                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 01-1426
                                  ___________

United States of America,             *
                                      *
            Plaintiff-Appellee,       *
                                      * Appeal from the United States
      v.                              * District Court for the
                                      * District of Minnesota.
Eusebio Lopez-Arce, also known as     *
Eduardo De Jesus Orzuna, also known *
as Eusebio Lopez-Perez,               *
                                      *
            Defendant-Appellant.      *
                                 ___________

                             Submitted: August 20, 2001

                                 Filed: October 3, 2001
                                  ___________

Before BYE, LAY, and JOHN R. GIBSON, Circuit Judges.
                             ___________

LAY, Circuit Judge.

      Eusebio Lopez-Arce1 was convicted of one count of conspiracy to distribute
cocaine and methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(a)(1); one
count of distribution of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and
18 U.S.C. § 2; one count of possession with intent to distribute methamphetamine,


      1
      Eusebio Lopez-Arce was originally charged and tried under the name
Eusebio Lopez-Perez.
in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and one count of possession
with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1). The district
court2 sentenced Lopez-Arce to 235 months imprisonment and five years supervised
release. On appeal, Lopez-Arce contends (1) the district court erred in admitting
evidence seized during the arrest of an unindicted co-conspirator who was tried in a
separate proceeding because the Government failed to prove the existence of the
overall conspiracy, (2) this resulted in a variance between the conspiracy charged and
the proof offered at trial which substantially affected his rights, and (3) the district
court erred in calculating his criminal history score and in denying his request for a
minimal role reduction. We affirm.

                                       I. Facts

       This appeal arises from seven undercover drug purchases from Jose Belen
Payan-Valencia beginning in August of 1999 and culminating in a “buy bust” on
January 20, 2000. The first five purchases involved cocaine, while the final two
purchases involved methamphetamine. Payan-Valencia was followed to the
apartment of Eusebio Lopez-Arce prior to one of the cocaine purchases, and prior to
both methamphetamine purchases. Jose Belen Payan-Valencia, Analberto Lopez-
Arce,3 and Eusebio Lopez-Arce were subsequently charged (along with others known
and unknown) with conspiracy to distribute cocaine and methamphetamine. Payan-
Valencia and Analberto Lopez-Arce pled guilty to the charges filed against them.

      Between August 10, 1999 and January 20, 2000, Payan-Valencia made sales


      2
       The Honorable Michael J. Davis, United States District Judge for the
District of Minnesota.
      3
       Analberto Lopez-Arce is the younger brother of the defendant.

                                          -2-
of cocaine and methamphetamine to an undercover officer, Deputy Craig Martin, of
the Hennepin County Sheriff’s Office. During that period, law enforcement officers
were attempting to identify the source of the drugs. Each time that Deputy Martin
would place an order for cocaine or methamphetamine other officers would follow
Payan-Valencia to determine where he was obtaining the illegal drugs.

      On August 10, 1999, after Deputy Martin had ordered two ounces of cocaine
from Payan-Valencia, surveillance officers followed Payan-Valencia to an apartment
at 280 West Winifred in Saint Paul, Minnesota. Eusebio Lopez-Arce lived at 280
West Winifred, Apartment Four. Payan-Valencia was then observed leaving 280
West Winifred, returning to his own apartment in Bloomington, Minnesota, and
subsequently making the sale to Deputy Martin.

       On August 17, 1999, prior to the second transaction, surveillance officers
followed Payan-Valencia to 1377 Edgerton Street in Saint Paul. This was the address
of Analberto Lopez-Arce. When Payan-Valencia left the Edgerton residence, he was
with another Hispanic male who left in a green Crown Victoria, a vehicle driven by
Isidro Pacheco-Sanchez. The Crown Victoria was followed to 280 West Winifred.
Payan-Valencia was then followed to the location where he again sold Deputy Martin
two ounces of cocaine.

