United States v. Maseratti

UNITED STATES COURT OF APPEALS
for the Fifth Circuit
_____________________________________

No. 90-2783
_____________________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JOSEPH MICHAEL MASERATTI, GABRIEL RUIZ,
MIGUEL ROCHA, JUAN MANUAL ZAMORA,
JOHNNY DAVIS, JOSE SILVA, DAVID PIERATT,
BONIFACIO FILOTEO, DEBORAH ANN GARZA,
SEVERO GARZA, JR., and RAMIRO GONZALES ALVARADO,

Defendants-Appellants.

____________________________________

No. 91-2088
______________________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JOHNNY DAVIS,

Defendant-Appellant.

______________________________________

No. 91-2332
______________________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

ROQUE URDIALES GARCIA,

Defendant-Appellant.
 ________________________________________________

Appeals from the United States District Court
for the Southern District of Texas
__________________________________________________
(August 27, 1993)

Before REAVLEY, DUHÉ, and BARKSDALE, Circuit Judges.

DUHÉ, Circuit Judge:

Twelve of 28 defendants challenge their drug conspiracy

convictions arising out of a large marijuana and cocaine

enterprise. We affirm. Eight also contest their sentences. We

vacate six of their sentences and remand those six for

resentencing.

Background

This case involves a very large and long lasting drug

conspiracy. In a 40 count indictment, the Appellants, along with

16 others, were charged with conspiracy to possess cocaine with

intent to distribute (Count 1), conspiracy to possess marijuana

with intent to distribute (Count 2), conspiracy to import cocaine

(Count 3), possession of cocaine with intent to distribute

(Counts 4, 9, 26, 29), distribution of cocaine (Counts 5, 10,

27), possession of marijuana with intent to distribute (Counts 6,

12), distribution of marijuana (Counts 8, 16), importation of

cocaine (Count 31), use of the telephone to facilitate drug

trafficking (Counts 13-15, 17-25, 28-30, 32-38), continuing

criminal enterprise (Count 40), and travel in interstate commerce

to facilitate drug trafficking (Counts 7, 11), all in violation

2
of 21 U.S.C. §§ 841(a)(1), 846, 963, 843(b), and 848, and 18

U.S.C. § 1952.

Appellant Roque Garcia operated this extensive marijuana and

cocaine trafficking enterprise in Houston. Appellants Zamora,

Rocha, Silva, Pieratt, and Ruiz at various times assisted in the

distribution of the drugs. For most of the conspiracy's duration

Garcia used an apartment in Houston as his headquarters, but the

drugs were stored elsewhere, including the homes of Silva and

Zamora. Appellants Alvarado and Filoteo supplied some drugs, and

appellants Severo and Deborah Garza maintained a supply of

marijuana for the enterprise at their home. Appellants Davis and

Maseratti were regular customers of the enterprise.

By means of surveillance, a pen register, and a wire tap,

the DEA closely observed the Garcia enterprise for approximately

a year. At various times during the DEA's investigation, arrests

were made and drugs were confiscated. The DEA was careful,

however, to stage the arrests so that they appeared not to be

connected to the surveillance. By the time all was said and

done, the DEA had indicted 28 persons connected with the Garcia

enterprise. After a jury trial, all Appellants were convicted on

all counts in which they were charged.

The Appellants raise numerous claims on appeal. They

contend (1) the government's exercise of peremptory challenges

violated the Fifth Amendment, (2) the court's refusal to give a

buyer-seller jury instruction was error, (3) the court's refusal

to dismiss a juror who, during the trial, applied for a

3
government job was error, (4) the importation conspiracy was

improperly joined with the domestic conspiracies, (5) Appellant

Davis' car was unlawfully searched, (6) the wiretap order was

unlawfully issued, (7) a fatal variance exists between the

conspiracies charged and the conspiracies proven, (8) the

evidence was insufficient to support the convictions, and (9) the

sentences were unlawfully imposed. We consider each in turn.

I. Batson Challenge. The Appellants argue that the government

used three of its peremptory strikes to exclude prospective

jurors; two black females, and one Hispanic female, solely

because of their race and ethnicity in violation of Batson v.

