United States Court of AppealsFifth Circuit

F I L E DJune 15, 2006

Charles R. Fulbruge IIIClerk

In the

United States Court of Appealsfor the Fifth Circuit

_______________

m 04-50499_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

CESAR ARRNOLDO VALDEZ,HECTOR RAUL VALDEZ,

Defendants-Appellants.

_________________________

Appeals from the United States District Courtfor the Western District of Texas_________________________

Before SMITH, GARZA, and OWEN, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Hector and Cesar Valdez appeal their con-victions and sentences on various drug charges.We affirm the convictions and Hector’s sen-tence. We vacate Cesar’s sentence and remandfor re-sentencing.

I.This case involves a drug conspiracy to

transport large quantities of marijuana and, onat least two occasions, cocaine from Del Rio,Texas, to Dallas, Texas. Five defendants werecharged in an eight-count indictment for theiralleged involvement in the operation, but onlythe appellants, Hector and Cesar Valdez, wereconvicted following a jury trial.1

1 One co-defendant pleaded guilty and the other(continued...)

USA v. Valdez Doc. 920060615

Dockets.Justia.com

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Hector and Cesar were found guilty of con-spiracy to possess with intent to distribute1,000 kilograms or more of marihuana, in vio-lation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and846 (Count One). Hector was also found guiltyof aiding and abetting possession with intent todistribute more than 50 kilograms of marihuanaon or about June 11 to June 13, 2001, in viola-tion of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C),and 18 U.S.C. § 2 (Count Two); he was foundnot guilty of the two cocaine-related chargesagainst him (Counts Seven and Eight). Cesarwas found guilty of aiding and abetting posses-sion with intent to distribute more than 100kilograms of marihuana on or about October16, 2001 (Count Four), and on or about De-cember 2, 2001 (Count Five), in violation of 21U.S.C. §§ 841(a)(1) and (b)(1)(B), and 18U.S.C. § 2.

The court sentenced Hector to 360 monthsof imprisonment on Count One (the conspir-acy/marihuana charge) and 240 months onCount Two (the aiding and abetting charge),the sentences to run concurrently; 5 years ofsupervised release; and a $25,000 fine. Cesarwas sentenced to 360 months on each ofCounts One (conspiracy), Four (aiding andabetting/October 16, 2001) and Five (aidingand abetting/December 2, 2001), the sentencesto run concurrently; 5 years of supervised re-lease; and a $25,000 fine.

Hector and Cesar appeal, alleging that theevidence is insufficient to support their convic-tions and that the district court abused its dis-cretion by denying their motions for severance,made clearly erroneous factual findings withregard to their relevant conduct and allegedleadership roles, and committed reversible

Booker error.

II.Where, as here, the defendants moved for

judgment of acquittal at the close of the evi-dence, we decide whether the evidence is suf-ficient by “viewing the evidence and the infer-ences that may be drawn from it in the lightmost favorable to the verdict” and determiningwhether “a rational jury could have found theessential elements of the offenses beyond areasonable doubt.” United States v. Pruneda-Gonzalez, 953 F.2d 190, 193 (5th Cir. 1992).The jury has the sole responsibility for weigh-ing the evidence and making credibility deter-minations. United States v. Jaramillo, 42 F.3d920, 923 (5th Cir. 1995). “It is not necessarythat the evidence exclude every rational hy-pothesis of innocence or be whollyinconsistentwith every conclusion except guilt, provided areasonable trier of fact could find the evidenceestablishes guilt beyond a reasonable doubt.”Pruneda-Gonzalez, 953 F.2d at 193. “How-ever, we must reverse a conviction if theevidence construed in favor of the verdictgives equal or nearly equal circumstantial sup-port to a theory of guilt and a theory of inno-cence of the crime charged.”2

A.To prove conspiracy to possess and dis-

tribute a controlled substance, the governmentmust show beyond a reasonable doubt (1) theexistence of an agreement between two ormore persons to violate narcotics laws; (2) thedefendant’s knowledge of the agreement; and

1(...continued)two were acquitted.

2 Jaramillo, 42 F.3d at 923; see also UnitedStates v. Gonzales, 436 F.3d 560, 571 (5th Cir.),cert. denied, 126 S. Ct. 2045 (2006), and cert.denied, 2006 U.S. LEXIS 4372 (U.S. June 5,2006) (No. 05-1324), and cert. denied, 2006 U.S.LEXIS 4373 (U.S. June 5, 2006) (No. 05-10509).

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(3) his voluntary participation in the conspir-acy.3

Mere presence at a crime scene or associa-tion with conspirators is not enough to proveparticipation in a conspiracy, but the “agree-ment, a defendant’s guilty knowledge and a de-fendant’s participation in the conspiracyallmaybe inferred from the development and colloca-tion of circumstances.”4 “[A] defendant may beconvicted on the uncorroborated testimony ofa coconspirator who has accepted a plea bar-gain unless the coconspirator’s testimony isincredible.” United States v. Villegas-Rodri-guez, 171 F.3d 224, 228 (5th Cir. 1999).“Testimony is incredible as a matter of law onlyif it relates to facts that the witness could notpossibly have observed or to events whichcould not have occurred under the laws of na-ture.” United States v. Bermea, 30 F.3d 1539,1552 (5th Cir. 1994).

