United States v. Carbajal

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
_____________________

No. 01-40363
_____________________

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

versus

JESUS CARBAJAL; FAVIAN RAMOS; ANDRES MILAN,
also known as “Cheque;” JULIAN SOLIZ PEREZ,
also known as “Chico,”

Defendants-Appellants.

__________________________________________________________________

Appeals from the United States District Court
for the Eastern District of Texas

_________________________________________________________________
April 25, 2002
Before GARWOOD, JOLLY, and DAVIS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

The defendants in this case were indicted, along with

twenty-eight others, for a conspiracy to distribute cocaine and

heroin in the Dallas area. The jury found the defendants guilty of

conspiracy and attributed at least one kilogram of heroin and at

least five kilograms of cocaine to each defendant. On appeal, the

defendants challenge the district court’s interpretation of the

Sentencing Guidelines and the sufficiency of the evidence against

them. We find no error and affirm.
 I

Following a series of heroin overdoses in 1996 and 1997,

police in Dallas and its surrounding communities enlisted the

assistance of the FBI as part of an investigation of heroin

distribution networks in the area. The resulting Collin/Denton

Counties Drug Task Force identified several large heroin

distributors operating in Dallas, including one led by defendant

Jesus “Tony” Carbajal and one led by Rogelio Moreno. As part of

this investigation, the task force monitored telephone

conversations involving Carbajal, Moreno, and Carbajal’s

lieutenant, Rogelio “Oscar” Saenz. The recorded calls indicated

that both Moreno and Carbajal obtained most of their heroin

supplies from Caesar Rodriguez, a distributor from California.

Based on information from these calls, police calculated that the

Carbajal and Moreno organizations sold more than seventy-five

kilograms of heroin between June 1999 and May 2000.

The task force also conducted ground and air surveillance of

suspected conspirators, which revealed the procedures by which

Carbajal and Moreno resold the drugs to individuals in the Dallas

area.1 Customers would call Carbajal or Moreno to place orders for

heroin and/or cocaine. The customers would be directed to meet a

runner at one of several standard locations in and around Dallas.

1
In their testimony at trial, Rogelio Saenz and other
conspirators confirmed that Carbajal’s organization typically
followed these procedures.

2
At the designated meeting place, the runner would instruct the

customer to follow him to another location to complete the

transaction. Some of these customers lived in Plano, Texas, a

community north of Dallas in the Eastern District of Texas, and

would return home after purchasing the drugs.

In October 2000, a grand jury sitting in the Eastern District

of Texas returned a superseding indictment against thirty-two

defendants connected with the Carbajal and Moreno organizations.2

The indictment alleged that each defendant participated in a

conspiracy to distribute at least one kilogram of heroin and at

least five kilograms of cocaine in violation of 21 U.S.C. §§ 841

and 846. Twenty-eight of the defendants pleaded guilty, and many

of these testified against the four remaining defendants:

Carbajal, Andres Milan, Julian Soliz Perez, and Favian Ramos.

According to the indictment, each defendant played a distinct role

in the overall conspiracy: Carbajal was a leader within the

distribution network, Milan was Carbajal’s alternate heroin

supplier, Perez was an intermediary between the Dallas distributors

and their California supplier, and Ramos purchased heroin from the

same California supplier.

After a three-day trial in December 2000, a jury found all

four defendants guilty of participation in a conspiracy to

distribute heroin and cocaine. In response to special issues

2
The original indictment, which did not include the quantity
of drugs involved, was filed in May 2000.

3
submitted by the court, the jury specifically attributed one

kilogram of heroin and five kilograms of cocaine to each defendant.

The district court sentenced Carbajal to life in prison followed by

ten years of supervised release.3 Milan received a sentence of 140

months in prison followed by five years of supervised release.

Perez received a sentence of 170 months in prison followed by five

years of supervised release. Ramos received a sentence of 148

months in prison followed by four years of supervised release.

On appeal, each defendant raises various issues concerning the

propriety of their sentences and the sufficiency of the evidence

against them. We now turn to address those issues.

II

Carbajal’s primary argument concerns the district court’s

application of Sentencing Guideline § 2D1.1(a)(2) to enhance his

sentence. Section 2D1.1(a)(2) establishes a base offense level of

38 if the defendant is convicted of drug trafficking under 21

U.S.C. § 841(b) “and the offense of conviction establishes that

death or serious bodily injury resulted from use of the substance.”

