing Guidelines provides for the two-level decrease “if the

defendant clearly demonstrates acceptance of responsibility for his offense.” U.S.S.G. § 3E1.1(a)

(2002). We have previously recognized that a defendant is not automatically precluded from

receiving a reduction for acceptance of responsibility if he exercises his right to trial. See United

States v. Brace, 145 F.3d 247, 264 (5th Cir. 1995) (en banc). In Brace, we stated that:

In rare situations a defendant may clearly demonstrate an acceptance of
responsibility for his criminal conduct even though he exercises his
constitutional right to a trial. This may occur, for example, where a defendant
goes to trial to assert and preserve issues that do not relate to factual guilt
(e.g., to make a constitutional challenge to a statute or a challenge to the
applicability of a statute to his conduct).

Id. (quoting U.S.S.G. § 3E1.1(a) comment n. 2) (emphasis added).

Here, as in Brace, Partida and Vigil maintain that they satisfied § 3E1.1 because they went

to trial to preserve the “legal issue” of entrapment. Along these lines, Partida and Vigil note that the

record shows that they fully admitted to their factual guilt. Contrary to the defendants’ argument,

Partida’s and Vigil’s assertion of entrapment is a denial of factual guilt because it was “a denial of

subjective predisposition and, consequently, of the required element of mens rea.” Brace, 145 F.3d

at 265. In Brace, we emphasized the justification for our rejection of a similar “legal issue” of

entrapment by concluding:

In other words, an entrapment defense is a challenge to criminal intent and
thus to culpability. Accordingly, this is not one of those “rare situations”,
contemplated by the guideline commentary, in which a defendant may proceed
to trial and still satisfy § 3E1.1(a).

24
Id. Because Partida and Vigil have admitted their factual conduct, but denied their guilt (specifically

the element of mens rea) by claiming the defense of entrapment, their denial of criminal culpability

constitutes a failure to “clearly accept responsibility” for the crimes for which they were convicted.

Vigil also argues that the denial of a reduction in his sentence was improper because the jury

“accepted” his entrapment defense, and therefore he was penalized for failing to accept responsibility

for acquitted conduct.14 We cannot agree. The jury’s motives in issuing a general verdict to acquit

Vigil on Count 3 — the possession with intent to distribute charge — are unknown. It is not the duty

of this court to speculate on the reasons for the jury’s general verdict of acquittal. See United States

v. Lichenstein, 610 F.2d 1272, 1279 (5th Cir. 1980) (“A court may not divine from a general verdict

of acquittal such specific findings.”). We also note, as the government points out, that the jury did

not fully accept Vigil’s entrapment defense because it convicted him of Count 4, the extortion count.

The district court could have based its denial of the acceptance reduction on Vigil’s act of proceeding

to trial on the entrapment count. We therefore cannot conclude that the district court hinged its

denial of the sentence reduction solely on a finding that Vigil refused to admit conduct for which he

was acquitted. Based on the“great deference” we accord a district court’s determination as to a

defendant’s acceptance of responsibility, we conclude that the district court had a proper basis for

finding a sentence reduction not warranted.

In sum, we conclude that the district court did not err when it denied both Partida and Vigil

a reduction in their respective sentences under § 3E1.1(a).

14
Partida posits a separate argument that because subsequent Supreme Court decisions on
entrapment altered the legal underpinnings of Brace, and we should not follow that decision. Because
Partida fails to identify any post-Brace Supreme Court decision altering the underpinnings of that
decision, we reject Partida’s argument.

25
 C. Proper Legal Standard for Sentencing

Vigil next argues that the district court erred in making its findings of facts during sentencing

by using a preponderance of the evidence standard when it was obliged to use the “clear and

convincing” standard. Vigil specifically contends that even though the jury acquitted him of the drug

charge, the district court’s application of the section 2C1.1(c)(1) extortion cross-reference to the

acquitted charge improperly results in the subsequent enhancement dominating the conviction.15

Stated differently, Vigil claims that the enhancement of his substantive conviction is a “tail that wags

the dog” circumstance which may require a higher evidentiary standard than a preponderance of the

evidence standard. Because the record shows that Vigil failed to contest the district court’s standard

of proof during sentencing, we review for plain error. See Hickman, 331 F.3d at 443. For the

following reasons, we find no plain error.

