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

                                                                            FILED
                                                                           July 15, 2008

                                       No. 07-40469                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff - Appellee
v.

JOSE ZAVALA; SIMON RICARTE BALDERAS, JR, also known as BJ;
RENE ZAVALA

                                                  Defendants - Appellants



                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 6:06-CR-27-3


Before KING, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
       Defendants-Appellants Jose Zavala (“Jose”), Rene Zavala (“Rene”), and
Simon Ricarte Balderas Jr. (“Balderas”) (collectively “Appellants”) appeal their
convictions and sentences for conspiracy to distribute drugs, possession with
intent to distribute drugs, and possession of a firearm in furtherance of a drug
trafficking crime. Appellants contend that (1) the evidence is insufficient to
support their convictions, (2) the district court erred by failing to instruct the


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                  No. 07-40469

jury that a mere buyer-seller relationship is insufficient to support a conviction
for conspiracy to distribute drugs, and (3) the district court erred by sentencing
them for multiple violations of 18 U.S.C. § 924(c). Jose and Rene also contend
that their sentences violate the Eighth Amendment. We affirm the convictions
of each defendant on all but three counts of the indictment, reverse the
convictions on those three counts, and remand for resentencing.
                        I. FACTS AND PROCEEDINGS
      Appellants were charged with and convicted of participating in a
methamphetamine (“meth”) drug trafficking ring spanning Texas, Louisiana,
and Florida. At trial, the government adduced testimony from several indicted
co-defendants and confidential informants (“CIs”). The relevant evidence can be
summarized as follows:
      Jose and his brother Rene distributed large amounts of meth directly to
Balderas and to several others in the Tyler, Texas area. Typically, Rene would
drive from Tyler to Dallas, pick up meth from one of several sources, and return
with it to the Tyler residence that he shared with Jose (“the Zavala Residence”).
On several occasions, Balderas waited for Rene at the Zavala Residence. On
Rene’s return, Jose would divide the meth into smaller quantities suitable for
distribution and would sell at least some of the meth to Balderas. Jose also sold
meth to several other persons, including Sam Leal (“Leal”).
      In February 2005, John Carroll (“Carroll”), a customer of Balderas and
Jose, moved to Florida and began distributing meth in Miami. Drugs were
supplied to Carroll by Balderas, who was receiving at least some of his drugs
from Jose and Rene. Balderas reportedly traveled to Miami to check on the
meth distribution business on two occasions, once with Leal.
      In mid-2005, the Zavala Residence was burglarized, and money and drugs
were taken.     Jose and Rene suspected that Leal and Jacinto Martinez
(“Martinez”) were responsible for the burglary. Leal and Martinez subsequently


                                        2
                                 No. 07-40469

made an agreement with “Tino,” one of Jose and Rene’s suppliers, that if Leal
and Martinez worked to pay off the loss, they could purchase meth directly from
Tino instead of going through Jose and Rene. Thereafter, Leal and Martinez
used Tino as a direct supply source in the Tyler area.
      Also in mid-2005, Paul Fazande (“Fazande”) met with Balderas, Leal, and
Martinez at Balderas’s house to discuss Fazande moving to Shreveport to further
develop the meth distribution enterprise. Balderas, Leal, and several others
began delivering meth to Fazande in Shreveport for resale. Fazande testified
that approximately $60,000 a week was returned to Balderas and Leal in Tyler
from the sale of the meth in Shreveport.
      Fazande was arrested in Shreveport in the fall of 2005. During the course
of that arrest, police found 343 grams of meth, drug ledgers, and scales.
Additionally, the police learned that Balderas had picked up $10,000 from
Fazande in Shreveport the morning before his arrest, and Balderas’s mother and
father had picked up $11,500 from Fazande on the day of his arrest.
      Fazande’s girlfriend, Ashley Bonner (“Bonner”) was arrested with Fazande
but was released. Balderas subsequently called Bonner and inquired about
Fazande’s arrest. As Bonner had knowledge of Fazande’s customers, Balderas
proposed that she take over Fazande’s meth distribution in Shreveport. Bonner
then began selling meth in Shreveport and, on at least one occasion,
accompanied Balderas to pick up meth from Martinez. Bonner also accompanied
Balderas to pick up meth from Jose.
      Cale Cassidy (“Cassidy”) purchased meth from Rene, Jose, and Balderas
in January and February of 2006. On January 7, 2006, Cassidy traveled to
Dallas with Rene to purchase one pound of meth from “Mario.” Jose and Rene
distributed part of this meth to Drew Burkhart (“Burkhart”), who had met
Balderas through Jose. Burkhart was also introduced to Leal and Martinez by
Jose, after which Burkhart bought meth from them. On January 24, 2006,