      On August 25, 1999, prior to the third transaction between Payan-Valencia and
Deputy Martin, surveillance officers again followed Payan-Valencia to 1377
Edgerton Street in Saint Paul. Just prior to Payan-Valencia’s arrival, a blue Nissan
Sentra registered under an alias used by Eusebio Lopez-Arce arrived, having been
followed from his residence at 280 West Winifred. After approximately forty
minutes, Payan-Valencia left Analberto Lopez-Arce’s residence, returned to his own
apartment, and then met with Deputy Martin and sold him four ounces of cocaine.
It was during this exchange that Deputy Martin first discussed possible future


                                        -3-
transactions involving methamphetamine with Payan-Valencia.

       On September 8, 1999, Deputy Martin purchased six ounces of cocaine from
Payan-Valencia. Again, Payan-Valencia was followed by surveillance officers to
Analberto Lopez-Arce’s Edgerton Street residence prior to the sale. The final cocaine
deal took place on September 21, 1999. Deputy Martin again purchased six ounces
of cocaine from Payan-Valencia.

      During the September 21 meeting between Payan-Valencia and Deputy Martin,
Payan-Valencia explained that there might be some problems getting the
methamphetamine as they had discussed previously because “another boy who gets
[methamphetamine] from my friend” had been arrested a few days earlier. Payan-
Valencia told Deputy Martin that the individual to whom he referred had been caught
“on the street” with “twenty-five ounces or something.”

       Five days earlier, in Saint Paul, Isidro Pacheco-Sanchez had been arrested after
an investigation by the Ramsey County Sheriff’s Office. After an informant had
ordered methamphetamine, a surveillance officer followed Pacheco-Sanchez to
Eusebio Lopez-Arce’s residence at 280 West Winifred. He entered the apartment
building without a coat, and returned to his car ten minutes later wearing a coat and
apparently trying to hide something underneath. Pacheco-Sanchez was stopped
shortly after leaving the building at 280 West Winifred and approximately twenty
ounces of methamphetamine were seized from the green Crown Victoria he was
driving.

       The next transaction between Payan-Valencia and Deputy Martin did not occur
until January 2000. Although they had some discussions, Payan-Valencia said that
he was not able to locate his source. On January 18, 2000, prior to the sale of one-
half pound of methamphetamine, surveillance officers followed Payan-Valencia to


                                         -4-
Eusebio Lopez-Arce’s residence at 280 West Winifred. At the sale, Deputy Martin
payed Payan-Valencia with $5500 in photocopied buy money. After the sale was
completed, surveillance officers followed Payan-Valencia back to Eusebio Lopez-
Arce’s residence at 280 West Winifred. Payan-Valencia waited until Eusebio arrived,
went inside, left a few minutes later, and returned to his apartment in Bloomington.

      Prior to the final sale on January 20, 2000, which was for one and one-half
pounds of methamphetamine, surveillance officers followed Payan-Valencia to
Eusebio Lopez-Arce’s residence at 280 West Winifred. Payan-Valencia went inside
and shortly thereafter Analberto Lopez-Arce arrived and went inside. Payan-Valencia
and Analberto Lopez-Arce left Eusebio Lopez-Arce’s residence together. Analberto
then drove to an apartment complex in Saint Paul, entered, and then left and drove
back to meet Payan-Valencia in a parking lot. Payan-Valencia subsequently went to
meet with Deputy Martin. Payan-Valencia entered Deputy Martin’s vehicle and
showed him the methamphetamine. Deputy Martin then gave the arrest signal and
Payan-Valencia was placed under arrest.

       At approximately the same time, Eusebio and Analberto Lopez-Arce were
arrested together at a gas station in Saint Paul after leaving Eusebio Lopez-Arce’s
residence. A search of Eusebio Lopez-Arce incident to his arrest found that $180 of
the $482 he had in his wallet matched the photocopied buy money from the
methamphetamine transaction that had taken place on January 18, 2000. Analberto
Lopez-Arce had no money matching the buy money.

      Later that day, a search warrant was executed at Eusebio Lopez-Arce’s
residence at 280 West Winifred, Apartment Four, Saint Paul, Minnesota. In the
master bedroom, two individually-wrapped, one-ounce packages of cocaine were
found in a baby’s crib. In the same bedroom, several envelopes containing $9000 in
cash were discovered. Of that total, $1980 matched the photocopied buy money


                                        -5-
given to Payan-Valencia in exchange for the one-half pound of methamphetamine
two days earlier.