There is ample evidence to support the con-spiracy charge against Hector. Although muchof the evidence consisted of testimony by threecoconspirators—Alfred Garcia, Pedro Ramirez,and Javier Cardenas—who accepted plea bar-gains and hoped for sentence reductions in ex-change for their testimony, their testimony isnot incredible, and each coconspirator’s testi-mony tends to corroborate the testimony of theother coconspirators. Moreover, the jurorswere adequately informed during direct andcross-examination about the coconspirators’

motivation for testifying, and the jury was freeto believe or disbelieve their testimony.

Garcia testified that Hector and Ramirezstarted transporting marihuana out of Garcia’shouse in January 2001. Hector and Ramirezwould pick up the marihuana from a supplierin Mexico, load it into Hector’s truck, andtake it back to Garcia’s house to break up andrepackage in duffle bags. Hector was occa-sionally involved in breaking down the mari-huana and would wear socks on his hands tokeep from getting fingerprints on the drugs.Hector’s truck would be used to transport thedrugs to Dallas, where a man named Rudywould buy them. Hector and Ramirez wouldpay him when he transported the drugs fromDel Rio to Dallas.

Garcia’s testimony was corroborated byRamirez, who testified about the same agree-ment, which involved picking up the mari-huana fromthe border, repackaging it into duf-fle bags at Garcia’s, and transporting it toDallas in Hector’s truck. According to Ramir-ez, the money for each load would sometimesbe split three ways between Ramirez, Hector,and Garcia, although sometimes Garcia wouldget paid less. Hector was paid regardless ofwhether he actuallytransported the marihuana.Ramirez also stated that Hector came up withthe idea of leaving at 5:30 a.m. to avoid theBorder Patrol.

Cardenas’s testimony further corroboratesthe existence of the conspiracy and Hector’sparticipation therein. Cardenas testified thatRamirez recruited him to drive a load to Dal-las. Ramirez corroborated this testimony.Cardenas further testified that he picked up themarihuana by the river and unloaded it at Gar-cia’s house; Garcia corroborated this testimo-ny. Ramirez drove him to Hector’s house to

3 United States v. Pompa, 434 F.3d 800, 806(5th Cir. 2005); United States v. Sacerio, 952 F.2d860, 863 (5th Cir. 1992).

4 United States v. Lentz, 823 F.2d 867, 868 (5thCir. 1987); see also United States v. Norman, 415F.3d 466, 471 (5th Cir. 2005), cert. denied, 126 S.Ct. 1087 (2006).

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pick up Hector’s truck with which to transportthe drugs. According to Cardenas, once he gotto Hector’s place, Hector wanted him to driveRamirez and Hector around the block so theycould talk without the next-door neighbor, asheriff, overhearing.

Cardenas was arrested on June 13, 2001, be-fore reaching Austin, and he was driving Hec-tor’s truck with over 200 pounds of marihuanaand over 130 pounds of cocaine. The arrestingofficer testified about the arrest and stated thatan insurance card, bearing Hector’s name, wasfound in the truck.5 A rational jury could havefound Hector guiltyof conspiracybeyond a rea-sonable doubt on the basis of all the evidence.

B.As we have explained, the evidence was suf-

ficient to support the finding that a conspiracyto possess with intent to distribute marihuanaexisted between Hector, Ramirez, and Garciastarting in January 2001. There is similarlyample evidence supporting the finding that

Cesar had knowledge of the conspiracy andvoluntarilyparticipated in it sometime betweenJanuary 2001 and October 2002.

Garcia and Ramirez testified that, afterCardenas was busted with marihuana and co-caine in Hector’s truck, Cesar took over Hec-tor’s role in the operation. They testified thatCesar would recruit drivers to go pick up themarihuana at a rest area outside of Comstock(which is near Del Rio) and that the marihuanawould be loaded onto Cesar’s blue ChevySilverado (although Cesar would not alwaysaccompany the drivers). According to Ramir-ez and Garcia, the marihuana was often takenfrom Comstock to Cesar’s trailer in Austin be-fore it was repacked and moved north toDallas, although sometimes the loads weretaken straight to Dallas.

Garcia testified that Cesar would be paidthe same amount that his brother, Hector, hadbeen paid during his involvement. Ramirezstated that, after Cesar took over Hector’srole, the same person in Mexico was supplyingthe marihuana, and the same person in Dallaswas buying the loads and paying the sameamount as before.

The testimony of Antonio Reyes also cor-roborated Garcia’s and Ramirez’s testimonyregarding Cesar’s knowledge of and participa-tion in the conspiracy. He testified that he sawlarge quantities of marihuana at Cesar’s trailerhome and that Cesar kept a large amount ofmoney under his mattress. He also stated thatCesar had recruited him.6

5 Testimony by Hector’s mistress, Julie Morales,corroborates the existence of the conspiracy and hisinvolvement in it. Julie testified that she met Hectorat the Cora Street home (Garcia’s house), where shesaw Hector and Ramirez unload what looked likebales of hay. When Julie asked Hector what thebales were, he said “skunk weed.” Julie was fright-ened by the large quantity of the drugs, and shecalled a friend to pick her up. Hector told her not totell anyone what she had seen, and he “joked” thathe would burn her in her car and have her followedif she did. After the incident, Julie said Hector “wasalways paranoid about who [she] was talking to”and “would pat [her] down to make sure [she]wasn’t wired.” Finally, she testified that Hector toldher he had made $275,000 from the drug businessand that he had it stashed away somewhere. (Thismoney was not recovered in a search of Hector’sresidence.)