Based on its finding “beyond a reasonable doubt” that two overdose

deaths resulted from the use of heroin sold by Carbajal’s

organization, the district court concluded that § 2D1.1(a)(2)

3
The district court sentenced the defendants based solely on
the amount of heroin attributable to them.

4
applied to Carbajal and sentenced Carbajal accordingly.4 On

appeal, Carbajal challenges the district court’s determination on

two grounds. First, Carbajal argues that the district court

employed too lenient a standard of causation in determining whether

the deaths “resulted from” heroin purchased from Carbajal’s

organization. Second, he contends that the government did not

present sufficient evidence connecting Carbajal with the deaths to

warrant application of § 2D1.1(a)(2). We review the district

court's interpretation of the Sentencing Guidelines de novo and the

district court’s factual findings for clear error. See United

States v. Paul, 274 F.3d 155, 161 (5th Cir. 2001).

A

Carbajal first argues that the sentence enhancement

established in § 2D1.1(a)(2) applies only if the government can

show that drugs attributable to him were the proximate, reasonably

foreseeable cause of a death. The government responds, and the

district court agreed, that the guidelines impose no such causation

requirement. As a consequence, the district court determined that

Carbajal could be held responsible for overdose deaths if the

government could show a reasonable medical probability that heroin

4
The district court also found by a preponderance of the
evidence that heroin sold by Carbajal caused the overdose death of
a third customer. In addition, the district court increased
Carbajal’s base offense level by four points because Carbajal
organized and led the drug distribution operation.

5
supplied by Carbajal caused the deaths.5 For the reasons set out

below, we agree and hold that § 2D1.1(a)(2) is a strict liability

provision that applies without regard for common law principles of

proximate cause or reasonable foreseeability.

It is well established that our interpretation of the

Sentencing Guidelines is subject to the ordinary rules of statutory

construction. See United States v. Boudreau, 250 F.3d 279, 285

(5th Cir. 2001). If the language of the guideline is unambiguous,

our inquiry begins and ends with an analysis of the plain meaning

of that language. See id. Although we have not found any cases

that specifically decide the standard of causation required by §

2D1.1(a)(2), we are not without guidance on this issue.6 A number

of courts have had occasion to interpret similar language in 21

U.S.C. § 841(b)(1)(C), which prescribes a minimum twenty year

prison term “if death or serious bodily injury results from the use

of [drugs sold by the defendant].” These courts have uniformly

held that § 841(b)(1)(C) applies “without regard for common law

proximate cause concepts.”7 Relying on the plain language of the

5
Perez, Milan, and Ramos were not sentenced under §
2D1.1(a)(2).
6
In United States v. McIntosh, 236 F.3d 968, 971 n.4 (8th Cir.
2001), the Eighth Circuit declined to reach the defendant’s
argument that § 2D1.1(a)(2) applies only if the death is
“reasonably foreseeable.” However, the court noted in dicta that
it “fail[ed] to see how [§ 2D1.1(a)(2)] could be interpreted
differently than [§ 841(b)(1)(A)]; the language is identical.” Id.
7
See United States v. Robinson, 167 F.3d 824, 831 (3d Cir.
1999) (“It is obvious Congress intended in such a case that the

6
statute, the courts determined that the statute does not explicitly

impose a “reasonable foreseeability” requirement and found no

reason to create such a requirement. Because the guideline at

issue here employs essentially the same language as § 841(b)(1)(C),

the government argues that the guideline should be interpreted in

accordance with these cases.

Carbajal contends that, rather than adopting the reasoning of

the cases interpreting § 841(b)(1)(C), we should interpret the

plain language of the guideline provision independently. In

Carbajal’s view, common law proximate cause and foreseeability

principles should apply under § 2D1.1(a)(2) because the plain

meaning of the term “resulted from” requires the drugs sold by the

defendant “to be a direct cause of death, not a possible or remote

cause.” Carbajal therefore argues that § 2D1.1(a)(2) effectively

20-year mandatory minimum [under 21 U.S.C. § 841(b)(1)(C)] would
apply if death or serious bodily injury resulted from the use of
the substance without regard for common law proximate cause
concepts.”); United States v. Patterson, 38 F.3d 139, 145 (4th Cir.
1994) (“[T]he plain language of § 841(b)(1)(C) does not require,
nor does it indicate, that prior to applying the enhanced sentence,
the district court must find that death resulting from the use of
a drug distributed by a defendant was a reasonably foreseeable
event.”); United States v. Rebmann, 226 F.3d 521, 525 (6th Cir.
2000) (“On its face, [21 U.S.C. § 841] is, in effect, a strict
liability statute with respect to the injury or death of another
arising out of the distribution of drugs.”); United States v.
Soler, 275 F.3d 146, 152-53 (1st Cir. 2002) (“[W]hen a defendant
deals drugs and a user of those drugs dies as a result, section
841(b)(1)(C) applies without any independent proof that the death
was a reasonably foreseeable event.”); see also United States v.
McIntosh, 236 F.3d 968, 973 (8th Cir. 2001) (“Congress intended §
841(b)(1)(A)'s enhancement to apply without regard to the
principles of proximate cause or the foreseeability of death or
serious bodily injury.”).