       Eusebio Lopez-Arce, Analberto Lopez-Arce, and Jose Belen Payan-Valencia
were subsequently charged in a nine-count indictment. Eusebio Lopez-Arce was
charged with four counts: (1) conspiracy, (2) distribution of methamphetamine, (3)
possession with intent to distribute methamphetamine, and (4) possession with intent
to distribute cocaine. Analberto Lopez-Arce and Jose Belen Payan-Valencia pled
guilty to the charges brought against them. On June 29, 2000, after a three day trial,
a jury found Eusebio Lopez-Arce guilty on all four counts. He was sentenced on
February 7, 2001. His total offense level was thirty-four and his criminal history
category was V. Accordingly, he was sentenced to 235 months imprisonment, the
lowest period available within the guideline sentencing range.

                                   II. Discussion

A. Introduction of the Evidence Obtained in the Arrest of Isidro Pacheco-Sanchez

       Defendant first argues that the district court erred by admitting into evidence
the approximately twenty ounces of methamphetamine seized in connection with the
September 16, 1999, arrest of Isidro Pacheco-Sanchez. Eusebio Lopez-Arce contends
that the Government did not prove that Pacheco-Sanchez was part of the overall
conspiracy alleged in count one of the indictment, and therefore the evidence was
inadmissible at trial. The Government counters that the district court did not abuse
its discretion in admitting the evidence because it would be admissible either as part
of the overall conspiracy charged, or alternatively under Federal Rule of Evidence
404(b). We review such evidentiary rulings for abuse of discretion. United States v.
Forcelle, 86 F.3d 838, 841 (8th Cir. 1996).



                                         -6-
       The essence of the crime of conspiracy is the “agreement to commit an
unlawful act.” Iannelli v. United States, 420 U.S 770, 777 (1975). “The agreement
need not be shown to have been explicit. It can instead be inferred from the facts and
circumstances of the case.” Id. at 777 n.10. Furthermore, whether the evidence
proves there was a single conspiracy or a number of separate conspiracies is a
question of fact for the jury to decide. United States v. Morales, 113 F.3d 116, 118
(8th Cir. 1997); United States v. Jenkins, 78 F.3d 1283, 1288 (8th Cir. 1996). In light
of the record before us, we hold that the district court did not err in admitting the
evidence obtained during the arrest of Pacheco-Sanchez.

       The evidence adduced at trial connects Pacheco-Sanchez with all three of the
indicted co-conspirators. On August 17, 1999, Pacheco-Sanchez exited Analberto
Lopez-Arce’s residence with Payan-Valencia and was followed to Eusebio Lopez-
Arce’s apartment building. On September 16, 1999, the day of Pacheco-Sanchez’s
arrest, he was followed to Eusebio Lopez-Arce’s apartment, entered without a coat,
and left wearing a coat under which it appeared that he was hiding something. Soon
after, he was arrested with twenty ounces of methamphetamine. Additionally, it is
reasonable to infer that on September 21, 1999, Payan-Valencia referred to the arrest
of Pacheco-Sanchez. During that conversation Payan-Valencia further connected
Pacheco-Sanchez with Payan-Valencia’s source: Payan-Valencia told Deputy Martin
the person who had recently been arrested was “another boy who gets
[methamphetamine] from my friend.”

       Given these facts and their reasonable inferences, we hold that the district
court did not abuse its discretion in allowing the methamphetamine associated with
the September 16, 1999, arrest of Pacheco-Sanchez to be admitted into evidence as
part of the overall conspiracy. The record tends to connect Pacheco-Sanchez to all
three of the indicted co-conspirators and provides sufficient grounds for the
admission of evidence as part of the conspiracy as a whole.


                                         -7-
B. Variance Between Alleged Conspiracy and Proof Offered at Trial

       Eusebio Lopez-Arce next argues that the Government failed to prove the single
conspiracy alleged in the indictment, but instead proved a number of conspiracies,
resulting in a variance that substantially affected (i.e., prejudiced) his rights. We
disagree. Not only do we hold the jury could have reasonably found the single
conspiracy charged based upon the proof offered at trial, but it is difficult to see how
the defendant was prejudiced given that he was the sole defendant on trial and was
arguably implicated in any other conspiracy the evidence could prove.