6 Reyes further testified that, on one occasion,Cesar offered him $8,000 to drive to Comstock topick up marihuana and that Cesar accompaniedhim on the trip. Reyes testified that he and Garcia

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Reyes testified that he drove to Del Rio ontwo other occasions for Cesar; on the first, themarihuana was never delivered, and on the sec-ond, he was arrested. On December 2, 2001,Reyes, according to his testimony and that ofthe arresting officer, was arrested transporting256 pounds of marihuana; he was driving aChevrolet Blazer that he claimed was providedby Cesar.

Macabee Memmenfurther corroborated Ce-sar’s involvement in the conspiracy. He testi-fied that Cesar would occasionally store mari-huana for brief periods at his apartment. Cesarasked him to pick up a load of marihuana inComstock, but he declined. Memmen statedthat he and his fiance accompanied Cesar toDallas one time, and they followed Jose Leal,who was driving a load of marihuana in Cesar’sChevrolet Silverado. Based on all the tes-timony, a rational jury could have concludedthat Cesar had knowledge of and voluntarilyparticipated in the conspiracy.

C.Defendants complain that the evidence does

not support the jury’s finding, in response to aspecial interrogatory, that the amount of mari-huana involved in the conspiracy was 1000 kil-ograms or more (approximately 2200 pounds).This claim is without merit. According to Gar-cia, Hector was actively involved in the drugtransportation operation from January to June

2001, during which time 10 loads were trans-ported, with each load weighing between 500and 1000 pounds. Garcia testified that he oc-casionally weighed the loads.

Ramirez similarly testified that 10 loadswere transported between January and June of2001, but he estimated that each load weighedbetween 400 and 500 pounds. His estimatewas based on the amount of money paid foreach load, which was between $15,000 and$20,000. At $50 per pound, this would actu-ally yield 300 to 400 pounds per load. Finally,over 200 pounds of marihuana was seizedfrom Hector’s truck in June 2001, in additionto approximately 130 pounds of cocaine.

A rational jury could have concluded thatbased on the quantity of drugs seized, at least330 pounds of marihuana was transportedeach time, because when cocaine was nottransported, more marihana was transported inits place. Thus, even a conservative estimatebased on the testimony and actual seizurewould yield at least 3300 pounds of marihuanaduring Hector’s involvement in the conspiracy,which is in excess of 1000 kilograms.

Similarly, Ramirez testified that 10 loads ofmarijuana were transported after the June 13bust, when Cesar took over Hector’s role andwas plainly participating in the conspiracy.Garcia testified that, after the June bust, eachload was closer to 100 to 200 kilograms.Moreover, the actual loads seized in Octoberand December 2001 were just over 100 kilo-grams, yielding a conservative estimate of1000 kilograms. A rational jury could haveconcluded that at least 1000 kilograms wastransported during Cesar’s involvement in theconspiracy.

6(...continued)picked up the marihuana and that Garcia and Cesarwere supposed to follow Reyes back to Austin. Ac-cording to Reyes, however, Cesar had planned tosteal that particular load and instructed Antonio to“lose” Garcia and Cesar. Reyes testified that Cesarfurther instructed him to take the load to an apart-ment in Austin, where a guy named MacabeeMemmen lived; Macabeecorroborated this account.

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D.Defendants complain that the evidence ob-

viously shows that neither Hector nor Cesarwas involved in the conspiracy throughout thetime alleged in the indictment, or on or aboutJanuary 1, 2001 until on or about October 14,2002. “[A]n allegation as to the time of the of-fense is not an essential element of the offensecharged in the indictment,” and, within reason-able limits, the offense need only occur beforethe return of the indictment and within the stat-ute of limitations. Russell v. United States, 429F.2d 237, 238 (5th Cir. 1970) (per curiam).Moreover, the “prosecution, as a consequenceof the use of the ‘on or about’ designation, wasnot required to prove the exact date; it sufficesif a date reasonably near is established.” UnitedStates v. Grapp, 653 F.2d 189, 195 (5th Cir.Unit A Aug. 1981). Therefore, that defendantsmay not have been involved in the conspiracythroughout its existence does not undermine thejury’s decision that during the time that each ofthem was plainly involved, 1000 kilograms ormore of marihuana was transported.

III.Defendants challenge the sufficiency of the

evidence as to their aiding and abetting convic-tions. “To prove aiding and abetting of a crim-inal venture, the government must show thatthe defendant ‘(1) associated with the criminalenterprise; (2) participated in the venture; [and](3) sought by his action to make the venturesucceed.’” Norman, 415 F.3d at 471 (quotingUnited States v. Tenorio, 360 F.3d 491, 495(5th Cir.), cert. denied, 542 U.S. 930, and cert.denied, 542 U.S. 930 (2004)).7

A.There was ample evidence supporting a

guilty verdict on the count charging Hector’saiding and abetting Javier Cardenas’ posses-sion with intent to distribute (Count Two).Javier, driving Hector’s truck, was arrested onJune 13, 2001, with 210.5 pounds of marihua-na. The evidence recounted above could berationally construed as showing that Hectorvoluntarily lent his truck to Javier for the pur-pose that Javier transport the marihuana andthat Hector thus voluntarily associated with,participated in, and “sought by his action” oflending the truck to make the distribution ven-ture succeed.

