     Case: 17-10913   Document: 00514789146        Page: 1   Date Filed: 01/10/2019




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit

                                                                          FILED
                                    No. 17-10913                    January 10, 2019
                                                                     Lyle W. Cayce
UNITED STATES OF AMERICA,                                                 Clerk


             Plaintiff - Appellee

v.

DAVID PIPER, JR., also known as “D”; CARLOS CORTINAS,

             Defendants - Appellants




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


Before JOLLY, DENNIS, and HIGGINSON, Circuit Judges.
PER CURIAM:
      David Piper, Jr. and Carlos Cortinas were convicted by a jury of
conspiracy to possess with intent to distribute methamphetamine in violation
of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(B) from approximately March 2015
through January 2016. The district court sentenced Piper to 235 months of
imprisonment and five years of supervised release and Cortinas to 168 months
of imprisonment and five years of supervised release.           On appeal, Piper
challenges multiple aspects of his conviction and sentence.           Both he and
Cortinas also contend that the district court erred in instructing the jury. We
AFFIRM.
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                                 No. 17-10913

                 I. Factual and Procedural Background
      In 2015, the Drug Enforcement Administration (DEA) initiated an
investigation into the drug distribution activities of Robert Rosales in and
around the Dallas/Fort Worth area in Texas. The investigation revealed that
Rosales obtained methamphetamine from Mexico for further distribution. Jose
Albino Garza, Rosales’s friend, often assisted Rosales with his drug-trafficking
activities, including driving Rosales to conduct drug transactions. In 2013 or
2014, Rosales began distributing methamphetamine to Cortinas, his childhood
friend. Cortinas purchased methamphetamine by the pound to be distributed
to at least three individuals in Missouri, including Piper.
      In August 2015, Piper traveled to Fort Worth to purchase three pounds
of methamphetamine from Rosales through Cortinas. In September 2015,
Cortinas, Rosales, and Garza traveled to Bolivar, Missouri, to deliver three
pounds of methamphetamine to Piper. After receiving the methamphetamine,
Piper called Cortinas to complain about the quality of the drugs, and Rosales
agreed to exchange the methamphetamine and directed Garza and Chadwick
Hernandez to bring Piper another three pounds. On September 8, 2015, while
returning to Fort Worth after exchanging the methamphetamine with Piper,
Garza and Hernandez were pulled over, discovered with approximately 2.85
pounds of methamphetamine, and arrested.
      While Garza was detained, Piper obtained more methamphetamine
directly from Rosales. On three occasions, Piper traveled to Arlington, Texas,
each time obtaining three additional pounds of methamphetamine. When
Garza was released from custody, he delivered methamphetamine to Piper in
Missouri on three more occasions, again selling him three pounds of
methamphetamine each time, for a total of nine additional pounds. On another




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occasion, Piper traveled to Arlington, Texas, to meet Garza and bought three
additional pounds of methamphetamine.
      Rosales and Garza were arrested in January 2016, the same day Garza
was scheduled to deliver three more pounds of methamphetamine to Piper in
Missouri. Piper attempted to contact Rosales and Garza by text message after
their arrest. In September 2016, a federal arrest warrant issued for Piper, who
was eventually arrested in November.            Piper was shown a photograph of
Cortinas and stated that Cortinas “looked familiar,” but he did not know his
name or have a relationship with him. Cortinas was arrested on January 5,
2017. Cortinas admitted that he had known Rosales a long time and that he
knew Piper but stated that he had not spoken to Piper in over a year and did
not put Rosales in contact with Piper.
      Piper and Cortinas were originally indicted for conspiracy to possess
with intent to distribute 50 grams or more of a mixture of methamphetamine
in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). By subsequent superseding
indictment, they were charged instead with conspiracy to possess with intent
to distribute 500 grams or more of a mixture of methamphetamine in violation
of 21 U.S.C. § 846 and § 841(a)(1) and (b)(1)(A). In separate proceedings,
Rosales and Garza pleaded guilty to other related charges and agreed to
cooperate with the Government against Piper and Cortinas.
      A few days before the trial was set to begin, Piper filed applications for
writs of habeas corpus ad testificandum for two potential defense witnesses:
Spencer Glen Ely 1 and Kiriakis Castle. 2 The next day, the district court
ordered the Government to issue an Attorney Special Request (ASR) to produce


      1  Ely was a defendant in an unrelated criminal case pending in the Western District
of Texas. He was charged with sending mail threatening to injure United States District
Judge Robert Junell and President Barack Obama.
       2 Castle was a co-conspirator who purchased methamphetamine from Rosales.