       “In order to prevail . . . based on a fatal variance between the single conspiracy
charged and the proof offered at trial,” Eusebio Lopez-Arce “must establish that a
variance exits, and that the variance affected his substantial rights.” United States v.
Rabins, 63 F.3d 721, 724 (8th Cir. 1995). “We reverse on such a claim if the
evidence does not support the single conspiracy and the defendant was prejudiced by
the variance between the indictment and the proof.” United States v. Pullman, 187
F.3d 816, 821 (8th Cir. 1999). In making such a determination, we look to the totality
of the circumstances, giving the verdict the benefit of the evidence and all reasonable
inferences that arise therefrom. Id.; Rabins, 63 F.3d at 724.

        In order to find that a single conspiracy exists, “it is not necessary to show that
all the conspirators were involved in each transaction or that all the conspirators even
knew each other.” United States v. Rosnow, 977 F.2d 399, 405 (8th Cir. 1992) (per
curiam).

      “A defendant’s participation in a conspiracy is proven by evidence
      tending to show that the defendant shared a common purpose or design
      with his alleged coconspirators. . . . Thus, if the activities of a defendant
      . . . facilitated the endeavors of other alleged coconspirators or


                                           -8-
      facilitated the venture as a whole,” the necessary interdependence of the
      alleged conspirators’ acts–reflecting the conspirators’ coincidence of
      interests and a knowing coordination of efforts to produce a result in
      harmony with those interests–is present.

United States v. McCoy, 86 F.3d 139, 141 (8th Cir. 1996) (quoting and citing United
States v. Horn, 946 F.2d 738, 740-41 (10th Cir. 1991)). In evaluating the evidence,
we consider factors such as “the nature of the activities, the location and time frame
in which the activities were performed, and the participants involved.” Morales, 113
F.3d at 119 (internal citations omitted) (finding two different conspiracies to
distribute marijuana because the operations took place in two wholly separate
locations, were separated by more than four months, and had but one common
participant).

        In the present case, a reasonable jury could find from the evidence offered at
trial the existence of the single conspiracy charged. The evidence (viewed in the light
most favorable to the verdict) tended to show the existence of a conspiracy with the
common goal of selling cocaine and methamphetamine: the sales of cocaine and
methamphetamine took place in one area (Saint Paul metropolitan area), were
continuous for a period of six months, and all of the co-defendants charged were
familiar with each other and with Isidro Pacheco-Sanchez. The evidence further
demonstrated that the conspiracy revolved around the residences of Analberto and
Eusebio Lopez-Arce. The Government’s proof was sufficient to show the existence
of a single conspiracy involving Eusebio Lopez-Arce and his two co-defendants, as
well as Pacheco-Sanchez despite the fact that Pacheco-Sanchez was arrested in
September 1999, and tried in separate proceedings. Therefore, no variance existed.

C. Sentencing

      Eusebio Lopez-Arce argues that his criminal sentence was unlawful because


                                         -9-
his “Criminal History was calculated without sufficient information and evidence as
required by the Sentencing Guidelines.” Thus, he concludes the “trial court breached
its duty to exercise its discretion” by not imposing a sentence that “reflects the true
impact of prior criminal history . . . .” Furthermore, he contends that the district court
erred by not finding his role to be “minimal” or “minor” under the United States
Sentencing Guidelines § 3B1.2(a) & (b). We find these claims to be without merit,
and affirm the sentence imposed by the district court.4

       After considering Eusebio Lopez-Arce’s initial claim that his criminal history
was improperly calculated, we are at a loss as to what additional information or
evidence ought to have been evaluated. We review the application of Chapter Four
of the United States Sentencing Guidelines to the facts for clear error. United States
v. Jones, 87 F.3d 247, 248 (9th Cir. 1996), cert. denied, 519 U.S. 956 (1996). After
reviewing the Presentence Report, we cannot say that the district court’s sentence was
clearly erroneous.