7
subsumes traditional causation principles like foreseeability and

proximate causation.

Like § 841(b)(1)(C), however, the plain language of §

2D1.1(a)(2) does not impose any sort of explicit causation

requirement. Nor can we find a basis to infer that the term

“resulted from” incorporates these principles.8 The Sentencing

Commission could have expressly limited the sentencing enhancement

to cases in which the drugs sold by the defendant foreseeably

caused a death, but it chose not to do so. We therefore hold, in

accordance with our sister circuits’ interpretation of §

841(b)(1)(C), that § 2D1.1(a)(2) is a strict liability provision

and does not require proof of proximate causation or reasonable

foreseeability.9

8
We note that a leading dictionary defines “result from” as
“to proceed, spring, or arise as a consequence, effect, or
conclusion.” Webster’s Third New Int’l Dictionary 1936 (1993).
This definition supports our conclusion that § 2D1.1(a)(2) does not
impose a proximate causation or reasonable foreseeability
requirement.
9
Carbajal further argues that the definition of the term
“offense of conviction” should inform our interpretation of the
standard of causation under § 2D1.1(a)(2). The guidelines do not
define the term “offense of conviction,” but the Third Circuit has
suggested in dicta that “offense of conviction” should be
interpreted to “include[] only the facts underlying the specific
criminal offense for which the defendant was convicted.” United
States v. Pressler, 256 F.3d 144, 157 n.7 (3d Cir. 2001) (citing
the application notes to § 1B1.1). The Third Circuit also observed
that, following Apprendi v. New Jersey, 530 U.S. 466 (2000), most
courts have interpreted § 841 to create a series of distinct
offenses involving a specified quantity of drugs. See id. The
court therefore voiced some concern that the “offense of
conviction” in a drug conspiracy case -- that is, the facts
underlying the elements of the conspiracy offense -- could not

8
 In the alternative, Carbajal urges us to adopt the proximate

cause test applied by the Sixth Circuit in United States v. Swiney,

203 F.3d 397 (6th Cir.), cert. denied, 120 S.Ct. 2678 (2000). The

court in Swiney held that, before the district court may enhance a

defendant’s sentence under § 841(b)(1)(C) based solely on the

conduct of a coconspirator, the court must find that the

coconspirator’s conduct was (1) in furtherance of the conspiracy

and (2) reasonably foreseeable. See id. at 403 (applying U.S.S.G.

§ 1B1.3(a)(1)(B)). The court in Swiney, however, addressed a

situation in which the defendant played no direct role in

distributing or manufacturing the drugs that allegedly caused the

deaths.10 In the present case, by contrast, the government

presented evidence that Carbajal participated directly in or

supervised the sales of heroin that led to three overdose deaths.

Because the district court held Carbajal responsible for the three

overdose deaths based on his own conduct, the holding in Swiney

does not apply.

“establish” that death resulted from drugs sold by the defendant.
We need not decide this issue, however, because the proposed narrow
definition of the term “offense of conviction” does not affect our
conclusion that the plain meaning of the term “resulted from” does
not include a foreseeability requirement or otherwise limit the
scope of § 2D1.1(a)(2) as applied to this case.
10
See McIntosh, 236 F.3d at 974 (“We find Swiney's reasoning
applicable only in those cases in which a conspiracy defendant
played no direct part in manufacturing the drug or in immediately
distributing the drug that caused the death or serious bodily
injury.”); Soler, 275 F.3d at 152 (“When the defendant's own
conduct has caused the harm, those cases [like Swiney] are
inapposite. Rather, a rule of strict liability applies.”).

9
 We therefore hold that the district court did not err in

declining to apply a proximate cause or reasonable foreseeability

test before enhancing Carbajal’s sentence under § 2D1.1(a)(2).

B

The next question is whether, applying the above standard of

causation to the circumstances present here, the district court

clearly erred in attributing the heroin-related deaths to Carbajal.

At the sentencing hearing, the government sought to show that,

between December 1998 and July 1999, three people died of heroin

overdoses in the Dallas area after using heroin purchased from

Carbajal.