                                       3
                                        No. 07-40469

Cassidy purchased about one ounce of meth and received a .22 caliber rifle from
Jose. On February 3, 2006, Cassidy again went to Dallas with Rene.
       In March 2006, a federal grand jury indicted Jose, Rene, and Balderas, as
well as several other co-conspirators. In November 2006, a jury returned guilty
verdicts against all three Appellants. Jose and Balderas were sentenced to 1,822
months in prison. Rene was sentenced to 1,788 months.
                                       II. ANALYSIS
A. Sufficiency of the Evidence
       1. Standard of Review
       As Appellants’ motion for a judgment of acquittal was denied, we review
that denial de novo.1 “In doing so, we consider the evidence, all reasonable
inferences drawn from it and all credibility determinations in the light most
favorable to the Government, and affirm if a reasonable jury could find the
offense’s essential elements beyond a reasonable doubt.”2
       2. Drug Conspiracy Charge
       “To find a defendant guilty of participating in a drug conspiracy, the
government must show (1) there was an agreement between two or more persons
to possess controlled substances with the intent to distribute; (2) the defendant
knew of the conspiracy and intended to join it; and (3) the defendant voluntarily
participated in the conspiracy.”3 The government may prove a conspiracy by
circumstantial evidence alone;4 however, we have repeatedly “stressed that we




       1
           United States v. Medina, 161 F.3d 867, 872 (5th Cir. 1998).
       2
           Id.
       3
        United States v. Parker, 505 F.3d 323, 331 (5th Cir. 2007) (internal quotation marks
omitted).
       4
           Medina, 161 F.3d at 872.

                                               4
                                       No. 07-40469

will not lightly infer a defendant’s knowledge of and participation in a
conspiracy.”5
      Our review of the record convinces us that the government presented
sufficient evidence for a rational jury to conclude that Balderas, Jose, and Rene
conspired among themselves and with others to distribute drugs in Texas,
Louisiana, and Florida. At trial, several witnesses testified that Jose and Rene
supplied Balderas with large amounts of meth over an extended period of time.
Although an isolated buyer-seller relationship alone does not constitute a
conspiracy to distribute drugs, we have recognized that “[a] pattern of sales for
resale between the same persons, together with details supplying a context for
the relationship, might well support a finding of conspiracy.”6                 Balderas
frequently brought clients to the Zavala Residence when he purchased meth
from Jose and Rene, and Appellants shared many of the same clients.
Appellants were recorded discussing their meth business, including collection
methods and other members of the conspiracy. A rational jury could have
concluded from the evidence that Jose, Rene, and Balderas conspired with each
other to distribute meth.
      Jose and Rene contend that even if they did conspire with Balderas, they
were not part of Balderas’s conspiracy to distribute drugs in Louisiana and
Florida. Although the government did not present direct evidence linking Rene
and Jose to the conspiracy in Florida and Louisiana, we are satisfied that the
government presented sufficient circumstantial evidence for the jury to infer
that Jose and Rene were part of the overall conspiracy to distribute drugs. Trial
testimony linked Jose and Rene to Balderas at the time that Balderas was
orchestrating the meth distribution network in Louisiana and Florida.


      5
        United States v. Dean, 59 F.3d 1479, 1485 (5th Cir. 1995) (internal quotation marks
omitted).
      6
          United States v. Moran, 984 F.2d 1299, 1303 (5th Cir. 1993).

                                              5
                                         No. 07-40469

Fazande’s girlfriend, Bonner, went with Balderas to pick up meth from Jose
subsequent to the time when the Zavalas claim that they had stopped serving
as Balderas’s supplier. All Appellants were transacting business with Cassidy
in early 2006. The jury could have inferred from this evidence that Jose and
Rene continued to serve a source of supply for Balderas and that they were part
of Balderas’s drug distribution network. We hold that the evidence is sufficient
to support the jury’s verdict.
       3. Possession of a Firearm in Furtherance of a Drug Trafficking Crime
       18 U.S.C. § 924(c)(1)(A) states that “any person who, during and in
relation to any crime of violence or drug trafficking crime . . . uses or carries a
firearm, or who, in furtherance of any such crime, possesses a firearm” shall be
sentenced to an additional term of imprisonment. Nevertheless, the “‘mere
presence’ of a firearm at the scene of drug activity does not” itself equal
possession in furtherance of the activity.7              The government must present
“‘evidence more specific to the criminal defendant, showing that his or her
possession actually furthered the drug trafficking offense.’”8 To determine
whether a defendant possessed the gun in furtherance of drug trafficking, we
consider several factors including: “(1) the type of drug activity being conducted;
(2) the accessibility of the firearm; (3) the type of weapon; (4) whether the
weapon is stolen; (5) whether the possession is lawful; (6) whether the gun is
loaded; (7) the weapon’s proximity to drugs or drug profits; and (8) the time and
circumstances under which the gun is found.”9 Overall, the possession must
further, advance, or help forward the underlying offense.10