Kentucky, 476 U.S. 79 (1986) and the Fifth Amendment. Appellants

objected to the strikes and the prosecutor gave the following

explanations:

One black woman was struck because "she appeared to be

sleeping during part of the voir dire." The second black woman

was struck because she also was not paying attention during the

voir dire, and because the prosecutor did not like the fact that

she was a City of Houston employee. The Hispanic woman was

struck because: It was my impression

from my experience in

Hispanic culture that she
might tend to be
sympathetic toward Debbie
Garza's predicament in
that she basically is
doing what the male in
the species is telling

4
 her to do, and might be
too sympathetic . . . .

The district court overruled Appellants' Batson objection.

The Supreme Court held in Batson that a defendant can

establish an equal protection violation based on the government's

use of peremptory challenges to remove black potential jurors in

his case. Batson, 476 U.S. at 96. If the defendant establishes

a prima facie case that the prosecutor used peremptory challenges

to remove potential jurors because of their race, the burden

shifts to the prosecutor to provide race neutral explanations.

The court must then determine, in light of all of the facts and

circumstances, whether the defendant has carried his burden to

establish purposeful discrimination. Id. at 94-98.

When Appellants objected to the prosecutor's exercise of

peremptory challenges in this case, the court, without expressly

determining whether a prima facie case was made out, asked the

prosecutor to explain his challenges. In Hernandez v. New York,

111 S.Ct. 1859 (1991), the Supreme Court stated that "[o]nce a

prosecutor has offered a race-neutral explanation for the

peremptory challenges and the trial court has ruled on the

ultimate question of intentional discrimination, the preliminary

issue of whether the defendant had made a prima facie showing

becomes moot." Id. at 1866.

In evaluating the race-neutrality of an attorney's

explanation, we must determine whether the challenges violate the

Fifth Amendment as a matter of law. Id. at 1866. Proof of

racially discriminatory intent or purpose is required to show a

5
violation of the Fifth Amendment. Arlington Heights v.

Metropolitan Housing Development Corp., 429 U.S. 252, 264-65

(1977). "Discriminatory purpose implies more than intent as

volition or intent as awareness of consequences. It implies that

the decision maker selected a particular course of action at

least in part because of, not merely in spite of, its adverse

effects upon an identifiable group." Hernandez, 111 S.Ct. at

1866 (citations omitted).

Before addressing the merits of Appellants' argument,

however, we address the matter of timeliness. The trial court

questioned the timeliness of Appellants' Batson objection because

they asserted their objection after the unselected venirepersons

had been dismissed. One defense lawyer voiced his impression

that a Batson claim was timely until the jury was sworn. The

court's subsequent general denial of relief does not indicate

whether timeliness was the basis for its ruling. No one

requested clarification.

The notion that a Batson claim is timely until the jury is

sworn is incorrect. This Court has held "that to be timely, the

Batson objection must be made before the venire is dismissed and

before the trial commences." United States v. Romero-Reyna, 867

F.2d 834, 837 (5th Cir. 1989), cert denied, 494 U.S. 1084 (1990).

Therefore, this Batson claim can be dismissed as untimely.1 Even

1
Although it is not crystal clear in the record that the
veniremen had been dismissed, we see no reason for the trial
judge to raise the issue otherwise. Additionally, once the
venire was dismissed from the courtroom, the opportunity for them
to be tainted was too great, and it was the responsibility of the

6
considering the merits of the claim, however, we conclude that

the district court's ruling is correct.

While the prosecutor's explanation with regard to the

Hispanic woman appears on its face to offend Hernandez, the fact

that he seated another Hispanic female and that the prosecutor

himself is Hispanic shows that this challenge was particular to

this female and not a "stereo typical assumption" or a "gross

racial stereotype or anecdotal generalization" about Hispanics.

See Hernandez, 111 S.Ct. at 1867; United States v. Greene, 53 Cr.

L. 1003 (C.M.A. No. 67297, February 25, 1993).

As to the two black women excluded, the explanations given

by the prosecutor were clearly race-neutral, and Appellants'

arguments are without merit.