B.The evidence was sufficient to support a

guilty verdict on the count charging Cesar’saiding and abetting Garcia’s possession withintent to distribute (Count Four). On October16, 2001, Garcia was arrested after the policediscovered 236 pounds of marihuana at hishouse on Cora Lane. The jury could have ra-tionally construed the following testimony asdemonstrating that Cesar aided and abettedGarcia’s possession with intent to distribute.

First, Reyes’s testimony about the load heran for Cesar in December 2001 supports a ra-tional inference that Cesar was still involved inthe conspiracy in October 2001, at the time ofthe seizure. Moreover, Garcia testified that,although his house was not generally utilizedfor the transportation scheme following theJune 13 bust, it was being used on this partic-ular occasion. He explained that the Com-stock location that theyhad been using becamesuspicious after Reyes “lost” a load he had7 To convict of possession of marihuana with

intent to distribute, the government must prove(1) possession, (2) knowledge, and (3) intent to dis-tribute. United States v. Cartwright, 6 F.3d 294,299 (5th Cir. 1993). Intent to distribute may be in-

(continued...)

7(...continued)ferred from the large quantity of drugs involved.Id.

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picked up there (the load that Cesar actuallystole) and that they had to go back to using histrailer. Garcia’s testimony supports a rationalinference that the load seized from his house onOctober 16, 2001, was part of the conspiracy inwhich Cesar took part.

Therefore, the jury could have rationally in-ferred that the load seized from Garcia’s housewas part of the criminal venture of which Cesarwas a participant and that Cesar sought tomake the venture succeed by aiding with thedistribution of the marihuana: by lending histruck for the marijuana to be transported, byrecruiting drivers for the distribution, and/or byallowing the marihuana to be stored at hishouse in Austin. That is, the jury could haverationally inferred that the load found at Gar-cia’s house was meant to be transported (fromthe quantity of the drugs seized and the circum-stances of the conspiracy) and that Cesar facili-tated the transportation/distribution part of theventure. As we have noted repeatedly, the typeof evidence that supports a conspiracy convic-tion typically supports an aiding and abettingconviction. United States v. Casilla, 20 F.3d600, 603 (5th Cir. 1994).

C.Count Five involved the arrest of Antonio

Reyes on December 2, 2001; the evidence pre-viously recounted emphaticallysupports a con-viction on this aiding and abetting count. Reyestestified that he was picking up a load forCesar, in a vehicle Cesar had provided, when hewas arrested with 256 pounds of marihuana.Reyes’s testimony supports a rational inferencethat this load was a part of the same criminalventure and that Cesar sought to make the ven-ture succeed by providing a vehicle with whichto transport the marihuana.

IV.Defendants’ argument that the district court

erred in denying the motion for severance iswithout merit. We review a denial of sever-ance for abuse of discretion. United States v.Ramirezza, 78 F.3d 179, 184 (5th Cir. 1996).Rule 8(b) of the Federal Rules of CriminalProcedure allows for joinder of defendants ina single indictment “if they are alleged to haveparticipated . . . in the same series of acts ortransactions constituting an offense or offens-es.” As a general rule, “persons indicted to-gether should be tried together, especially inconspiracy cases.” United States v. Pofahl,990 F.2d 1456, 1483 (5th Cir. 1993). FederalRule of Criminal Procedure 14 allows, how-ever, severance of properly joined defendantson a showing of prejudice to a defendant orthe government.

To show that the denial of severance wasan abuse of discretion, the defendant must de-monstrate that “(1) the joint trial prejudicedhim to such an extent that the district courtcould not provide adequate protection; and(2) the prejudice outweighed the government’sinterest ineconomyof judicial administration.”United States v. Richards, 204 F.3d 177, 193(5th Cir. 2000) (internal quotations and cita-tions omitted).

Neither Hector nor Cesar has shown preju-dice. They argue that the trial was complexand that the acquittal of two of the codefen-dants, based on largely the same evidence pre-sented against Hector and Cesar, shows thatthe jury was confused by the evidence.8 First,

8 Hector’s motion was not timely under FederalRule of Criminal Procedure 12 because he did notmake it pre-trial. The district court still consideredthe motion, though, along with Cesar’s timely

(continued...)

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a “general description of the complexity of atrial is not sufficient to show the ‘specific andcompelling prejudice’ necessary for reversal ofthe denial of a motion to sever.” Id. More-over, a review of the trial transcripts revealsthat the bulk of the testimony related to Hec-tor’s and Cesar’s participation and leadershiproles in the conspiracy, so it is unlikely that thejury could have been confused about the twobrothers’ identities or actions. If anything, thefact that the jury acquitted two of the codefen-dants and found Hector not guilty on the twococaine charges shows that it was able to parsethe evidence and consider it separately for eachdefendant and each count.9

Finally, the district court gave the jury a cau-tionary instruction to consider the evidenceagainst each defendant separately.10 Defen-dants’ severance argument is completely with-out merit.