       7
           United States v. Charles, 469 F.3d 402, 406 (5th Cir. 2006).
       8
        Id. (emphasis added) (quoting United States v. Ceballos-Torres, 218 F.3d 409, 414 (5th
Cir. 2000)).
       9
           Id.
       10
            Ceballos-Torres, 218 F.3d at 415.

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                                         No. 07-40469

                i. Counts 9, 11, and 13
       On September 8, 2005, CI Donna Taylor (“Taylor”) purchased an ounce of
meth from Balderas. While at his residence, she observed a firearm on the coffee
table next to the drugs. According to Taylor, Balderas always did business with
a gun present, and he referred to it as his “baby.” Taylor stated that she never
saw Balderas conduct a drug transaction without his gun being present. This
evidence is sufficient for the jury to infer that Balderas was using the gun for
security in furtherance of his drug transactions.
       Jose and Rene insist that they cannot be held accountable for Balderas’s
possession of the firearm because such possession was not reasonably
foreseeable. Under Pinkerton v. United States,11 “[a] party to a conspiracy may
be held responsible for a substantive offense committed by a coconspirator in
furtherance of a conspiracy, even if that party does not participate in or have any
knowledge of the substantive offense.”12 For a defendant to be convicted of the
substantive offenses of a coconspirator under Pinkerton, the act must have been
reasonably foreseeable to the defendant.13
       We have consistently held that, under Pinkerton, it is foreseeable that a
drug defendant’s co-conspirator will carry a firearm during a drug transaction
when a substantial quantity of drugs is involved.14 Although Balderas sold only
one ounce of meth to Taylor, she testified that she observed at least a pound of
meth during the transaction. The large amount of meth present at the time of
the sale makes it foreseeable that Balderas would conduct the sale of drugs with



       11
            328 U.S. 640 (1946).
       12
          United States v. Jensen, 41 F.3d 946, 955-56 (5th Cir. 1994) (alteration in original)
(internal quotation marks omitted).
       13
            United States v. Dean, 59 F.3d 1479, 1489 (5th Cir. 1995).
       14
             Id. at 1490 n.20.

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                                  No. 07-40469

a firearm. The conviction of each Appellant on Count Nine of the indictment is
supported by sufficient evidence.
       Counts Eleven and Thirteen of the indictment relate to Balderas’s sales
of meth to Taylor on September 9, 2005 and September 20, 2005, respectively,
under essentially identical circumstances as the September 8 sale.            The
government presented sufficient evidence to support Appellants’ convictions on
these two additional counts of the indictment.
             ii. Count 14
       On September 21, 2005, Taylor again visited Balderas’s residence. Taylor
testified that during the visit, she purchased a rifle for the purpose of shooting
coyotes on her farm. She testified that the purchase price for the rifle had been
negotiated on the previous day while she was at Balderas’s house to purchase
meth. Taylor did not buy any meth from Balderas on the day that she bought
the rifle.
       Appellants contend that the government failed to prove that Balderas’s
possession of the rifle was in furtherance of Count One of the indictment,
conspiracy to distribute, because Taylor was buying the gun of a type not
typically related to drug transactions for a purpose unrelated to drugs, and no
meth sale or overt act of the conspiracy occurred during or in proximate to the
sale of the gun. We agree.
       Unlike Counts Nine, Eleven, and Thirteen of the indictment, no sale of
meth took place while Balderas was selling the rifle sold to Taylor. The only
evidence presented by the government to support the allegation that Balderas
was selling the rifle in furtherance of the drug conspiracy is that Taylor observed
(1) drugs at Balderas’s residence and (2) between $50,000 and $100,000 in cash,
which was allegedly there for the purpose of buying meth at a later time. This
evidence is insufficient to support an inference that this particular rifle
“furthered, advanced, or helped forward” the drug conspiracy. Accordingly, we