II. Buyer-Seller Instructions. Ten of the twelve Appellants

argue that the trial judge erred when he refused to give a buyer-

seller instruction to the jury in the course of his discussion of

the law of conspiracy. We disagree.

During the charge conference, the Appellants requested a

charge based on United States v. Hughes, 817 F.2d 268, 273 (5th

Cir. 1987), cert denied, 484 U.S. 858 (1987), which included

language to the effect that the existence of a mere buyer-seller

relationship in and of itself is not sufficient to prove a

conspiracy. They also requested that the multiple conspiracy

Defendants, as the movers, to insure that the integrity of the
jury security was preserved.

7
charge submitted contain similar language. The court denied

these requests.

Appellants are entitled to an instruction on any recognized

defense for which there exists evidence sufficient for a

reasonable jury to find in their favor. Mathews v. United

States, 485 U.S. 58, 63 (1988)(citations omitted). As we stated

in United States v. Schmick,2 "it is reversible error to refuse a

charge on a defense theory for which there is an evidentiary

foundation and which, if believed, would be legally sufficient to

render the accused innocent." However, a trial judge is "under

no obligation to give a requested instruction that misstates the

law, is argumentative, or has been covered adequately by other

instructions." United States v. L'Hoste, 609 F.2d 796, 805 (5th

Cir.), cert. denied, 449 U.S. 833 (1980)(citations omitted).

While it is true that a buyer-seller relationship, without

more, will not prove a conspiracy,3 evidence of such activity

goes to whether the defendant intended to join in the conspiracy

or whether his or her participation was more limited in nature.

The questions of whether a defendant is a buyer/seller, and

whether a defendant is a member of a conspiracy are mutually

exclusive. When Congress enacted the current drug laws, it

eliminated references to selling drugs as the basis for criminal

activity, and substituted the broader concept of distribution as

2
904 F.2d 936, 943 (5th Cir. 1990), cert denied, ---
U.S. ---, 111 S.Ct. 782 (1991).
3
Hughes, 817 F.2d at 273.

8
the prohibited conduct. United States v. Johnson, 481 F.2d 645,

647 (5th Cir. 1973). As a result, the procuring agent defense

was eliminated. Id. Conspiracies, and culpable parties thereto

were expanded. One becomes a member of a drug conspiracy if he

knowingly participates in a plan to distribute drugs, whether by

buying, selling or otherwise. The drug conspiracy laws focus on

whether the participants knowingly joined an agreement to

distribute drugs in violation of the law. We conclude that if

the evidence showed that a defendant is merely a buyer or seller,

the elements necessary to prove a conspiracy would be lacking,

and a not guilty verdict would result. In this case, the jury

instruction given by the court accurately reflected the law on

conspiracy. The buyer-seller relationship has been adequately

covered by this other instruction. L'Hoste, 609 F.2d at 805.

III. Juror seeking job with GSA. The Appellants argue that the

court erred in not excusing a juror who, during trial, sought

employment as a security guard with the General Services

Administration (GSA). About 4 weeks into trial, the Defendants

advised the court that Juror Cardenas was repeatedly seen going

into the GSA security office in the courthouse during breaks and

lunch periods. They asked the court to question Cardenas and GSA

regarding whether Cardenas was seeking employment with them. The

court refused. Several days later, the Defendants renewed their

request. Apparently, Mr. Cardenas had continued to visit the GSA

9
office on a daily basis. The defense requested that Cardenas be

replaced with an alternate juror.

Prior to submitting the case to the jury, the court finally

agreed to let defense counsel question Cardenas about his

activities. Cardenas admitted that he was visiting with the GSA

security officers and that he had applied for a position as a

security guard. He testified that he had received a positive

response to his application pending his passing several tests.

Cardenas also testified that this would not affect his ability as

a juror. Defense counsel requested that he be removed, but the

court refused.

We review for abuse of discretion. United States v.

O'Neill, 767 F.2d 780, 785 (11th Cir. 1985). Appellants had the

burden of proving by a preponderance of the evidence that

Cardenas was actually biased. De La Rosa v. Texas, 743 F.2d 299,

306 (5th Cir. 1984), cert denied, 470 U.S. 1065 (1985); Smith v.