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Ely and Castle. Castle indicated through counsel that he would invoke his
Fifth Amendment right against self-incrimination.                Additionally, the
Government notified the court that Ely was undergoing an examination to
determine whether he was competent to stand trial and could not be produced
until the study was complete, or unless the judge who ordered the study
communicated directly with Ely’s physician and ordered Ely released. Piper
filed an opposed motion to continue the trial until Ely was available to testify,
which the district court denied.
        Piper’s and Cortinas’s joint trial was held on March 20, 2017. Both
Garza and Rosales testified and identified Piper in court as the person that
bought methamphetamine from them in Missouri, and Rosales also identified
Cortinas. Garza testified that he sold three pounds of methamphetamine to
Piper on multiple occasions and authenticated cell phone and GPS evidence
submitted into the record connecting Piper to the drug transactions. Rosales
then testified that he met Piper through Cortinas; that Piper originally bought
methamphetamine from Cortinas but eventually cut Cortinas out and bought
directly from Rosales; that Rosales traveled to Piper’s home in Missouri with
Garza and Cortinas to deliver methamphetamine; that Rosales agreed to send
Garza to exchange three pounds of methamphetamine after Piper complained
about    its   quality;   that,   after   Garza    was   arrested,   Piper   bought
methamphetamine directly from Rosales in Arlington, Texas; that Garza
resumed selling methamphetamine to Piper after he was released from custody
four more times; and that, on the day Rosales and Garza were arrested in
January 2016, Garza was supposed to go to Missouri to sell Piper
methamphetamine.          Both Garza and Rosales testified that they hoped to
receive a lesser sentence in exchange for cooperating with the Government.
Additionally, the defense called Castle to the witness stand, but he was


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dismissed after he invoked his Fifth Amendment right against self-
incrimination.
      The jury found Piper and Cortinas guilty as to “Count One of the
Indictment.” Piper then filed an opposed motion for a new trial, which the
district court denied. At sentencing, the district court adopted the factual
findings and calculations in the presentence report (PSR). Piper’s resulting
total offense level was 38, his criminal history was I, and his Guidelines range
was calculated at 235 to 293 months. Piper was sentenced to 235 months in
prison, five years of supervised release, and a $100 special assessment.
Cortinas was sentenced to 168 months of imprisonment, five years of
supervised release, and ordered to pay a special assessment of $100. Piper and
Cortinas appealed.
                           II. Standard of Review
      We generally “review violations of the compulsory process clause de
novo.” United States v. Tuma, 738 F.3d 681, 688 (5th Cir. 2013). But when a
defendant does not raise a compulsory-process objection in the district court,
we review for plain error. See United States v. Gonzales, 436 F.3d 560, 577
(5th Cir. 2006). A district court’s denial of a continuance is reviewed for abuse
of discretion. See United States v. Mesquiti, 854 F.3d 267, 275 (5th Cir. 2017);
see also United States v. Garcia-Pagan, 804 F.3d 121, 124 (1st Cir. 2015)
(reviewing continuance ruling for abuse of discretion even when defendant
asserts a compulsory-process claim). We also review a district court’s denial of
a motion for a new trial for abuse of discretion. See Olibas v. Barclay, 838 F.3d
442, 448 (5th Cir. 2016). A district court’s factual determination regarding the
quantity of drugs used to establish a base offense level for sentencing purposes
is reviewed for clear error. See Turner, 319 F.3d at 724. Factual findings are
“not clearly erroneous if they are plausible in light of the record as a whole.”


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Id. (citation omitted). Generally, we review jury instructions, including the
verdict form, “for abuse of discretion, examining whether the court’s charge, as
a whole, is a correct statement of the law and whether it clearly instructs jurors
as to the principles of the law applicable to the factual issues confronting
them.”   See United States v. Spalding, 894 F.3d 173, 187 (5th Cir. 2018)
(citation omitted).
                                III. Discussion
                               A. Piper’s Claims
                      1. Fifth and Sixth Amendments
      Piper argues that he was deprived of due process and compulsory process
under the Fifth and Sixth Amendments when the Government failed to comply
with the district court’s order to produce Ely as a witness at trial. He asserts
that Ely was competent and willing to provide material and favorable
testimony about statements Castle made that would have contradicted
testimony from Rosales and Garza. The Government disagrees, contending
that Ely’s testimony would have been inadmissible and that its efforts to secure
Ely’s presence sufficiently comported with the Compulsory Process Clause.
      Because Piper did not raise his compulsory-process claim below, we
review for plain error. See Gonzales, 436 F.3d at 577. To prevail, Piper must
demonstrate (1) an error (2) that is “clear or obvious, rather than subject to
reasonable dispute,” and (3) that affects his substantial rights. See Puckett v.
United States, 556 U.S. 129, 135 (2009) (quoting United States v. Olano, 507
U.S. 725 (1993)). If all three prongs are satisfied, this court has discretion to
remedy the error “only if the error ‘seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.’” See id.
      The Due Process Clause “guarantees that a criminal defendant will be
treated with ‘that fundamental fairness essential to the very concept of