V.Although the appellants frame their third is-

sue as alleged Booker error,11 they seem to becomplaining, at least in part, that the district

court’s leadership adjustment and relevantconduct determination—specifically the esti-mation of the amount of marihuana involvedand the inclusion of cocaine—was unsupport-ed by the evidence.12 This court reviews a dis-trict court’s factual findings for clear error.13

We “will deem the district court’s factual find-ings clearly erroneous only if, based on theentire evidence, [the court is] left with thedefinite and firm conviction that a mistake hasbeen committed.” Cabrera, 288 F.3d at 168(internal citations and quotations omitted).

“A factual finding is not clearly erroneousif it is plausible in light of the record read as awhole.” Villanueva, 408 F.3d at 203 n.9. Adistrict court “mayadopt the facts contained ina [presentence report (“PSR”)] without furtherinquiry if those facts have an adequate eviden-tiary basis with sufficient indicia of reliabilityand the defendant does not present rebuttal ev-idence or otherwise demonstrate that the in-formation in the PSR is unreliable.” Cabrera,288 F.3d at 173–74. “The defendant bears theburden of showing that the information in thePSR relied on by the district court is materiallyuntrue.” United States v. Valencia, 44 F.3d

8(...continued)motion.

9 United States v. Ellender, 947 F.2d 748, 755(5th Cir. 1991) (“[A]cquittals as to some defendantson some counts support an inference that the jurysorted through the evidence and considered eachdefendant and each count separately.”).

10 United States v. Hogan, 763 F.2d 697, 705(5th Cir. 1985) (“Appropriate cautionary instruc-tions can decrease the possibility that the jury willimproperly transfer proof of guilt from one defen-dant to another.”).

11 See United States v. Booker, 543 U.S. 220(2005).

12 See Appellants’ Brief at 46–48 (“Hector andCesar submit that there was not even a preponder-ance of the evidence to add the cocaine amounts totheir sentences since the jury acquitted Hector onall counts regarding cocaine, and Cesar was nevercharged with any cocaine . . . . Moreover, therewas not ever a preponderance of the evidence thatHector or Cesar Valdez were leaders in theconspir-acy.”).

13 United States v. Cabrera, 288 F.3d 163, 168(5th Cir. 2002); see also United States v. Villanue-va, 408 F.3d 193, 203 n.9 (5th Cir.) (“Post-Book-er, we continue to apply the same standard ofreview to claims of erroneous fact-finding . . . .”),cert. denied, 126 S. Ct. 268 (2005).

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269, 274 (5th Cir. 1995).

A.Hector and Cesar argue that the evidence

does not support the four-level adjustment fortheir alleged leadership roles in the organiza-tion. Section 3B1.1(a) of the United StatesSentencing Guidelines authorizes this adjust-ment if the “defendant was an organizer orleader of a criminal activity that involved five ormore participants or was otherwise extensive.”In making the leadership determination, thecourt should consider such factors as the“exercise of decision making authority, thenature of participation in the commission of theoffense, the recruitment of accomplices, theclaimed right to a larger share of the fruits ofthe crime, the degree of participation in plan-ning or organizing the offense, the nature andscope of the illegal activity, and the degree ofcontrol and authority exercised over others.”U.S.S.G. § 3B1.1 cmt. n.4 (2003). “The dis-trict court may find that a defendant exerciseda leader/organizer role by inference from theavailable facts.” Cabrera, 288 F.3d at 174.

The district court, after reviewing the trialtranscripts, adopted the factual findings in thePSR, which indicated that Hector received agreater amount of the profits, made technicaldecisions about concealing the drugs, andplanned the route to be taken by the drivers.Although Hector objected at the sentencinghearing that the trial evidence supports, atmost, a three-level adjustment for his role as amanager, Ramirez’s and Garcia’s testimonydis-cussed above provides an adequate evidentiarybasis for the PSR’s findings.14

Based on this evidence, the district courtcould have inferred that Hector exercised de-cision-making authorityand participated in or-ganizing the offense to such a degree that hewas a leader rather than a manager. The factthat Ramirez was also probably a leader (be-cause he also received a larger share of theprofits, he recruited Hector, and he dealt withthe Mexican suppliers) does not undermine thefinding that Hector was a leader: A conspiracycan have more than one leader. Morphew v.United States, 909 F.2d 1143 (8th Cir.1990).15

B.In making the leadership determination as

to Cesar, the court adopted the factual findingsin the PSR, which stated that Cesar “made ar-rangements with the buyers in the United

14 Specifically, Ramirez testified that he, Hector,and Garcia would sometimes split the money foreach load three ways but that Garcia would get paid

(continued...)

14(...continued)less when he was just storing the marihuana at hishouse instead of transporting it to Dallas. Ramireztestified that, unlike Garcia, Hector would get paidthe same regardless of whether he accompanied thedrivers when they transported drugs to Dallas.

Moreover, Garcia testified that “we” (seeminglyincluding Hector) would conceal the drugs inHector’s truck under a board, brown paper, fences,and pipes to make it look like a farm truck, fromwhich the court could have rationally inferred thatHector was involved in the decision-making of howdrugs would be concealed in his truck. Further-more, Ramirez and Garcia testified that Hectordevised the plan for the drivers to leave at 5:30a.m. by a particular route so as to minimize thechance of being stopped by the Border Patrol.