The government first presented evidence that Carbajal’s

organization sold heroin to Josh Harmon that resulted in Harmon’s

death. According to the testimony at the sentencing hearing,

Harmon and two friends telephoned Carbajal’s organization on

December 19, 1998 to place an order for heroin. Later that day,

they met with Carbajal’s lieutenant, “Oscar” Saenz, and purchased

a quantity of heroin.11 Harmon and his friends then mixed the

heroin with an over-the-counter sleeping aid and divided the

mixture into capsules. Harmon received about forty of the

capsules, some of which he consumed later that night at a party.

The next morning, Harmon’s friends had difficulty reviving him, and

they attempted to resuscitate him. When these efforts failed,

11
The government also presented testimony that Saenz obtained
his heroin solely from Carbajal.

10
Harmon was eventually left outside a hospital in Dallas, where he

was pronounced dead.

At the sentencing hearing, the government’s medical expert

testified that, despite traces of other drugs in Harmon’s blood,

there was a reasonable medical probability that heroin was the

cause of Harmon’s death. Although Harmon’s friend testified that

Harmon could have purchased additional heroin from someone at the

party, the friend also testified that heroin users ordinary consume

between ten and fifteen capsules over a twelve hour period --

considerably fewer than the forty capsules that Harmon received

earlier that day. Taken together, we find this evidence sufficient

to support the district court’s conclusion that Carbajal, acting

through Saenz, sold Harmon the heroin that resulted in his death.12

Carbajal further argues that Harmon’s death was the product of

a superseding cause and therefore did not “result[] from” the

heroin he purchased from Carbajal’s organization. Specifically,

Carbajal argues that Harmon’s death was caused by his friends’

failure to seek immediate medical attention. Even assuming that

the concept of superseding causes applies under § 2D1.1(a)(2),

however, this argument fails because negligent (as opposed to

grossly negligent or intentional) acts by third parties cannot be

12
Because the district court found that Harmon’s death
“resulted from” heroin sold by Carbajal beyond a reasonable doubt,
we need not address whether the district court could have applied
a lower standard of proof in this context.

11
the superseding cause of an injury if they are foreseeable.13 In

this case, there is no evidence that Harmon’s friends engaged in

grossly negligent conduct or intended to injure Harmon by failing

to take him promptly to the hospital.14 Because the failure to seek

immediate treatment for a heroin overdose is clearly a foreseeable

outcome, any such delay could not break the causal chain between

Harmon’s death and the sale of heroin by Carbajal.

The government also presented evidence that Mark Tuinei, a

former offensive lineman for the Dallas Cowboys, purchased heroin

from Saenz that led to Tuinei’s death. Specifically, the district

court heard testimony that Tuinei and three others –- Keelan

Murray, Wes Malone, and Nicki Sualua -- purchased a quantity of

heroin from Saenz at a gas station in Dallas. After receiving some

instruction from Murray, Tuinei “cooked” and injected the heroin

13
See United States v. Rodriguez, 279 F.3d 947, 952 (11th Cir.
2002) (“It is also a basic principle of criminal law that
foreseeable negligent acts of a third party do not sever the chain
of causation.”); 1 Wayne R. LaFave & Austin W. Scott, Jr.,
Substantive Criminal Law § 3.12, at 408-09 (1986) (same); see also
United States v. Guillette, 547 F.2d 743, 749 (2d Cir. 1976)
(“Where such intervening events [as negligent medical treatment]
are foreseeable and naturally result from a perpetrator's criminal
conduct, the law considers the chain of legal causation unbroken
and holds the perpetrator criminally responsible for the resulting
harm.”).
14
Cf. Rodriguez, 279 F.3d at 952 (holding that a failure to
obtain prompt medical treatment for overdosing heroin user “did not
break the chain of legal causation” under 21 U.S.C. §
841(b)(1)(C)); United States v. Purchess, 107 F.3d 1261, 1270-71
(7th Cir. 1997) (rejecting the argument that victim’s actions were
a superseding cause of his own death because he refused medical
treatment).

12
into his arm. Tuinei immediately passed out on a couch. Although

Tuinei had stopped breathing, Murray successfully revived him by

performing CPR. Because Tuinei remained unconscious, however,

Murray and Sualua carried him to his car. Sualua drove Tuinei home

and stayed with Tuinei while he slept it off. When Tuinei did not

wake up the next morning, Sualua called emergency paramedics, who

pronounced Tuinei dead.