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justice.’” United States v. Valenzuela-Bernal, 458 U.S. 858, 872 (1982) (quoting
Lisenba v. California, 314 U.S. 219, 236 (1941)); U.S. CONST. AMEND. V. Due
process includes the right to present witnesses to establish a defense. See
Washington v. Texas, 388 U.S. 14, 19 (1967). The Compulsory Process Clause
of the Sixth Amendment ensures that “criminal defendants have the right to
the government’s assistance in compelling the attendance of favorable
witnesses at trial and the right to put before a jury evidence that might
influence the determination of guilt.” Taylor v. Illinois, 484 U.S. 400, 408
(1988) (quoting Pennsylvania v. Ritchie, 480 U.S. 39, 56 (1987)); U.S. CONST.
AMEND. VI.   To demonstrate a constitutional violation under either due process
or compulsory process based on the deprivation of witness testimony, a
defendant “must make some plausible showing of how the[] testimony would
have been both material and favorable to his defense.” United States v.
Villanueva, 408 F.3d 193, 200 (5th Cir. 2005) (quoting Valenzuela–Bernal, 458
U.S. at 867). In exercising the right to present witnesses, a defendant “must
comply with established rules of . . . evidence designed to assure both fairness
and reliability in the ascertainment of guilt and innocence.” See United States
v. John, 597 F.3d 263, 276–77 (5th Cir. 2010).
                             a. Ely’s Testimony
      Ely was a witness in an unrelated criminal case who was housed in the
same facility and overheard a conversation between Castle and Piper while all
three men were in jail. Piper asserts that Ely would have testified about the
conversation he overheard, which Ely recounted in the following written
statement that he provided to Piper before trial:
      I was in the upstairs catwalk talking to KC Kiriak Castle when
      Mr. Piper was walking by and KC said to Mr. Piper Hey we got
      something in common come in my cell I wanna show you
      something. KC gets out this paperwork and shows it to Mr. Piper.
      KC said we’re all in this conspiracy because of Garza. Mr. Piper

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     said I don’t know any of you guys and my case is still open and I
     can’t talk about it. KC said I just wanna tell you that you got
     fucked on this deal. Mr. Piper said what do you mean and KC said
     Garza and Hernandez wasn’t coming back from your house with
     that 3 pounds of meth they were coming back from another dudes
     (sic) that lives in Missouri that Rosales was buying a truck from
     and the dude was getting payments on the truck in dope. KC said
     the dude Rosales was buying this truck from is a high roller he
     goes threw (sic) several keys a week and sense (sic) Rosales has
     been in jail his brother has taken over his busseness (sic) so
     Rosales didn’t want to give him up because that’s his main buyer.
     Piper said who is this Garza guy. KC said that is Rosales right
     hand man and Garza does whatever Rosales tells him. Rosales got
     word to Garza to throw you under the bus and in exchange
     Rosales’s brother will take care of Garza’s family. Piper said how
     did they get my name and address. KC said a dude by the name
     of Cortinas got dropped at your house to met (sic) Cortinas’s
     girlfriend’s friend and she drove him back to TX. Garza had your
     address in his GPS. Cortinas said your (sic) just a casualty you got
     framed because they had to come up with someone to blame for the
     3 pounds that was found in Oklahoma. Garza and Rosales will get
     a Rule 35 after they testify against you. Piper asked why did they
     say that Garza came to my house 3 times and Rosales said I met
     them at a motel in TX and at a (sic) address in TX I’ve never been
     to TX before. KC said they have to make you look like a bigger
     player in this. Piper said how do you know all of this. KC said
     because when Garza was in here I confronted him about it, he
     denied setting me and the twins up but said fuck Hernandez he
     was the stupid motherfucker driving when we got pulled over and
     Rosales didn’t really want to include Cortinas but it was the only
     way to link us to Piper. I’ve been in trouble a long time and I’ve
     seen so many people get railroaded in these bogus conspiracys (sic)
     people get 30-40 years for not pleading out and it’s wrong. I don’t
     know Mr. Piper but I am willing to testify as to what I heard
     because it isn’t right that Rosales and Garza can get there (sic)
     sentence cut in half while Piper takes the fall.
                                    Thank you
                                    Spencer Ely [prisoner no.] 85716380
Piper argues that this testimony would have contradicted Rosales’s and
Garza’s testimony by potentially implicating John Henry Turner, the