Phillips, 455 U.S. 209, 215-18 (1982).4 Appellants have failed

to carry this burden. Even if Cardenas had held a job as a

security guard with the GSA at the time of jury selection, he

would not have been ineligible to serve as a juror. Tinsley v.

Borg, 895 F.2d 520, 529 (9th Cir. 1990), cert denied, 498 U.S.

1091 (1991). The district court acted completely within its

discretion.

4
The appellants contend that the facts in this case are so
extreme that they fit the situation Justice O'Connor described in
her concurring opinion in Smith, and that they only have to show
implied bias. We disagree.

10
IV. Sufficiency of the Evidence. All Appellants except Garcia,

Zamora, and Silva challenge the sufficiency of the evidence

supporting some or all of the counts of which they were

convicted. Before addressing the individual claims, we set

forth the principles governing our review of sufficiency issues.

We examine the evidence, together with all credibility choices

and reasonable inferences, in the light most favorable to the

government. United States v. Rena, 981 F.2d 765, 771 (5th Cir.

1993). The verdict must be upheld if the court concludes that

any reasonable trier of fact could have found that the evidence

established guilt beyond a reasonable doubt. Id. at 770. The

evidence need not exclude every reasonable hypothesis of

innocence or be wholly inconsistent with every conclusion except

that of guilt. United States v. Lopez, 979 F.2d 1024, 1028 (5th

Cir. 1992), cert denied, --- U.S. ---, 113 S.Ct. 2349 (1993).

The government, however, must do more than pile inference upon

inference. United States v. Cardenas Alvarado, 806 F.2d 566, 570

(5th Cir. 1986). Finally, the standard is the same whether the

evidence is direct or circumstantial. Rena, 981 F.2d at 771.

In a narcotics conspiracy prosecution, the government must

prove beyond a reasonable doubt: (1) that an agreement to violate

the narcotics laws existed between two or more persons, (2) that

each alleged conspirator knew of the conspiracy and intended to

join it, and (3) that each alleged conspirator did participate in

the conspiracy. United States v. Medina, 887 F.2d 528, 530 (5th

11
Cir. 1989); United States v. Guerra-Marez, 928 F.2d 665 (5th Cir.),

cert. denied, --- U.S. ---, 112 S.Ct. 322(1991). Proof of any

element may be by circumstantial evidence, and "'[c]ircumstances

altogether inconclusive, if separately considered, may, by their

number and joint operation, . . . be sufficient to constitute

conclusive proof.'" United States v. Roberts, 913 F.2d 211, 218

(5th Cir. 1990), cert. denied, --- U.S. ---, 111 S.Ct. 2264 (1991)

(quoting United States v. Lechuga, 888 F.2d 1472, 1476 (5th Cir.

1989)).

After a careful review of the record, we conclude that, viewed

in the light most favorable to the verdict, the evidence is

sufficient as to all defendants.

Appellants Maseratti, Filoteo, Alvarado, and Davis contend

that they should not have been convicted of conspiracy to possess

either marijuana or cocaine, or both, because the evidence proved

only a buyer-seller relationship between them and the Garcia

enterprise. Although a buyer-seller relationship, without more,

will not prove a conspiracy, the evidence was sufficient for the

jury to conclude that the activities of these Appellants went

beyond that of a mere buyer-seller.5 See Hughes, 817 F.2d at 273;

United States v. Thomas, 768 F.2d 611, 615 (5th Cir. 1985).

Maseratti was a repeat marijuana customer. As early as June

7, 1989, telephone conversations concerning drug distribution

5
Distribution means "to deliver . . . a controlled
substance." 21 U.S.C. § 802(11). The statute defines "deliver"
as the "transfer of a controlled substance, whether or not there
exists an agency relationship." 21 U.S.C. § 802(8).

12
intercepted between Roque Garcia and another defendant, Ayala, made

reference to Maseratti as the "white guy". Garcia apparently knew

the identity of the individual so referred to. The jury could

easily infer that Maseratti's involvement began before that phone

call.