15 See also United States v. Yeager, 331 F.3d1216 (11th Cir. 2003) (holding that offense level ofeach participant in conspiracy of two persons couldbe enhanced for a leadership role if both exercisedauthority and control over distinct portion ofcriminal activity).

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States,” “organize[d] the transportation ofdrugs to Austin,” and hired drivers. AlthoughCesar objected that, at most, he introducedsome drivers to Ramirez and Garcia, the tes-timony at trial provides an adequate evidentiarybasis for the facts alleged in the PSR.16 Basedon all the evidence, the court did not clearly errby adopting the findings in the PSR that Cesarwas a leader, so a four-level adjustment wasappropriate.

C.Defendants complain of the district court’s

inclusion of cocaine in their relevant conductdeterminations. Specifically, adopting the find-ings in the PSR, the court attributed 80 kilo-grams of cocaine to both Hector and Cesar.The guidelines assign a base offense level of 36for quantities of marihuana between 10,000 and

30,000 kilograms, id. § 2D1.1(2); with thefour-level leadership adjustment, each defen-dant had an offense level of 40, for which theguidelines authorize a sentence of 292 to 365months.17

Without the inclusion of cocaine, Hectorwas attributed with 2,370 kilograms of mari-huana, which would yield a base offense levelof 32. Id. § 2D1.1(4) (assigning an offenselevel of 32 for at least 1000 but less than 3000kilograms of marihuana). With the four-levelleadership adjustment, the offense level is 36,for which the guidelines authorize a sentenceof 188 to 235 months. Cesar, who was attrib-uted with 3509 kilograms of marihuana, wouldhave a base offense level of 34 and a totaloffense level, with the leadership adjustment,of 38, for which the guidelines authorize asentence of 235 to 293 months. Each defen-dant was sentenced to 360 months, whichwould have been well outside the guidelinerange, had the district court excluded thecocaine from the relevant conduct determina-tion.

Hector’s argument that the cocaine cannotbe included in his relevant conduct because thejury acquitted him of the cocaine charges ismeritless. “A jury’s verdict of acquittal doesnot prevent the sentencing court from consid-ering conduct underlying the acquitted charge,so long as that conduct has been proved by a

16 Ramirez and Garcia testified that, after Hectorwithdrew from the organization, Cesar took over hisbrother’s role and share of the profits and began torecruit drivers for the operation. There was alsoevidence that Cesar made arrangements to pay thedrivers he recruited. Antonio Reyes testified thatCesar recruited him to drive a few loads and offeredto pay him $8,000 for one of the loads. Memmensimilarly testified that Cesar recruited him to storeloads at his apartment on occasion and attempted torecruit him to pick up a load from Comstock; Cesarwould pay Macabee with marihuana for personaluse.

Furthermore, according to Reyes, Cesar organ-ized the theft of one load from the suppliers inMexico; Italo White testified that Cesar recruitedhim to falsify a document for this endeavor to showthat the load had been seized by police. Moreover,Cesar provided his truck for transporting loads ofmarihuana, and the loads would often be repackagedat his home in Austin before being transportednorth. Cesar would also occasionally follow thedrivers when they transported the drugs to Dallas.

17 Under the guidelines, the cocaine is convertedinto an equivalent quantity of marihuana: Onegram of cocaine is equivalent to 200 grams ofmarihuana; thus, 80 kilograms of cocaine is equiv-alent to 16,000 kilograms of marihuana. U.S.S.G.§ 2D1.1 cmt. n.10.

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preponderance of the evidence.”18 There waseasily a preponderance of the evidence tosupport the inclusion of cocaine in the relevantconduct determination for Hector. Notably,when Javier Cardenas was busted on June 13,2001 driving Hector’s vehicle, the police seized60 kilograms of cocaine along with the mari-huana. Moreover, Ramirez testified that he andHector ran a 20-kilogram load of cocainebefore the June 13 bust.

D.The inclusion of cocaine in Cesar’s relevant

conduct is more problematic. Although thegovernment’s failure to charge Cesar with a co-caine offense does not prevent the district courtfrom including cocaine in his relevant conduct,the finding must still be supported by a prepon-derance of the evidence.19

According to the evidence produced at trial,cocaine was only transported on June 13, 2001and once before that. If Cesar did not join theconspiracy until after the June 13 bust, the dis-trict court could not attribute the cocaine quan-tities to him.20 The court concluded, however,

that Cesar entered the conspiracy from its in-ception and that the cocaine could be attrib-uted to him.

The testimonywas somewhat ambiguous asto whether Cesar was involved in the conspir-acy from its inception. We do not decide thatquestion for the purpose of this issue, becauseeven if the court did not clearly err by findingthat Cesar joined the conspiracy at its incep-tion, the sentencing guidelines would allow thedistrict court to include the cocaine in Cesar’srelevant conduct only if it was a “reasonablyforeseeable act[] . . . of others in furtheranceof the jointly undertaken criminal activity.”21

Cocaine was transported twice during theconspiracy. Ramirez stated that he and Hector“did a load” of cocaine, weighing 20 kilo-grams, before the June 13 bust. Sixty kilo-grams of cocaine was seized in the bust, but itwas concealed in the bale of marihuana andwas not discovered until the crime lab cut thebale open. The remainder of the testimony re-garding the drug conspiracy describes it as amarihuana transportation scheme. Althoughthe government attempts to describe the con-spiracy as a “drug transportation” conspiracy,which would make the cocaine foreseeable,this begs the question of foreseeability, trans-forming the inquiry into the nearly identical in-quiry of whether this was a marihuana trans-

18 United States v. Cathey, 259 F.3d 365, 368(5th Cir. 2001) (quoting United States v. Watts, 519U.S. 148, 157 (1997)).

19 United States v. Partida, 385 F.3d 546, 566(5th Cir. 2004) (“Due to a standard of proof at sen-tencing lower than the proof necessary to convict attrial, the scope of a sentencing court’s fact findingis not limited to considering only the conduct ofwhich the defendant was formally charged or con-victed.”), cert. denied, 544 U.S. 911 (2005).