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individual Castle discussed who sold Rosales a truck, as Rosales’s main buyer
in Missouri. 3 The Government argues that Ely’s testimony was inadmissible
hearsay.
                       b. Admissibility of Ely’s testimony
       Hearsay is an out-of-court statement offered to prove the truth of the
matter asserted. See United States v. Reed, 908 F.3d 102, 119 (5th Cir. 2018)
(citing FED. R. EVID. 801(c)). Hearsay is not admissible unless a statute or rule
provides otherwise. See United States v. Demmitt, 706 F.3d 665, 671 (5th Cir.
2013) (citing FED. R. EVID. 802). Piper argues that Castle’s statements are
admissible as statements against penal interest under Rule 804(b)(3). 4
       The rule against hearsay does not render a declarant’s statement against
interest inadmissible.       FED. R. EVID. 804(b)(3). Rule 804(b)(3) requires that
“the declarant be unavailable, the statement must subject the declarant to
criminal liability such that a reasonable person would not have made the
statement unless he believed it to be true, and the statement must be
corroborated by circumstances clearly indicating trustworthiness.”                   United
States v. Bell, 367 F.3d 452, 466 (5th Cir. 2004) (citing United States v.
Sarmiento–Perez, 633 F.2d 1092, 1101 (5th Cir. 1981)). The first requirement



       3  Piper contends that Ely’s testimony was admissible to impeach Rosales’s and Garza’s
character for truthfulness. See FED. R. EVID. 608(a). However, Rule 608 is subject to limits
on reliability and relevance, and a witness must be acquainted enough with the individual to
have formed a reliable opinion about his character. See United States v. Garza, 448 F.3d 294,
297 (5th Cir. 2006). The record does not demonstrate that Ely had knowledge of Rosales’s
and Garza’s character for untruthfulness. Additionally, for reasons described below, it is not
clear that Ely’s hearsay statements would have been admissible.
        4 The parties dispute whether Ely would have been a competent witness under Federal

Rule of Evidence 601, which provides that “[e]very person is competent to be a witness unless
these rules provide otherwise.” FED. R. EVID. 601. Piper is correct that Ely’s competency
examination was not a basis for excluding his testimony at Piper’s trial under Rule 601. See
United States v. McRary, 616 F.2d 181, 183 (5th Cir. 1980) (a person may still be competent
to serve as a witness under Rule 601 even if he was determined not competent to stand trial).
Even so, Piper must show that Castle’s statements, through Ely, were admissible.

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is met here because the declarant, Castle, invoked his Fifth Amendment
privilege against self-incrimination and was therefore unavailable to testify.
See FED. R. EVID. 804(a)(1) (a declarant is unavailable as a witness if the
declarant invokes a privilege); United States v. Young Bros., Inc., 728 F.2d 682,
690 (5th Cir. 1984) (“[I]t is clear that a witness who is unavailable because he
has invoked the Fifth Amendment privilege against self-incrimination is
unavailable under the terms of 804(a)(1)”).
      As to the second requirement, this court does not “read Rule 804(b)(3) to
be limited to direct confessions of guilt. Rather, by referring to statements that
‘tend’ to subject the declarant to criminal liability, the Rule encompasses
disserving statements by a declarant that would have probative value in a trial
against the declarant.” See United States v. Thomas, 571 F.2d 285, 288 (5th
Cir. 1978).   Some of Castle’s statements tend to show that Castle knew
numerous and specific details about the drug trafficking conspiracy, including
the names of the conspirators, the hierarchy within the conspiracy, where
Hernandez and Garza were returning from when they were pulled over by law
enforcement, and the drug quantities involved. See Thomas, 571 F.2d at 288.
However, as Ely’s written statement reveals, Castle stated that he knew “all
of this” information by confronting Garza while incarcerated:
      Piper said how do you know all of this. KC said because when
      Garza was in here I confronted him about it, he denied setting me
      and the twins up[.]
Thus, Castle’s statements could be subject to multiple interpretations. On the
one hand, Castle’s statements could be interpreted as an attempt to disclaim
all participation in the conspiracy, and to relay knowledge of the conspiracy to
Piper that he later learned through the criminal proceedings against him and
by confronting Garza in prison about the alleged set up. Such statements
would serve Castle’s penal interests rather than subject him to criminal