On July 1, 1989, Maseratti went to Apartment 603 (Garcia's

headquarters), and in the presence of Garcia and others, he

rejected the cocaine offered to him because of its off-color, but

agreed to take all of the marijuana.6 This evidence showed that

Maseratti knew that the Garcia organization had other members and

that Maseratti assisted in purchasing drugs for resale. The

evidence is sufficient to show that Maseratti knowingly intended to

join and did join in the conspiracy to distribute marijuana.

Davis was also a repeat marijuana and cocaine customer. Davis

knew Garcia and Zamora operated the business out of apartment 603,

and Davis was seen there many times. Garcia furnished Davis with

cocaine in up to half-kilogram quantities and more than 100 pounds

of marijuana. This evidence supports the conclusion that Davis was

a knowledgeable participant in the marijuana and cocaine

conspiracies.

Filoteo and Alvarado were suppliers to the Garcia enterprise.

They admit to an "occasional deal" with Garcia, but contend that

since they did not control the organization or share in its

profits, their buy-sell conduct cannot be deemed part of the

6
Maseratti had previously placed his drug order over the
phone to Garcia, thus sustaining his conviction for use of the
telephone to facilitate drug trafficking.

13
conspiracy charged. However, even a single act can be one from

which knowledge and participation in a conspiracy can be inferred.

United States v. Michelena-Orovio, 719 F.2d 738, 751 (5th Cir.

1983)(en banc), cert. denied, 465 U.S. 1104(1984). Filoteo and

Alvarado furnished the drugs which Garcia then sold to Maseratti.

They were in the process of making another delivery of marijuana to

Garcia when they were arrested. This is adequate evidence that

Filoteo and Alvarado were willing participants in the Garcia

conspiracy.

Rocha, Ruiz and Pieratt make "mere presence" arguments. The

evidence, however, examined in its totality, shows that these

defendants were knowing participants in the Garcia scheme. Rocha

was convicted in both the conspiracy to import and to distribute

cocaine. He was involved in the plan to import cocaine from its

outset. A number of phone calls were intercepted which provided

ample proof of his knowledgeable participation. In fact, Rocha

expressed his belief to Zamora that Garcia had placed himself and

Zamora in charge of this operation. Rocha was observed coming and

going from the warehouse where the cocaine-laden truck was

concealed. He also made a number of intercepted phone calls and

hard wire transmissions from the Garcia apartment headquarters.

Ruiz was convicted of conspiracy to distribute marijuana and

two uses of the telephone to facilitate marijuana distribution. On

June 29, 1989, Ruiz called Garcia looking for "work". DEA officers

testified that "work" is a code word often used to mean marijuana.

During the call, Ruiz provided Garcia with directions to his place

14
of business. On July 5, Ruiz telephoned Zamora and advised Zamora

that he would be coming to the apartment to deliver some "invoices"

that he had already "cleaned." Based on the officer's testimony,

the jury could conclude that Ruiz was thus planning to make a

payment for drugs. Additionally, Ruiz, Zamora, and another

associate met at a Whataburger restaurant from which Zamora's car

was driven to Ruiz's place of business. This conduct is consistent

with the delivery of drugs.

Pieratt was convicted of the marijuana conspiracy, possession

of marijuana with intent to distribute, and distribution of

marijuana. He was apparently Arnold Hatton's link to the Garcia

enterprise. He was observed at the Garcia apartment several weeks

before Hatton's car was loaded with marijuana. Pieratt was then

involved in the car switch which resulted in Hatton's car being

loaded with 201 pounds of marijuana. He drove the loaded car to

the hotel where Hatton was staying. A surveillance officer

testified that he observed Pieratt open the trunk and remove

something before he delivered the car to Hatton. Hatton was later

stopped by officers with the car trunk full of marijuana. This is

adequate evidence that Pieratt was involved in the marijuana

conspiracy.