At the sentencing hearing, the government’s medical expert

testified that the cause of Tuinei’s death was the mixed effect of

heroin and ecstasy and that there was a reasonable medical

probability that heroin was “primarily responsible.” Here again,

the district court did not clearly err in attributing Tuinei’s

death to heroin purchased from Carbajal’s organization. Cf. United

States v. Cathey, 259 F.3d 365, 368 (5th Cir. 2001) (affirming an

enhanced sentence based on evidence that a death resulted from the

combined effect of the heroin provided by the defendant and

cocaine).

In sum, we find that the government presented sufficient

evidence to support the district court’s determination that the

overdose deaths of Harmon and Tuinei “resulted from” the heroin

they purchased from Carbajal.15 As a consequence, the district

15
The government also presented evidence that Kyle Walker, a
regular heroin user, died after ingesting heroin he obtained from
his girlfriend. An officer testified that, before she fled the
country, Walker’s girlfriend told the officer that she had
purchased heroin from Saenz on the day of Walker’s death. As noted
above, § 2D1.1(a)(2) applies if the government can prove that one

13
court did not err in applying § 2D1.1(a)(2) and sentencing Carbajal

to life imprisonment.16

III

Carbajal next challenges the district court’s decision to

exclude evidence that allegedly undermines the pre-sentence

report’s conclusion that the deaths of Harmon, Tuinei, and Walker

were attributable to heroin sold by Carbajal. During the

sentencing hearing, Carbajal sought to present cross-examination

testimony by the government’s medical expert that Harmon, Tuinei,

and Walker may not have died if they had received prompt medical

attention. We review for an abuse of discretion the district

court’s decision to exclude evidence rebutting information in the

death resulted from drugs sold by the defendant. Because the
government has satisfied this requirement with respect to Harmon
and Tuinei, we need not address the sufficiency of the evidence
connecting Carbajal to Walker’s death.
16
Carbajal also contends that the sentencing enhancement based
on his prior conviction and the enhancement based on the heroin-
related deaths are elements of an aggravated offense that must be
submitted to the jury and proven beyond a reasonable doubt under
Apprendi v. New Jersey, 530 U.S. 466 (2000). The government argues
that Carbajal affirmatively waived these arguments by adopting his
co-defendants' pre-trial motion -- which was granted by the
district court -- to redact from the indictment and to withhold
from the jury any evidence of the three heroin-related deaths.
After reviewing the record, however, we find it clear that Carbajal
did not join his co-defendants’ motion and expressly preserved his
arguments under Apprendi. In any event, Carbajal concedes that
these arguments are foreclosed by precedent because his sentence
fell within the range authorized by the statute of conviction. See
Apprendi, 530 U.S. at 490 (“Other than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.”); 21 U.S.C. § 841(b)(1)(A).

14
pre-sentence report. See Fed. R. Crim. P. 32(c)(3)(A) (providing

that the defendant may, “in the discretion of the court, introduce

testimony . . . relating to any alleged factual inaccuracy

contained in [the report]”).

As a general rule, information in the pre-sentence report is

presumed reliable and may be adopted by the district court “without

further inquiry” if the defendant fails to demonstrate by competent

rebuttal evidence that the information is “‘materially untrue,

inaccurate or unreliable.’” United States v. Parker, 133 F.3d 322,

329 (5th Cir. 1998) (citation omitted).

In this case, Carbajal sought to show that the pre-sentence

report was inaccurate because it did not consider whether delays in

obtaining medical attention may have contributed to the three

heroin-related deaths. As we noted earlier, however, the failure

to seek prompt medical attention does not constitute a superseding

cause of the victims’ deaths unless that failure is grossly

negligent or intended to injure the victim. See Rodriguez, 279

F.3d at 952; Cathey, 259 F.3d at 368; Purchess, 107 F.3d at 1270-

71. The testimony offered by Carbajal, in contrast, merely

indicated that Harmon’s chance of survival would have “improved” if

his friends had taken him to the hospital immediately. Because the

testimony did not indicate that the failure to seek prompt medical

attention was grossly negligent or unforeseeable, the testimony

would not support a finding that the three deaths were the product

15
of a superseding cause. We therefore conclude that the district

court did not abuse its discretion by refusing to consider the

testimony in its sentencing determination.