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liability, as Castle would be portrayed as the innocent victim of a set up. Under
this interpretation, Castle’s statements would be inadmissible under Rule
804(b)(3). Alternatively, Castle’s statement about confronting Garza could be
construed narrowly as the source of his knowledge only as to certain aspects of
the conspiracy, such as Garza’s and Rosales’s plan to set up Piper. Under this
interpretation, some of Castle’s other statements reflecting knowledge of the
conspiracy could still be considered statements against his penal interest and
would therefore be admissible. See Williamson v. United States, 512 U.S. 594,
600–01 (1994) (finding part of a statement admissible under Rule 804(b)(3) and
reasoning that “the most faithful reading of Rule 804(b)(3) is that it does not
allow admission of non-self-inculpatory statements, even if they are made
within a broader narrative that is generally self-inculpatory.”); see also United
States v. Castelan, 219 F.3d 690, 694 (7th Cir. 2000) (“Under Williamson, the
district court must consider whether each statement, not just the confession as
a whole, was truly self-inculpatory.”).
       Third, Rule 804(b)(3) requires that a statement be corroborated by
circumstances clearly indicating trustworthiness. See Bell, 367 F.3d at 466.
“[T]he statements must bear adequate ‘indicia of reliability,’ such that
‘adversarial testing would be expected to add little, if anything, to the
statements’ reliability.’” Id. (citing Lilly v. Virginia, 527 U.S. 116, 124–25
(1999)). The record substantiates some of Castle’s statements and indicates
some level of trustworthiness. 5          However, the fact that some of Castle’s


       5  For example, at Piper’s and Cortinas’s trial, Rosales testified that Castle was his
client, that he supplied Castle with drugs, and that he had known Castle “about a year.”
Furthermore, Garza testified at trial that he had met Castle “like once or twice,” and that he
had spoken to Castle for “about an hour, two hours” about Garza’s “paperwork” while both
men were incarcerated in the same facility. On the other hand, Garza clearly contradicted
Castle’s statements when he denied talking to Castle about Piper’s and Cortinas’s case or
about setting up his codefendants. Thus, although Castle’s statements bear some indicia of
reliability, they are somewhat contradicted by other evidence in the record. Therefore, it is

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statements direct criminal liability toward others cuts against their
trustworthiness. See United States v. Hale, 685 F.3d 522, 540 (5th Cir. 2012)
(where a declarant was likely to become a co-defendant, “his statements that
tend[ed] to implicate others at least as much as himself [were] less credible
and more suspicious than other out-of-court statements.”); see also Williamson,
512 U.S. at 603 (“Even the confessions of arrested accomplices may be
admissible if they are truly self-inculpatory, rather than merely attempts to
shift blame or curry favor.”).         Additionally, we cannot conclude that the
circumstances under which the statements were made entitle them to
additional credibility. See Thomas, 571 F.2d at 290 (noting that a declarant’s
statement exculpating the defendant was entitled to additional credibility
based on the circumstances in which it was made “because the possibility of
fabrication . . . [was] slight”). Castle made the statements to Piper while the
two were incarcerated in the same facility, where it would have been possible
to devise a plan to make a mutually beneficial statement casting them as the
innocent victims of a set up.
       Because it is not clear or obvious that Castle’s hearsay statements were
admissible, Piper cannot make the necessary showing that his due process and
compulsory process rights were clearly violated. 6 See Puckett, 556 U.S. at 135;




not clear that “adversarial testing would be expected to add little, if anything, to the
statements’ reliability.” See Bell, 367 F.3d at 466.
       6 Piper contends that the Government could have produced Ely through other efforts,

such as by facilitating communication between the court that ordered Ely’s competency
examination and Ely’s physician, or by issuing a Rule 17(b) subpoena. However, the record
does not reflect that Piper asked the Government for further assistance in securing Ely
through any of the alternative means he now proposes. Cf. United States v. Crook, 479 F.
App’x 568, 578 (5th Cir. 2012) (finding no constitutional violation where the government did
not subpoena a witness, but did not make the witness unavailable, and fully cooperated when
the defendant actually asked for assistance). Additionally, given the foregoing discussion
about the admissibility of Ely’s testimony, any additional efforts by the Government to
compel Ely to testify would also have been unnecessary.

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Taylor, 484 U.S. at 410 (“The accused does not have an unfettered right to offer
testimony that is incompetent, privileged, or otherwise inadmissible under
standard rules of evidence.”).
                      2. Motion to continue the trial
      Piper argues that the district court abused its discretion by denying his
motion to continue the trial so that Ely could complete his competency
examination and testify. Piper moved to continue the trial on Friday, March
17, 2017, three days before the trial was set to begin on Monday, March 20.
The Government opposed the motion, citing, inter alia, the inadmissibility of
Ely’s testimony. The court denied the motion for the reasons given by the
Government.
      A district court has broad discretion in deciding whether to grant a
request for a continuance, and this court reviews “only for an abuse of that
discretion resulting in serious prejudice.” United States v. Stalnaker, 571 F.3d
428, 439 (5th Cir. 2009) (quoting United States v. German, 486 F.3d 849, 854
(5th Cir. 2007)).   When a defendant requests a continuance based on an
unavailable witness, he must demonstrate: “(1) that due diligence was
exercised to obtain the attendance of the witness; (2) that the witness would
tender substantial favorable evidence; (3) that the witness will be available
and willing to testify; and (4) that denial of the continuance would materially
prejudice the movant.” United States v. Hickerson, 489 F.3d 742, 745 (5th Cir.
2007) (citing United States v. Olaniyi-Oke, 199 F.3d 767, 771 (5th Cir. 1999)).
Because Ely’s testimony was not clearly admissible, Piper cannot show that
denying the motion to continue would have resulted in serious prejudice, and
the district court did not abuse its discretion by denying the motion.