Finally, the Garzas also argue that they were mere occasional

sellers of marijuana to the Garcia enterprise. Marijuana wrappers

which had contained significant amounts of marijuana were

discovered in the Garzas' garbage. This discovery was made shortly

after Roque Garcia and his brother left a meeting at the Garza

15
home. Additionally, a ledger detailing a large quantity of

marijuana sales was discovered in the Garza's house. It showed

sales to Roque Garcia. Although other persons may have also lived

in the house, the government proved that the Garzas were the lawful

occupants. The jury was entitled to believe that the Garzas were

the sellers of marijuana to the Garcia enterprise and that their

involvement went beyond a single incident.

In conclusion, after a careful review of the record, we

conclude that, viewed in the light most favorable to the verdict,

the evidence was sufficient as to all Appellants.

V. Sentencing. Eight of the Appellants raise sentencing issues.

The issues fall into four categories: computation of accountable

drugs, minor or minimal participant, acceptance of responsibility

and use of a firearm.

The standard of review is statutorily defined. The sentence

must be upheld unless the appellant demonstrates that it was

imposed in violation of the law, was imposed as a result of an

incorrect application of the guidelines, or was outside the range

of the applicable guidelines and was unreasonable. 18 U.S.C. §

3742(e); United States v. Ebertowski, 896 F.2d 906, 907 (5th Cir.

1990). This Court must give "due regard to the opportunity of the

district court to judge the credibility of witnesses" by accepting

its findings of fact unless they are clearly erroneous. 18 U.S.C.

§ 3742(d). Beyond even the clearly erroneous standard, this Court

must give due deference to the district court's application of the

16
guidelines to the facts. Id.; see United States v. Woolford, 896

F.2d 99, 103-04 (5th Cir. 1990).

1. Computation of Accountable Drugs. Filoteo, Alvarado,

Davis, Maseratti and the Garzas question the propriety of holding

them accountable for more than the amount of drugs in the specific

incidents in which they were personally involved. In Filoteo and

Alvarado's cases, at the sentencing hearing the court held them

responsible for all 914 kilograms of marijuana proved to be handled

by the Garcia enterprise, but they accepted responsibility only for

the 35 kilograms seized at the time of their arrest and 50

kilograms discussed in a telephone conversation with Garcia. Davis

admitted responsibility only for the cocaine directly attributable

to him and Buford Lachney, and he strongly opposed being held

accountable for the 144 kilograms of cocaine seized from a

warehouse on July 18, 1989. The court held Davis responsible for

all the cocaine and marijuana involved in the conspiracy.

Likewise, Maseratti and the Garzas challenged the presentence

report's recommendation that they be held accountable for 914

kilograms of marijuana. The court rejected their arguments.

The amount of drugs for which an individual shall be held

accountable at sentencing represents a factual finding, and will be

upheld unless clearly erroneous. United States v. Ponce, 917 F.2d

841, 842 (5th Cir. 1990), cert. denied, --- U.S. ---, 111 S.Ct.

1398 (1991). A factual finding is not clearly erroneous as long as

it is plausible in light of the record of the case as a whole.

17
United States v. Shipley, 963 F.2d 56, 58 (5th Cir.), cert. denied,

--- U.S. ---, 113 S.Ct. 348 (1992).

The Sentencing Guidelines allow the sentencing court to hold

a defendant accountable for all relevant conduct. United States v.

Smallwood, 920 F.2d 1231, 1237 (5th Cir. 1991). A co-conspirator

is accountable for his own conduct and the foreseeable acts of his

co-conspirators committed in furtherance of the conspiracy.

U.S.S.G. § 1B1.3(a)(1)(B); United States v. Puma, 937 F.2d 151, 159

(5th Cir. 1991), cert. denied, --- U.S. ---, 112 S.Ct. 1165 (1992).

Since the Appellants committed the offenses and were

sentenced, the Sentencing Commission has amended U.S.S.G. § 1B1.3

and its commentaries and application notes to clarify what is

relevant conduct. Amendment 439 to the guidelines effective

November 1, 1992, states "[t]his amendment clarifies and more fully

illustrates the operation of this guideline."

The revised guidelines are not applicable to the Appellants.

However, if an amendment was intended only to clarify Section

1B1.3's application and, therefore, implicitly was not intended to

make any substantive changes to it or its commentary, we may

consider the amended language of Application note 2 even though it

was not in effect at the time of the commission of the offense.