20 U.S.S.G. § 1B1.3 cmt. n.2 (“A defendant’srelevant conduct does not include the conduct ofmembers of a conspiracy prior to the defendantjoining the conspiracy, even if the defendant knows

(continued...)

20(...continued)of that conduct.”).

21 U.S.S.G. § 1B1.3(a)(1)(B). Although the“reasonably foreseeable” requirement does not ap-ply to conduct in which the defendant was person-ally involved or which the defendant aided andabetted, the trial testimony does not support an in-ference that Cesar was personally involved in, oraided and abetted, the two cocaine distributions atissue.

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portation conspiracy or a drug transportationconspiracy.

Arguably, these two loads of cocaine, atleast one of which was hidden inside a bale ofmarihuana, would not be reasonably foreseeableto a member of the conspiracy who, accordingto the trial testimony, dealt only with mari-huana. That is, there is no evidence that Cesarhad a “leadership” role in the conspiracy beforeJune 13, so there is no indication that he hadknowledge of everything that was transported.Given the isolated and secretive nature of thetwo cocaine transports, the cocaine could bereasonably foreseeable to Cesar only if his mereinvolvement in the conspiracy automaticallymakes the transportation of any drugs reason-ably foreseeable to him. But “the reasonableforeseeability of all drug sales does not auto-matically follow from membership in the con-spiracy.” United States v. Wilson, 116 F.3d1066, 1077 (5th Cir.), vacated in part on othergrounds sub nom. United States v. Brown, 123F.3d 213 (5th Cir. 1997) (en banc). Becausethe evidence does not support an inference thatthe cocaine was reasonably foreseeable to Ce-sar, we vacate his sentence and remand forresentencing.

E.Defendants contest the adoption of the

PSR’s findings with respect to the totalquantityof marihuana attributable to them. The mar-ihuana calculation only affects Cesar, how-ever.22 The PSR states that he was responsible

for 3509 kilograms of marihuana.23 Thisamount is unquestionably supported by theevidence, with two exceptions that reduce thequantity found by about 23 kilograms, so itwould not affect the base offense level.24

The evidence also supports the estimationfollowing the June 13, 2001, bust (i.e. eightloads at 100 kilograms). Trial testimony indi-cated that ten loads, weighing 100 to 200 kilo-grams each, were transported following thebust, and this estimate seemed to include thetwo loads actually seized in October and theone load seized in December. Because thePSR’s count would yield eleven loads (eightplus three), it appears that one load was dou-ble counted. But, the discrepancy from thedouble counting of a load (at most 111.7 kilo-grams) would not affect the base offense level,because the total marihuana would still exceed

22 Because of the amount of cocaine found inHector’s car during the June 13, 2001, bust (60kilograms), Hector will have a base offense level of36 regardless of the amount of marihuana attributedto him.

23 The PSR calculates the total based on thefollowing estimates: (1) Between January and June2001, 2275 kilograms of marihuana was stored atGarcia’s house; (2) on June13, 2001, 95 kilogramsof marihuana was seized from Javier Cardenas’struck; (3) between June 14, 2001, and December2001, eight loads of marihuana weighing 100 kilo-grams each (800 kilograms) were transported;(4) on October 4, 2001, 109 kilograms of mari-huana was seized from a vehicle containing Ramir-ez’s belongings; (5) on October 16, 2001, 107 kilo-grams of marihuana was seized from Garcia’shome; (6) on December 2, 2001, Reyes was ar-rested with 111.7 kilograms; and (7) on October14, 2002, 17.9 kilograms was seized fromMichelleDiaz and Vanessa Ruiz.

24 First, the quantity reported for the seizure onDecember 2, 2001, from Reyes’s vehicle (111.7kilograms), is lighter than the amount to which thewitnesses testified, which was closer to 116 kilo-grams. Second, the government presented no evi-dence regarding a transaction on October 2002(17.9 kilograms).

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3000 kilograms.25 Moreover, the estimateadopted by the district court as to the quantitytransported after the June bust was actuallylighter than that supported by the evidence (be-cause each load after the bust was reported toweigh as much as 200 kilograms).