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                   3. Motion to vacate and order a new trial
      Piper next contends that the district court abused its discretion by
denying his motion for a new trial. See United States v. Erwin, 277 F.3d 727,
731 (5th Cir. 2001). The district court denied the motion without specifying its
reasons. Piper now argues that he was entitled to a new trial based on new
evidence. Federal Rule of Criminal Procedure 33 permits a district court to
grant a new trial upon a defendant’s motion “if the interest of justice so
requires.” FED. R. CRIM. P. 33(a). To justify a new trial on the basis of newly
discovered evidence, a defendant must show: “(1) the evidence is newly
discovered and was unknown to the defendant at the time of trial; (2) the
failure to detect the evidence was not due to a lack of diligence by the
defendant; (3) the evidence is not merely cumulative or impeaching; (4) the
evidence is material; and (5) the evidence if introduced at a new trial would
probably produce an acquittal.” See United States v. Wall, 389 F.3d 457, 467
(5th Cir. 2004).
      Piper contends that the following sentence from his PSR constituted new
evidence: “Rosales often requested Garza to assist in his drug trafficking
activities such as the retrieval of a truck from Oklahoma.” 7 He argues that
this statement, suggesting that Turner (and not Piper) was Rosales’s main
drug buyer in Missouri “would probably produce an acquittal.” However, the
statement from the PSR is vague and lacks foundation. It is not clear whether
it implicates Turner in the drug trafficking activities, or whether retrieval of
the truck was merely necessary for Rosales and his co-conspirators to carry out
their drug trafficking activities. For these reasons, Piper cannot prove that
the evidence, if introduced at a new trial, would “probably produce an



      7Though the PSR states that Rosales bought a truck in Oklahoma, by all accounts, he
purchased a truck from Turner in Missouri.

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acquittal.” See United States v. Ramirez, 628 F. App’x 15, 17–18 (2d Cir. 2015)
(affirming the district court’s denial of a motion for a new trial where a PSR
that was withheld would not have changed the result of the trial). The district
court’s denial of Piper’s motion was not an abuse of discretion. See Erwin, 277
F.3d at 731.
                    4. Piper’s Sentencing Guidelines range
       Piper argues that the district court erred in calculating his Sentencing
Guidelines range. We review a district court’s “interpretation or application of
the Sentencing Guidelines” de novo and factual findings for clear error. See
United States v. Hernandez-Galvan, 632 F.3d 192, 196 (5th Cir. 2011). “A
presentence report generally bears sufficient indicia of reliability to be
considered as evidence by the sentencing judge in making factual
determinations.” See United States v. Nava, 624 F.3d 226, 231 (5th Cir. 2010).
A district court may adopt the PSR’s facts “without further inquiry if those
facts have an adequate evidentiary basis with sufficient indicia of reliability
and the defendant does not present rebuttal evidence or otherwise demonstrate
that the information in the PSR is unreliable.” See United States v. Harris,
702 F.3d 226, 230 (5th Cir. 2012) (quoting United States v. Trujillo, 502 F.3d
353, 357 (5th Cir. 2007)).
       Piper’s PSR stated that he was accountable for 13.6 kilograms of
methamphetamine, providing a base offense level of 34. Piper was given a two-
level enhancement pursuant to U.S.S.G. § 2D1.1(b)(5) for an offense involving
“the important of amphetamine or methamphetamine” on the basis that the
methamphetamine he distributed was imported from Mexico. 8 Piper objected


       8 Piper was also given a second two-level enhancement pursuant to U.S.S.G.
§ 2D1.1(b)(12) for “maintain[ing] a premises for the purpose of manufacturing or distributing
a controlled substance” on the basis that he “utilized his residence to store and distribute
methamphetamine.” He does not sufficiently brief a challenge to the district court’s