United States v. Evbuomwan, 992 F.2d 70, 74 n.1 (5th Cir. 1993);

United States v. Nissen, 928 F.2d 690, 694-95 (5th Cir. 1991).

Application note 2 makes clear that criminal liability and

relevant conduct are two different concepts, regardless of whether

the indictment includes a conspiracy allegation. A defendant is

18
accountable for the conduct of others that was both: (1) in

furtherance of the jointly undertaken criminal activity; and (2)

reasonably foreseeable in connection with that criminal activity.

The clarifying amendments provide a number of helpful

illustrations. Illustration (c)(7) is particularly pertinent:

Defendant R recruits Defendant S to distribute 500 grams
of cocaine. Defendant S knows that Defendant R is the
prime figure in a conspiracy involved in importing much
larger quantities of cocaine. As long as Defendant S's
agreement and conduct is limited to the distribution of
the 500 grams, Defendant S is accountable only for that
500 gram amount (under subsection (a)(1)(A)), rather than
the much larger quantity imported by Defendant R.

The illustrations indicate that it was not necessarily the intent

of the Sentencing Commission to hold persons who buy or sell drugs

to a major distributor responsible for all the drugs bought or sold

by that distributor. The district court did not have the benefit

of these clarifications at the time of sentencing. We believe that

those defendants who may be involved in less than the entire

conspiracy should have their sentences reexamined in light of these

guideline clarifications. Therefore, the sentences of Appellants

Maseratti, Davis, Alvarado, Filoteo, Severo Garza, and Deborah

Garza are vacated and their cases are remanded for resentencing in

light of the clarification of Guideline 1B1.3.

2. Minor or Minimal Participants. Davis, Maseratti, and

Pieratt contend that they should have been given credit for either

two or four level reductions as minor or minimal participants in

the criminal activity. Guideline section 3B1.2 provides a two- to

four-level reduction in the base offense level for those offenders

19
found to be relatively less culpable than others involved in the

same scheme or conspiracy. See United States v. Buenrostro, 868

F.2d 135, 137 (5th Cir. 1989), cert. denied, 495 U.S. 928. The

guidelines define "minimal participant" as one who demonstrates a

"lack of knowledge or understanding of the scope and structure of

the enterprise." U.S.S.G. § 3B1.2, comment. (n.1). A "minor

participant" is similarly defined as one who is "less culpable than

most other participants, but whose role could not be described as

minimal." Id. (n.3). Because most offenses are committed by

participants of roughly equal culpability, our Court has noted that

"it is intended that [the adjustment] will be used infrequently."

United States v. Nevarez-Arreola, 885 F.2d 243, 245 (5th Cir.

1989). We are unpersuaded by the Appellants' suggestion that

either classification applies to them.

3. Acceptance of Responsibility. Davis and Pieratt challenge

the court's refusal to grant them a credit for acceptance of

responsibility, pursuant to U.S.S.G. § 3E1.1. The court found that

Davis "has not exhibited an affirmative or timely acceptance of

responsibility for his criminal conduct." Davis claims that this

ruling is clearly erroneous because he furnished a written

statement of accountability. The probation officer in Pieratt's

case recommended against the credit because Pieratt did not make a

statement relative to his participation in the offense. Pieratt

argues that this was unnecessary because those details were

thoroughly discussed at trial.

20
 The sentencing judge's factual determinations on acceptance of

responsibility are entitled to even greater deference than that

accorded under a clearly erroneous standard. United States v.

Kinder, 946 F.2d 362, 367 (5th Cir. 1991), cert. denied, --- U.S.

---, 112 S.Ct. 1677 (1992). After a careful review of the record,

we find Appellants' arguments unconvincing.

As to the remaining issues raised by the Appellants, our

detailed and painstaking review of the enormous record and briefs

in this case convinces us that the district court committed no

reversible error.

For the foregoing reasons, the judgments of conviction are

AFFIRMED and the sentences of Maseratti, Davis, Alvarado, Filoteo,

Severo Garza, Jr., and Deborah Garza are VACATED and their cases

REMANDED for resentencing.

21