With respect to the quantity of marihuanatransported from January to June 2001, thefinding that Cesar joined the conspiracy sinceits inception is not clearly erroneous.26 There

fore, the marihuana transported during thatperiod is attributable to Cesar, who also chal-lenges the reliability of the estimate for thistime frame because of the inconsistencyamongthe witnesses’ estimations, and between thoseestimations and the marihuana actuallyseized.27

Thus, the question is whether the PSR’sestimation that 2275 kilograms was transport-ed from January to June 2001 has an adequateevidentiary basis with sufficient indicia of reli-ability. United States v. Alford, 142 F.3d 825,832 (5th Cir. 1998). A “district court mayconsider ‘estimates of the quantityof drugs forsentencing purposes.’” Id. The court mayextrapolate the quantity from“any informationthat has ‘sufficient indicia of reliability tosupport its probable accuracy,’ including aprobation officer’s testimony, a policeman’sapproximation of unrecovered drugs, and evenhearsay.” Id. (quoting United States v. Huskey,137 F.3d 283, 291 (5th Cir. 1998) (citingU.S.S.G. § 6A1.3 cmt.)).

Although the witnesses’ estimations of thequantity of marihuana per load are somewhat

25 U.S.S.G. § 2D1.1(3) (assigning a base offenselevel of 34 for at least 3,000, but less than 10,000,kilograms of marihuana).

26 Garcia testified that, after the June 13 bust,“[w]e then approached Hector’s brother Cesar, andwe asked him if he wanted to start, you know, if wecould start using his truck and we would just payhim what we were paying his brother.” This testi-mony could be interpreted as suggesting that Cesarwas not previously involved in the conspiracy. Ra-mirez’s testimony is likewise uncertain as to Cesar’sinvolvement in the conspiracy before the June 13bust. Ramirez testified that, after the bust, Cesar“took over” his brother’s role. When the prosecutorasked Ramirez whether Cesar was involved in theconspiracy before June 13, Ramirez responded thatCesar “was getting his own thing, too . . . . He wasjust getting loads of marihuana, too.”

When the prosecutor asked Ramirez whether hedelivered any loads to Cesar before the June 13bust, he testified that “we dropped about 20 pounds,15 pounds” on the way to Dallas. Although thetestimony is less than pellucid, the district court,hearing the evidence firsthand, could have rationallyinterpreted this testimony to mean that Cesar wasinvolved in a more minimal role before June 13 butbecame a leader after that. Specifically, the testi-mony could mean that Cesar was receiving loads ofmarihuana on occasion from the other conspiratorsbefore the bust but did not begin recruiting drivers

(continued...)

26(...continued)and participating in the organization of the schemeuntil after the bust.

27 Ramirez testified that, between January andJune 2001, ten loads of marihuana were trans-ported, each between 400 and 500 pounds (roughly180 to 227 kilograms). Garcia testified that eachof the ten loads was between 500 and 1000 pounds(roughly 227 to 450 kilograms). The load seizedon June 13, 2001, contained a much lower quantityof marihuana—210 pounds (roughly 95 kilo-grams), but it also contained 132 pounds of co-caine (roughly 60 kilograms) concealed within themarihuana; so the total weight of the seizure was342 pounds (or 155 kilograms).

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inconsistent and are not supported by theamount of drugs seized, the information in thePSR bore a sufficient indicia of reliability forthe district court to rely on it. The PSR’s esti-mate of 2275 kilograms seems to be based onten loads of marihuana at roughly 227 kilo-grams a load (or 500 pounds), which would beconsistent with Ramirez’s and Garcia’s testi-mony (at the high end of Ramirez’s and the lowend of Garcia’s estimates).

VI.Defendants contend the district court com-

mitted reversible Booker error. They concedethat neither of them made a constitution-basedobjection at sentencing, and a review of the rec-ord further reveals that they objected solely tothe factual findings in the PSR and not to thefact that the court was making factual findings.Thus, we review for plain error. United Statesv. Mares, 402 F.3d 511, 520 (5th Cir.), cert.denied, 126 S. Ct. 43 (2005).

“An appellate court may not correct an errorthe defendant failed to raise in the district courtunless there is ‘(1) error, (2) that is plain, and(3) that affects substantial rights.’” Id. (quotingUnited States v. Cotton, 535 U.S. 625, 631(2002)). If these conditions are met, the “courtmay then exercise its discretion to notice a for-feited error but only if (4) the error seriouslyaffects the fairness, integrity, or public reputa-tion of judicial proceedings.” Id. Because thesesentences were enhanced based on judge-foundfacts that were not admitted by the defendantsor found by the jury, there is error that is plain.Id. at 521.

As in Mares, however, there is no showingthat the error affected substantial rights. De-fendants have the burden of showing that thedistrict judge, “sentencing under an advisoryscheme rather than a mandatory one, would

have reached a significantly different result,”id., and they have not met this burden. Thecourt made no affirmative statements at sen-tencing that indicate that it would havereached a significantlydifferent result under anadvisory scheme.

In fact, the court commented, after defen-dants’ pleas for mercy, that “I hear you bothasking for mercy because basically this is therest of your life in prison . . . . [N]obody hasasked mercy for those people that got hookedon the drugs that you were moving so that youcould make a living, so that you could live ina nice house and you could drive a nice car.What about those folks? Anybody want to askmercy for them?” In these circumstances, de-fendants have not met the standard set forth inMares. Although they urge us to discard Mar-es and use the plain error standard for Bookererror adopted by other circuits, this panel isbound by Mares.

The judgments of conviction areAFFIRMED. The sentence of Hector Valdezis AFFIRMED. The sentence of Cesar Valdezis VACATED and REMANDED forresentencing.