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                                     No. 17-10913

to these calculations below, and he now claims the PSR’s calculations relied on
“conflicting, contradictory” testimony by Rosales and Garza that lacked
sufficient indicia of reliability.
      The district court overruled Piper’s objection to the drug quantity
attributable to him on the basis that there was sufficient cell phone record
evidence and witness testimony corroborating the 13.6-kilogram amount. We
agree. In August 2015, Piper traveled to Fort Worth, Texas, to purchase three
pounds (1.36 kilograms) of methamphetamine from Cortinas. In September
2015, he purchased three pounds (1.36 kilograms) of methamphetamine from
Garza, Rosales, and Cortinas, which was later exchanged for another three
pounds (1.36 kilograms) of higher quality methamphetamine. While Garza
was detained in Oklahoma, Piper traveled to Arlington, Texas, on three
occasions to buy three pounds of methamphetamine each time (4.08
kilograms).        Piper     resumed      buying      three-pound      increments      of
methamphetamine directly from Garza on three occasions (4.08 kilograms),
twice in Missouri and once in Texas. Phone records also support that Piper
was supposed to buy additional methamphetamine on the day Rosales and
Garza were arrested, presumably in the same increment of three pounds (1.36
kilograms). See United States v. Valdez, 453 F.3d 252, 267 (5th Cir. 2006) (a
district “court may extrapolate the quantity [of drugs] from any information
that has sufficient indicia of reliability to support its probable accuracy”)
(internal quotation marks omitted); see also United States v. Banda, 236 F.
App’x 955, 956 (5th Cir. 2007) (“The district court is permitted to make
reasonable estimates of drug quantities and may make reasonable inferences




application of the § 2D1.1(b)(12) enhancement. Therefore, he has abandoned any such claim.
See Boyer v. Vannoy, 863 F.3d 428, 445 (5th Cir. 2017) (a defendant abandons an argument
where he has offered it in a brief heading, without any further elaboration).

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                                  No. 17-10913

from the facts.”).    Together, these transactions total 13.6 kilograms of
methamphetamine. Thus, the district court did not clearly err by relying on
the PSR’s calculation of the drug quantity attributable to Piper. See Turner,
319 F.3d at 724 (a district court’s factual findings are “not clearly erroneous if
they are plausible in light of the record as a whole”).
      The PSR also recommended a two-level enhancement pursuant to
§ 2D1.1(b)(5) based on a DEA report from 2015, finding that Rosales received
methamphetamine imported from Mexico for further distribution.                 Piper
objected at sentencing, and the district court overruled the objection with little
explanation,   stating:   “I   think   the   evidence     establishes   that     the
methamphetamine was imported from Mexico.” Piper now argues that this
was conclusory. However, the record demonstrates that the DEA initiated an
investigation into Rosales’s drug distribution activities in 2015, that Rosales’s
drug distribution conspiracy in and around Dallas and Fort Worth, Texas,
began in March 2015, and that Piper bought large quantities of
methamphetamine from Rosales in Texas and Missouri between August and
September of 2015. Accordingly, the district court’s application of the two-level
enhancement for importation was not clearly erroneous. See Turner, 319 F.3d
at 724.
                                B. Joint Claim
      Cortinas and Piper argue that their convictions should be vacated on the
basis that the district court’s jury charge and verdict form were ambiguous,
inconsistent, and incorrectly stated the law. The parties concede that we
review for plain error, as they did not object to the jury charge below. See
Puckett, 556 U.S. at 135. “A jury instruction must: (1) correctly state the law,
(2) clearly instruct the jurors, and (3) be factually supportable.” United States
v. Fairley, 880 F.3d 198, 208 (5th Cir. 2018) (citing United States v. Phea, 755


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                                      No. 17-10913

F.3d 255, 266 (5th Cir. 2014)). “[S]pecific jury instructions are to be judged not
in isolation, but must be considered in the context of the instructions as a whole
and the trial record.”       See Phea, 755 F.3d at 266 (internal citations and
quotation marks omitted). “Verdict forms are considered part of the jury
instruction, and we evaluate the combined effect on the jury.” See Fairley, 880
F.3d at 208. “Jury instruction error ‘does not amount to plain error unless it
could have meant the difference between acquittal and conviction.’”                     Id.
(quoting United States v. McClatchy, 249 F.3d 348, 357 (5th Cir. 2001)); see
also Henderson v. Kibbe, 431 U.S. 145, 154 (1977) (“It is the rare case in which
an improper instruction will justify reversal of a criminal conviction when no
objection has been made in the trial court.”). Piper and Cortinas raise three
arguments, which we consider in turn.
       First, they claim the district court’s jury charge departs from the Fifth
Circuit’s pattern jury instruction for § 841(a)(1). See PATTERN CRIM. JURY
INSTR. 5TH CIR. 2.93 (2015).         In laying out the elements of a § 841(a)(1)
violation, Piper and Cortinas claim that the district court improperly amended
the phrase “the defendant” to state “the defendant or coconspirator” in the first
and third elements, 9 which relieved the Government of its burden to prove the
existence of a conspiracy in the first place. We disagree. Both orally and in its



       9Piper and Cortinas contend that the district court departed from the Fifth Circuit’s
Pattern Jury Instructions for § 841(a)(1) as follows:
              Section 841(a)(1), makes it a crime for anyone knowingly or
              intentionally to possess a controlled substance with intent to distribute
              it. . . . For you to find the defendant guilty of this crime, you must be
              convinced that the government has proved each of the following beyond
              a reasonable doubt:
                        First: That the defendant or coconspirator knowingly
                        possessed a controlled substance . . .
                        Third: That the defendant or coconspirator possessed the
                        substance with the intent to distribute it. . . .
(emphasis added).