IV

Carbajal next argues that the district court erred by imposing

a sentence greater than that authorized for a cocaine-only

conspiracy. The superseding indictment in this case alleged a

conspiracy to distribute at least one kilogram of heroin and at

least five kilograms of cocaine. Although the jury specifically

attributed more than one kilogram of heroin and more than five

kilograms of cocaine to each defendant, the district court

explicitly declined to consider the jury’s finding on cocaine in

determining their respective sentences. According to Carbajal, the

district court effectively granted a motion for judgment of

acquittal with respect to the cocaine component of the conspiracy

and thus rendered the jury’s verdict on the alleged multi-drug

conspiracy “ambiguous.” Carbajal contends that, as a consequence,

the district court was required to sentence the defendants within

the statutory maximum for the drug carrying the least severe

penalty -- in this case, cocaine.17

17
As Carbajal concedes, the appellants forfeited this argument
by failing to raise it at the sentencing hearing. See United
States v. Olano, 507 U.S. 725, 730-36 (1993). We therefore have
discretion to reverse the district court's ruling only if they can
demonstrate plain error. See id. at 733; Fed. R. Crim. P. 52(b).

16
 Carbajal’s argument depends upon his assertion that the jury

verdict in this case became ambiguous when the district court

disregarded the jury’s finding on the quantity of cocaine

attributable to the conspiracy. A jury verdict in a criminal case

is ambiguous if the defendant is charged with a multiple-drug

conspiracy and the jury verdict does not specify whether the jury

found the defendant guilty with respect to some or all of the

drugs. See United States v. Cooper, 966 F.2d 936, 940 (5th Cir.

1992). In this situation, the sentencing court “is limited to

imposing a sentence that does not exceed the maximum penalty under

the statute providing the least severe punishment.”18

The defendants in the present case, however, cannot benefit

from this rule because the jury verdict was not ambiguous. To the

contrary, the jury specifically found that (1) each defendant

participated in a conspiracy to distribute heroin and cocaine (2)

at least one kilogram of heroin and at least five kilograms of

cocaine were attributable to each defendant. The jury’s verdict

leaves no doubt that it found a conspiracy with respect to both

cocaine and heroin. Although the district court may have

implicitly concluded that the jury’s findings on the amount of

cocaine attributable to the conspiracy were not supported by the

18
Cooper, 966 F.2d at 940-41; see Edwards v. United States,
523 U.S. 511, 515 (1998) (noting that a sentence imposed based on
a multiple-object conspiracy after an ambiguous general jury
verdict cannot exceed the statutory maximum for a conspiracy
involving only one drug).

17
evidence, such a conclusion does not render ambiguous the jury’s

findings on the amount of heroin attributable to the conspiracy.

Thus, the district court properly sentenced the defendants based on

the jury’s finding that the conspiracy involved at least one

kilogram of heroin.

V

Carbajal also contends that the government presented

insufficient evidence to prove that venue in the Eastern District

of Texas was proper. Carbajal did not, however, raise a proper

objection to venue before the jury’s verdict and therefore waived

this issue on appeal.19 See United States v. Carreon-Palacio, 267

F.3d 381, 390-91 (5th Cir. 2001). Even assuming that Carbajal did

preserve this issue for appeal, venue in the Eastern District was

proper because the government presented evidence that a convicted

coconspirator purchased heroin from Carbajal and resold it in

Denton County, which is located in the Eastern District of Texas.

19
Carbajal responds that his motion for judgment of acquittal
at the close of the government’s case was sufficient to raise an
issue concerning venue. Carbajal’s motion for acquittal argued
that “the Government has not presented sufficient evidence that
would allow a rational trier of fact to find [Carbajal] guilty
beyond a reasonable doubt of what has been charged against him.”
This motion, standing alone, is not adequate to put the government
or the district court on notice that Carbajal challenged venue in
the Eastern District of Texas. Although “[w]aivers of venue rights
by silence are not to be readily inferred” and a pre-trial
objection to venue is not required in all circumstances, Carbajal
failed to preserve this issue for appeal by specifically raising
the issue in his motion for acquittal or by requesting a jury
instruction on venue. Carreon-Palacio, 267 F.3d at 391-92
(citation and internal quotation marks omitted).

18
See United States v. Pomranz, 43 F.3d 156, 158 (5th Cir. 1995)

(holding that venue is proper in any district where any act in

furtherance of the conspiracy took place).

VI

Milan, Perez, and Ramos each argue that the government

presented insufficient evidence to prove beyond a reasonable doubt

that they participated in a conspiracy to distribute cocaine and

heroin. Where the defendant has preserved his challenge to the

sufficiency of the government’s evidence, we review de novo the

district court’s denial of a motion for judgment of acquittal. See

United States v. Sanchez, 961 F.2d 1169, 1180 (5th Cir. 1992).