Under the Sentencing Guidelines, a district court’s operative fact finding is generally subject

only to a preponderance of the evidence standard. U.S.S.G. § 6A1.3, cmt. (2002); see also United

States v. Watts, 519 U.S. 148, 156-57 (1997) (finding that “[t]he Guidelines state that it is

‘appropriate’ that facts relevant to sentencing be proved by a preponderance of the evidence”). Due

to a standard of proof at sentencing lower than the proof necessary to convict at trial, the scope of

a sentencing court’s fact finding is not limited to considering only the conduct of which the defendant

was formally charged or convicted. See United States v. Casto, 889 F.2d 562, 570 (5th Cir. 1989)

(finding that a sentencing judge may sentence a criminal defendant “based on both the evidence

15
Vigil argues that the district court should have applied the “clear and convincing” standard to
apply the cross-reference to section 2D1.1. Here, Section 2D1.1 already applied to Partida’s
sentence, because Partida’s sentence was calculated without use of the cross-reference. Hence,
Partida cannot adopt Vigil’s argument on this issue.

26
proven beyond a reaso nable doubt at trial and facts which he believed had been proven by a

preponderance of the evidence”). Appreciating the lower standard of proof for sentencing, has

particular import in the context of acquittals. See Watts, 519 U.S. at 155 (quoting United States v.

One Assortment of 89 Firearms, 465 U.S. 354, 361 (1984)) (stating that an acquittal is not a finding

of fact nor does an “acquittal on criminal charges [] prove that the defendant is innocent; it merely

proves the existence of a reaso nable doubt as to his guilt”). Our court, therefore, has specifically

emphasized that “a jury’s verdict of acquittal does not prevent the sentencing court from considering

conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance

of the evidence.” United States v. Cathey, 259 F.3d 365, 368 (5th Cir. 2001) (quoting Watts, 519

U.S. at 157). Although resolution of the current issue does not involve questioning any of these

general rules, it does involve the scope of their application.

Vigil relies on the First Circuit’s decision in United States v. Lombard, 72 F.3d 170 (1st Cir.

1995). In Lombard, the criminal defendant was acquitted of murder in state court, and convicted in

federal court of illegal firearms possession arising out of the murders. Id. at 172. During sentencing

in federal court, the defendant received a mandatory term of life in prison based on the same murders

of which he had been acquitted in state court. Id. On appeal, finding that this case presented a

circumstance where the “tail has wagged the dog,” the First Circuit reversed and remanded for the

district court to consider whether a downward departure would have been appropriate. Id. at 187.

The First Circuit justified its conclusion on the grounds that this case raised serious questions as to

situations where the sentence of an individual is made more severe through the application of an

enhancement and/or a cross-reference than the sentence would have been for the crime of conviction

alone. Id. at 178.

27
 We do not find Vigil’s reliance on Lombard persuasive in the instant case. In Lombard, the

First Circuit stated that its conclusions were based on a concern the defendant was ostensibly

punished for the severe “enhancing” conduct of the acquittal on the state murder charge:

The effect of the murders was not just to fix [the defendant’s] sentence at
some higher point within a particular range delimited by Congress for the
firearms offense. Instead, the Guidelines, combined with the absence of a
stated statutory maximum, essentially required the district court to determine
[the defendant’s] base offense level as if his offense of conviction had been
first-degree murder.

Id. at 182. Accordingly, the First Circuit specifically observed that cases involving modest

enhancements or enhancements that do not cause a sentence to exceed what would otherwise

be a statutory maximum punishment were not helpful and “provide[d] little guidance” in their

analysis.” 72 F.3d at 186 n.16. Here, because the district court sentenced Vigil under the

statutory maximum for extortion, we cannot find that he was punished for any “severe”

enhancing conduct of the type found in Lombard. Vigil received a 97-month sentence, clearly

less than the 240 months he could have potentially received had he been sentenced to the

statutory maximum for his extortion conviction.

Additionally, the record shows that the district court applied the same “clear and

convincing” standard Vigil now requests on appeal. The district court, in discussing whether

the conduct for which Vigil had been acquitted could be used to trigger the cross-reference,

found “not only by a preponderance, but also by clear and convincing evidence” that Vigil

committed the substantive crime of protecting 300 pounds of marijuana. Accordingly, we

recognize that not only was the district court permitted to utilize the preponderance standard

in making its factual findings at sentencing, but it also found that Vigil committed the conduct

28
for which he was acquitted under both the preponderance and the clear and convincing

standard. As such, we find no plain error.

D. Sentence Reduction for Vigil’s Role in the Offense

Vigil next contends that an adjustment was warranted because his role in the offenses of this

case was less culpable than Partida’s.16 Vigil argues that the district court erred by not making such

an adjustment. Specifically, Vigil contends that he did not concoct the drug trafficking scheme,

instead he claims he was only a “peripheral” actor. We cannot agree.

The Sentencing Guidelines provide for adjustments to the offense level based upon the role

the defendant played in committing the offense. See U.S.S.G. § 3B1, i ntro cmt. (2002). Section

3B1.2(a) of the Sentencing Guidelines provides for a four-level reduction in a defendant’s sentence

if the defendant was a “minimal” participant in multi-participant criminal activity. Id. § 3B1.2(a).