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                                      No. 17-10913

written charge to the jury, the district court instructed the jury that the
government must prove the elements of a conspiracy beyond a reasonable
doubt. The district court added the language “or coconspirator” within the
context of explaining the Government’s additional burden to prove the object
of the conspiracy; here, § 841(a)(1):
       The government need not prove that the defendant himself
       possessed a controlled substance with the intent to distribute it;
       the government need only prove that the defendant conspired with
       another person to do so. Nevertheless, so that you can understand
       the object of the conspiracy that the government has alleged, I will
       explain the elements of the crime of possession with intent to
       distribute a controlled substance.
By instructing the jury as to the object of the conspiracy, the district court did
not plainly err. 10 See United States v. Gaytan, 74 F.3d 545, 553 (5th Cir. 1996)
(holding that the district court did not abuse its discretion by departing from a
Pattern Jury Instruction to offer a more precise one). Cf. Fairley, 880 F.3d at
209 (holding that the district court’s departure from the Fifth Circuit’s pattern
language for 18 U.S.C. § 641 was plain error, where the court mixed the verbs
drawn from § 641’s “stealing” paragraph with verbs drawn from § 641’s
“receiving” paragraph and fashioned an incorrect element of intent).
       Second, Piper and Cortinas contend that the jury instructions require
reversal because the district court instructed the jury that a § 841(a)(1)
violation occurs when “the quantity of the [methamphetamine] substance was



       10  Piper and Cortinas argue that a coconspirator’s knowledge or possession is
irrelevant to whether a violation of § 841(a)(1) occurred. However, “[i]t is settled that ‘an
overt act of one partner may be the act of all without any new agreement specifically directed
to that act.’” See Pinkerton v. United States, 328 U.S. 640, 646–47 (1946). To the extent they
argue that the district court failed to provide a sufficient Pinkerton instruction, any error
would likely be harmless. See United States v. Elizondo, 920 F.2d 1308, 1317 (7th Cir. 1990)
(holding that the district court’s inadequate Pinkerton instruction was harmless error, as the
Government’s case did not rely solely on the Pinkerton doctrine of vicarious co-conspirator
liability and alternative theories of direct and vicarious liability existed).

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                                 No. 17-10913

at least 500 grams,” whereas the relevant provision of the statute actually
states “500 grams or more.” See 21 U.S.C. § 841(b)(1)(A)(viii) (emphasis
added).   We find no meaningful distinction between the district court’s
language and § 841(b)(1)(A)(viii) and, even assuming the district court’s
inconsistent language was error, it was not plain and did not affect Piper’s or
Cortinas’s substantial rights.
      Lastly, Piper and Cortinas argue that the district court’s instructions
and the jury verdict form provided jurors with three different recitations of the
elements necessary to convict them under § 846 and § 841(a)(1): first, that the
jury could convict if the conspiracy involved “at least 500 grams” of a
methamphetamine mixture; second, that the jury could convict if the
conspiracy involved “more than 500 grams” of the mixture; and third, the jury
verdict form gave the jury the option of convicting under “Count One of the
Indictment,” which they contend refers to the original indictment charging
them with conspiracy involving 50 grams or more of a mixture of
methamphetamine.       For reasons stated above, the “at least 500 grams”
language is not plain error with respect to § 841(b)(1)(A). Additionally, the
district court’s “more than 500 grams” language weighed in Pipers’ and
Cortinas’s favor, as the jury could have declined to convict for an amount equal
to 500 grams. Thus, their substantial rights were not affected. Finally, the
jury verdict form gave the jury the option to convict Piper and Cortinas “as to
Count One of the Indictment.” In light of the jury instructions as a whole, and
the fact that the district court described the charges set forth in the
superseding indictment at trial, it is unlikely that the jury interpreted the
verdict form to refer to the original indictment. See Jones v. United States, 527
U.S. 373, 393 (1999) (“[A]lthough the verdict forms standing alone could have
[confused the jury], any confusion created by the verdict forms was clarified


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                                No. 17-10913

when considered in light of the entire jury instruction.”) (internal citations
omitted). Piper and Cortinas have failed to demonstrate plain error.
                                     ***
      For these reasons, we AFFIRM.




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