Viewing the evidence in the light most favorable to the government,

we must determine whether any rational jury could conclude from the

evidence presented at trial that the government had proven all of

the elements of the offense beyond a reasonable doubt. See United

States v. Myers, 104 F.3d 76, 78 (5th Cir. 1997).

To show the existence of a drug conspiracy in violation of 21

U.S.C. § 846, the government must prove: “1) an agreement existed

to violate drug laws; 2) the appellants knew of the agreement; and

3) the appellants voluntarily participated in it.” United States

v. Baptiste, 264 F.3d 578, 587 (5th Cir. 2001) (citation omitted).

In this case, Milan, Perez, and Ramos contest the sufficiency of

the government’s evidence connecting them to the alleged drug

distribution conspiracy.

19
 Perez argues that the evidence does not support the

government’s contention that he knowingly participated in the

alleged conspiracy. We disagree. Rogelio Moreno, the leader of

one of the heroin distribution operations involved in the

conspiracy, testified at trial that he obtained cocaine from Perez

on two separate occasions. Moreno further testified that (1) Perez

had unsuccessfully attempted to obtain heroin for Moreno and (2)

Moreno purchased heroin from Caesar Rodriguez in Perez’s apartment.

This evidence is sufficient to support the jury’s conclusion that

Perez was a knowing participant in the conspiracy.20

Milan argues that the government’s evidence connecting him to

the conspiracy is inconclusive or, at most, discloses a single drug

transaction. To support its theory that Milan was Carbajal’s back-

up heroin supplier, the government presented evidence that Carbajal

20
Perez also argues that the district court abused its
discretion by denying his motion to sever his trial from that of
the other defendants. Specifically, he contends that the joint
trial with Carbajal created an unacceptable risk that the jury
would find him guilty by association. To show that the district
court abused its discretion in denying his motion to sever, Perez
must demonstrate prejudice from a joint trial (1) “to such an
extent that the district court could not provide adequate
protection” and (2) that outweighed the government’s interest in
judicial economy. United States v. Richards, 204 F.3d 177, 193
(5th Cir. 2000). Perez has not demonstrated “clear, specific and
compelling prejudice that resulted in an unfair trial,” United
States v. Bullock, 71 F.3d 171, 174 (5th Cir. 1995), because (1)
the conspiracy alleged by the government was not complex, (2) the
trial involved only four defendants, and (3) the district court
instructed the jury to consider each defendant separately. Cf.
Richards, 204 F.3d at 193-94 (holding that a joint conspiracy trial
was proper based on the lack of complexity of the conspiracy, the
number of defendants, and an appropriate jury instruction).

20
turned to Milan for heroin supplies when Carbajal began to run low.

This evidence, viewed in conjunction with evidence of Milan’s

actual sale of heroin to Carbajal, provides a sufficient basis from

which the jury could reasonably infer that Milan knowingly

participated in the conspiracy.21 See United States v. Gourley, 168

F.3d 165, 169 (5th Cir. 1999); cf. United States v. Wilson, 116

F.3d 1066, 1076 (5th Cir. 1997) (“Parties who knowingly participate

with core conspirators to achieve a common goal may be members of

a single conspiracy.”), vacated in part on other grounds by United

States v. Brown, 161 F.3d 256 (5th Cir. 1998) (en banc).

Ramos similarly argues that the evidence shows, at most, that

he was a “knowing spectator at the scene of [a] crime.” Because

Ramos failed to preserve this issue for appeal, however, our

“review is limited to determining whether there was a manifest

miscarriage of justice, that is, whether the record is devoid of

evidence pointing to guilt.”22 At trial, the government presented

21
Milan also argues that the jury’s finding that he was
responsible for at least one kilogram of heroin and at least five
kilograms of cocaine is not supported by the evidence. As Milan
acknowledges, however, the district court did not consider the
jury’s cocaine finding in sentencing him. He further argues that
Apprendi v. New Jersey, 530 U.S. 466 (2000), requires a new trial
because the jury did not have sufficient guidance concerning how to
determine the quantity of each drug attributable to each defendant.
The rule in Apprendi does not apply here, however, because Milan’s
140-month sentence did not exceed the maximum sentence for
distribution of an unspecified amount of heroin under 21 U.S.C. §
841(b)(1)(C). See Apprendi, 530 U.S. at 490.
22
United States v. Delgado, 256 F.3d 264, 274 (5th Cir.
2001)(internal quotation marks and citations omitted). Unlike his
co-defendants, Ramos presented evidence in his defense and was