      The Presentence Report appropriately computed Eusebio Lopez-Arce’s
criminal history: He received zero points for two offenses in California that occurred
more than ten years prior to commencement of the instant offense. See U.S.
Sentencing Guidelines Manual § 4A1.2(e)(2)-(3). He received one point each for
driving without a license, driving with a suspended license, and presentation of a
fraudulent identification card while in Pasadena, California. See id. §§ 4A1.1(c) &
4A1.2(c)(1). He received three points due to a 1991 conviction for possessing a

      4
        Defendant’s Offense Level was determined to be 34. Because his conviction
related to different controlled substances, Sentencing Guideline § 2D1.1(c) is applied
using marijuana equivalency. See U.S. Sentencing Guidelines Manual § 2D1.1(c)
note 10. Given the quantities of cocaine and methamphetamine for which the
defendant was found responsible–619.8 and 1463.5 grams respectively–we can find
no error in this calculation.

                                          -10-
narcotic and possessing a firearm in Los Angeles, California. See id. § 4A1.1(b). He
received three points for a 1993 conviction for possessing narcotics for sale and sale
of narcotics in Los Angeles, California, resulting in a sentence of three years in state
prison. See id. § 4A1.1(a). Finally, he received one point based on a 1996 conviction
for theft and giving false information to police after moving to Minnesota. See id. §
4A1.1(c). He received two additional points because he violated his parole, resulting
in a violation warrant that was outstanding at the time of the instant offense. See id.
§ 4A1.1(d). This history results in a total of eleven criminal history points, which
places Eusebio Lopez-Arce in Category V. See id. Ch. 5, Pt. A (Sentencing Table).

       On appeal, the defendant reiterates the objections he made to the Presentence
Report in the district court. We hold that the district court’s overruling of these
objections was not erroneous. Specifically, each sentence for which criminal history
points were assigned was accurately calculated according to United States Sentencing
Guidelines §§ 4A1.1 and 4A1.2 and arose from unrelated cases. See U.S. Sentencing
Guidelines Manual § 4A1.2 note 3. Despite the fact that the sentence for driving
without a license was imposed nearly five years after the offense was committed and
presumably led to defendant’s parole violation in July of 1995, the United States
Sentencing Guidelines make it clear that it is a separate offense from the 1993 arrest
for possession and sale of narcotics for which he was on parole. See id. (“Prior
sentences are not considered related if they were for offenses that were separated by
an intervening arrest.”). Therefore, contrary to defendant’s contentions, it is not
sufficiently incorporated by the points assigned for the possession and sale of
narcotics sentence. Furthermore, while it is true that if Eusebio Lopez-Arce had
remained in California his parole for the 1993 conviction would have ended in
November 1996, he absconded from parole and a violation warrant was subsequently
issued. Thus, the allocation of two points under United States Sentencing Guideline
§ 4A1.1(d) was appropriate. See U.S. Sentencing Guideline Manual § 4A1.1(d) and
note 4 (“A defendant who commits the instant offense while a violation warrant from


                                         -11-
a prior sentence is outstanding . . . shall be deemed to be under a criminal justice
sentence for the purposes of this provision if that sentence is otherwise countable,
even if that sentence would have expired absent such a warrant.”) (emphasis added).

       Eusebio Lopez-Arce argues for a “departure from the applicable guideline
range” and for “incremental movement downward” due to the “over representation
of the seriousness” of his criminal history based upon the “minimal significance” of
certain prior offenses. We recognize the fact that driving without a license is a
relatively minor infraction within the broader context of the criminal law, however
this court is without “the authority to review the refusal to grant a downward
departure . . . unless the district court determined it lacked authority to consider a
particular mitigating factor.” United States v. Correa, 167 F.3d 414, 417 (8th Cir.
1999). Here it is clear that the district court considered the defendant’s objections to
the Presentence Report as over representing the seriousness of his criminal history
and found that Category V was an adequate representation of the severity of Eusebio
Lopez-Arce’s criminal history. There is nothing to indicate the district court believed
it lacked the authority to depart, and we therefore lack the jurisdiction to review its
refusal to do so. See id.