The defendant bears the burden of establishing that he is eligible for the adjustment. Marmolejo, 106

F.3d at 1217.

In Marmolejo, the defendant sought an adjustment for being a “minimal” participant where

he was convicted of conspiring to possess with intent to distribute 200-300 kilograms of cocaine.

106 F.3d at 1217. We concluded that even though the defendant appeared to be small in relation to

the larger scope of the drug trafficking organization involved there, the defendant himself

“accomplished much in the way of furthering their goals.” Id. Here, Vigil was responsible for aiding

in the trafficking of 300 pounds of marijuana. We cannot find that aiding in the transport of 300

pounds of marijuana constitutes a “minimal” contribution to a larger criminal enterprise, which

16
Because Vigil’s argument requires the application of the Guidelines to him, in a fact specific
manner, Partida is barred from adopting this argument. See Simpson, 334 F.3d at 454.

29
essentially trafficked a total of 600 pounds of marijuana. Moreover, Vigil contributed a major

advancement to the crime, because he drove the only marked patrol vehicle that protected the drug

shipment on that occasion. Based on Vigil’s actions as the sole officer responsible for escorting

Quintanilla through Donna, and without additional evidence that he was only “peripheral” to the

criminal activity, we cannot find that the district court clearly erred in refusing Vigil an adjustment

pursuant to § 3B1.2(a).

E. Abuse of Trust Enhancement

Vigil argues that because he was convicted of extortion under the color of official right, the

guideline for that offense § 2C1.1, already takes his official position into account. Vigil contends,

therefore, that the district court’s enhancement of his sentence for abuse of a position of trust under

§ 3B1.3 improperly constitutes “double counting.” We disagree.

As mentioned above, the Sentencing Guidelines provide for adjustments to the offense level

based upon the role the defendant played in committing the offense. As relevant here, Section 3B1.3

provides for a two-level enhancement if a defendant “abused a position of public or private trust . .

. in a manner that significantly facilitated the commission or concealment of the offense.” U.S.S.G.

§ 3B1.3 (2002). Vigil fails to recognize that his sentence was calculated, via a cross-reference, using

the base offense level derived from § 2D1.1, because his extortion offense was committed “for the

purpose of facilitating the commission of another criminal offense,” here, the transporting of

marijuana through Donna. See U.S.S.G. § 2C1.1(c)(1) (2002). Hence, the upward adjustment was

applied to the base offense for the drug offense, not to the base offense for the extortion offense.

Moreover, the Sentencing Guidelines expressly contemplate that the abuse of trust

enhancement is applicable if the offense level for the extortion offense is determined using the cross-

30
reference in § 2C1.1(c)(1). Id. § 2C1.1, cmt., n.3 (2002). In an analogous action, we held that an

upward adjustment for abuse of trust was not “double counting” when the adjustment was applied

to, on those facts the base offense level for money laundering, an offense which did not take position

of trust into account. United States v. Powers, 168 F.3d 741, 751-52 (5th Cir. 1999). Similarly, as

applied here, the base offense levels in § 2D1.1 do not take a position of trust into account.

Accordingly, we find the district court’s enhancement of Vigil’s sentence pursuant to § 3B1.3's abuse

of trust provision is not clearly erroneous.

V. Post-Trial Motions

A. Written Judgment

Partida argues that the judgment of the district court incorrectly states that he was convicted

in Count 1 of attempting to aid and abet the possession of marijuana with intent to distribute. Partida

claims once again that there is no such offense, and seeks to have the judgment corrected. For the

reasons previously mentioned, we find no infirmity with the charged offense in Count 1 of the

indictment. Because the judgment reflects the offense charged by the indictment, we find no error.

B. Ineffective Assistance of Counsel

Finally, Partida argues that his trial counsel was constitutionally deficient, contending that his

counsel failed to raise at trial essentially all the issues currently before this panel. We have previously

held that “Sixth Amendment claims of ineffective assistance of counsel should not be litigated on

direct appeal, unless they were previously presented to the trial court.” United States v. Valuck, 286

F.3d 221, 229 (5th Cir. 2002). While this Court will consider such claims on direct appeal in “rare

cases,” the record must allow a reviewing court to “fairly evaluate the merits of the claim.” United

States v. Delagarza-Villareal, 141 F.3d 133, 141 (5th Cir. 1998). Here, the district court did not hold

31
a hearing or rule on Partida’s claim, nor does the record contains sufficient detail about trial counsel’s

conduct to permit this court to make a fair determination of the merits of Partida’s claim. As such,

we reject Partida’s ineffective assistance of counsel claim as without merit.

CONCLUSION

For the foregoing reasons, we affirm both Partida’s and Vigil’s convictions and sentences.

The judgment of the district court is AFFIRMED.

32