21
evidence that, in the course of searching Ramos’s car after he was

arrested, police officers found a package containing 140 grams of

cocaine and 126 grams of heroin on the floorboard where Ramos was

sitting. The record also supports a reasonable inference that Ramos

obtained the package from Caesar Rodriguez, the primary supplier

for the Carbajal and Moreno organizations, shortly before Ramos was

arrested. In sum, the record is not devoid of evidence connecting

Ramos with the conspiracy alleged in the indictment.23

VII

Taking a slightly different tack, Milan argues that the

government’s evidence at trial proved, at most, the existence of

multiple conspiracies rather than the single conspiracy alleged in

the indictment. Because the government could not show that Milan

participated in all of the distinct conspiracies, Milan argues that

this variance prejudiced him by exposing the jury to evidence of

other conspiracies with which he was not connected.

To prevail on this claim, Milan must show (1) an actual

variance between the allegations in the indictment and the proof at

trial and (2) prejudice flowing from the variance that affected his

substantial rights. See United States v. Morris, 46 F.3d 410, 414

therefore required to renew the motion for acquittal after he
rested his case. Because he failed to do so, Ramos forfeited his
objection to the sufficiency of the evidence. See id.
23
We need not decide whether the government’s evidence would
have been sufficient to sustain Ramos’s conviction if he had
renewed his motion for acquittal at the close of all the evidence.

22
(5th Cir. 1995). We conclude that, even assuming Milan can show a

variance, he has not shown prejudice sufficient to warrant

reversal.

As a general rule, “‘where the indictment alleges a single

conspiracy and the evidence establishes each defendant's

participation in at least one conspiracy[,] a defendant's

substantial rights are affected only if the defendant can establish

reversible error under general principles of joinder and

severance.’” United States v. Pena-Rodriguez, 110 F.3d 1120, 1128

(5th Cir. 1997) (citations omitted, alteration in original). To

show that the district court abused its discretion by trying him

with the other defendants, Milan must demonstrate “‘specific and

compelling prejudice that resulted in an unfair trial and such

prejudice must be of a type against which the trial court was

unable to afford protection.’” Pena-Rodriguez, 110 F.3d at 1128

(citation omitted); see also Fed. R. Crim. P. 14.

In this case, Milan relies on a general allegation that the

evidence concerning his co-defendants’ activities -- particularly

those involving the sale of cocaine -- had a prejudicial “spillover

effect” on his case because he did not participate in those

activities. But the conspiracy alleged here was not particularly

complex, and the district court instructed the jury to consider the

charges against each defendant separately. Under these

circumstances, it seems clear that the jury would have no

23
difficulty making an individualized assessment of the evidence

against each defendant. Because Milan has failed to “‘isolate

events occurring in the course of a joint trial’” that may have

impaired his defense and to “‘demonstrate that such events caused

substantial prejudice,’”24 we conclude that reversal is not

warranted in this case.25

VIII

24
United States v. Posada-Rios, 158 F.3d 832, 863 (5th Cir.
1998) (quoting United States v. Ellender, 947 F.2d 748, 755 (5th
Cir. 1991)); cf. Pena-Rodriguez, 110 F.3d at 1129 (finding no abuse
of discretion in trying defendants jointly in part because “the
verdicts against the appellants in this case did not turn on
particularly complex evidence that was likely to confuse the
jury”).
25
We similarly find no merit in Milan’s argument that the
district court erred by declining to instruct the jury on the
difference between a single conspiracy and multiple conspiracies.
A multiple conspiracy instruction is required “where the indictment
charges several defendants with one (1) overall conspiracy, but the
proof at trial indicates that some of the defendants were only
involved in separate conspiracies unrelated to the overall
conspiracy charged in the indictment." United States v. Greer, 939
F.2d 1076, 1088 (5th Cir. 1991) (citations omitted). We review
Milan’s claim only for plain error because Milan did not request an
instruction on multiple conspiracies at trial. See United States v.
Castaneda-Cantu, 20 F.3d 1325, 1334 (5th Cir. 1994). Although
Perez did request such an instruction, Milan did not adopt Perez’s
request or independently object to the district court’s denial of
the request. Based on our review of the record, we conclude that
Milan has not demonstrated plain error.

Moreover, although Perez adopted Milan’s arguments on appeal,
Perez has not identified evidence indicating that he was “only
involved in separate conspiracies unrelated to the overall
conspiracy charged in the indictment." Greer, 939 F.2d at 1088.
Consequently, Perez cannot show that he was entitled to an
instruction on multiple conspiracies.

24
 For the reasons set out above, we AFFIRM the judgment of the

district court.

1 AFFIRMED.

25