       Finally, Eusebio Lopez-Arce argues that the district court erred in refusing to
grant a reduction based upon his minimal or minor role in the crime under United
States Sentencing Guideline § 3B1.2. A district court’s determination of whether a
defendant was a minor or minimal participant may only be reversed if clearly
erroneous. Id. at 416. It is the defendant’s burden “to prove that he warrants the
reduction.” Id. We conclude that the district court’s finding that Eusebio Lopez-Arce
was an average participant in the offenses charged is not clearly erroneous.

      A minimal participant role reduction is “intended to cover defendants who are
plainly among the least culpable of those involved in the conduct of a group.” U.S.


                                         -12-
Sentencing Guidelines Manual § 3B1.2 note 1 (emphasis added). The guidelines also
provide that “the downward adjustment for a minimal participant will be used
infrequently.” Id. at note 2 (describing a minimal participant as, for instance, a
defendant whose sole role in a very large drug conspiracy was to unload a single
shipment). A minor participant is one “who is less culpable than most other
participants, but whose role could not be described as minimal.” Id. at note 3.

      The mere fact that a defendant is less culpable than his codefendants
      does not entitle defendant to “minor participant” status. Whether a
      downward adjustment is warranted is determined not only by comparing
      the acts of each participant in relation to the relevant conduct for which
      the participant is held accountable, but also by measuring each
      participant’s individual acts and relative culpability against the elements
      of the offense.

United States v. Snoddy, 139 F.3d 1224, 1228 (8th Cir. 1998) (quoting United States
v. Padilla-Pena, 129 F.3d 457, 471 (8th Cir. 1997), cert. denied, 524 U.S. 905 (1998),
and cert. denied, 524 U.S. 906 (1998)).

       The record supports the district court’s holding that Eusebio Lopez-Arce was
a willing participant in the conspiracy, undeserving of a minor or minimal role
reduction. Evidence introduced at trial showed that Payan-Valencia went to the
defendant’s residence immediately prior to one of the cocaine and both
methamphetamine deals. Similarly, Pacheco-Sanchez was followed to the
defendant’s residence just prior to his arrest, and the testimony of the surveillance
officer was that Pacheco-Sanchez entered Eusebio Lopez-Arce’s apartment without
a coat on and returned only ten minutes later wearing a coat and apparently
attempting to hide something underneath. Furthermore, Eusebio Lopez-Arce was the
only charged co-conspirator who was in possession of any of the buy money given
to Payan-Valencia in exchange for the half-pound of methamphetamine purchased by


                                         -13-
Deputy Martin on January 18, 2000. All this allows the reasonable inference that
Eusebio Lopez-Arce was the source of at least some of the cocaine and all of the
methamphetamine charged in the conspiracy. As the source, the defendant was not
entitled to a reduction for playing a minimal or minor role in the conspiracy, and the
district court’s refusal to grant such a reduction is therefore not clearly erroneous.

       Eusebio Lopez-Arce also cites Apprendi v. New Jersey, 530 U.S. 466 (2000),
in his appeal for a role reduction of the total base severity level. His reliance upon
Apprendi is misplaced.

      The rule of Apprendi only applies where the non-jury factual
      determination increases the maximum sentence beyond the statutory
      range authorized by the jury’s verdict. If the non-jury factual
      determination only narrows the sentencing judge’s discretion within the
      range already authorized by the offense of conviction, such as with the
      mandatory minimums applied to [the defendant], then the governing
      constitutional standard is provided by [McMillan v. Pennsylvania, 477
      U.S. 79 (1986)]. As we have said, McMillan allows the legislature to
      raise the minimum penalty associated with a crime based on non-jury
      factual findings, as long as the penalty is within the range specified for
      the crime for which the defendant was convicted by the jury. Apprendi
      expressly states that McMillan is still good law, though limited in
      application, and McMillan controls that aspect of this case.

United States v. Aguayo-Delgado, 220 F.3d 926, 933-34 (8th Cir. 2000). Therefore,
given that Eusebio Lopez-Arce’s sentence of 235 months imprisonment is less than
the twenty year statutory maximum proscribed under 21 U.S.C. § 841(b)(1)(C),
Apprendi is inapplicable.




                                        -14-
                         III. Conclusion

For the reasons set forth above, we AFFIRM.

A true copy.

      Attest:

         CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT




                               -15-