                                        8
                                       No. 07-40469

hold that this conviction is not supported by sufficient evidence and must be
vacated.
               iii. Count 17
      On January 19, 2006, Toribia Gloria Medina (“Medina”) and Manuel
Escobar (“Escobar”) were arrested by law enforcement agents at the Comfort
Suites located at 3307 North Fourth Street in Longview, Texas. During the
arrest, law enforcement agents seized ten ounces of meth. After the arrest,
Medina’s house in Tyler, Texas was searched, and law enforcement agents seized
two sets of scales, meth paraphernalia, and an SKS assault rifle.
      Appellants assert that the evidence is insufficient to prove that the rifle
confiscated from Medina’s residence was possessed in furtherance of the drug
trafficking charge because the only evidence in the record is that the firearm was
found at the same location as the drugs. Once again, we agree.
      The record in this case lacks specific evidence connecting the weapon to
the drug activity. There is no reference to the proximity of the gun to the drugs,
the accessibility of the gun, whether the gun was loaded, whether it was lawfully
obtained, or whether ammunition was present in the house. As previously
noted, not every weapon found at the location of a drug sale may be considered
to be possessed “in furtherance” of a drug crime.15 In the absence of additional
evidence, we cannot conclude that the mere presence of the weapon at Medina’s
home is sufficient to prove that it was possessed in furtherance of the drug
trafficking crime.
               iv. Count 19
      On January 24, 2006, Cassidy purchased meth from Jose while at the
Zavala Residence.         Cassidy indicated that he also wanted to purchase a
handgun. Jose stated that he would not sell a handgun to Cassidy, but he



      15
           Charles, 469 F.3d at 406.

                                            9
                                  No. 07-40469

offered to give him a rifle without charge. Shortly thereafter, Jose retrieved the
gun, a .22 caliber rifle that was inside a carrying case, from a closet in an
adjacent room and gave it to Cassidy.
      Appellants insist that there is insufficient evidence to prove that the Jose
possessed this rifle in furtherance of the drug transaction. The indictment was
based on Jose’s possession of the .22 caliber rifle, not the handgun that Cassidy
attempted to purchase. Appellants contend that there is no evidence that the
rifle was loaded, stolen, or stored in close proximity to drugs or money.
Additionally, they assert that Jose could not have been using the gun to further
the drug trafficking offense because he did not know what type of gun it was,
and he indicated that he had no need for it.
      Based on the facts in the record, we agree with Appellants that the
government failed to produce sufficient evidence to prove that Jose possessed the
gun in furtherance of the drug activity. The rifle was not stored in the same
location as the meth; there is no evidence that the gun was loaded or that it was
stolen; a .22 caliber rifle is not typical of guns used or possessed in connection
with drug transactions; Jose stated that he did not know what type of gun it
was; and he gave the gun to Cassidy free of charge, indicating that he had no
need or use for the gun.




      4. Possession with Intent to Distribute
            i. Counts 2, 3, 5, 8, 10, 12, 18 and 20
      These counts of the indictment relate to Balderas and Jose’s possession
and sale of meth to various CIs. Appellants contend that the government failed
to present sufficient evidence from which the jury could infer Pinkerton co-



                                        10
                                        No. 07-40469

conspirator liability for these transactions because the individual meth sales
were not reasonably foreseeable. We disagree.
      Our review of the record demonstrates that the government presented
sufficient evidence for the jury to conclude that Appellants conspired together
to distribute meth throughout Texas, Louisiana, and Florida. As members of the
conspiracy, Balderas and Jose’s sales of meth related in Counts Two, Three,
Five, Eight, Ten, Twelve, Eighteen, and Twenty of the indictment were
reasonably foreseeable. Under Pinkerton, there is sufficient evidence to support
Appellants’ convictions under these counts.
               ii. Counts 4, 7, 16, and 25
      These counts of the indictment relate to sales of meth by co-conspirators
Mark Anthony Gomez (“Gomez”), Fazande, Medina, Escobar, and David Branch
(“Branch”) to various CIs. Rene and Jose assert that there is insufficient
evidence to support their convictions because several of the co-conspirators
testified that these co-conspirators did not work directly with either Rene or
Jose. Our review of the record reveals, however, that the government presented
sufficient testimony at trial from which the jury could have concluded that
Gomez, Fazande, Medina, Escobar, and Branch were all members of the
conspiracy and that their participation was reasonably foreseeable by
Appellants. The Appellants’ argument regarding these counts is without merit.
B. Buyer-Seller Jury Instruction
      Appellants contend that the district court erred in refusing to instruct the
jury that evidence of a mere buyer-seller relationship is insufficient to support
a conviction for conspiracy.          This argument is foreclosed by Fifth Circuit
precedent;16 however, Appellants raise this issue on appeal to preserve it for
further review.



      16
           See United States v. Mata, 491 F.3d 237, 241-42 (5th Cir. 2007).

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                                        No. 07-40469

C. Sentencing Issues
      1. Consecutive Sentences under 18 U.S.C. § 924(c)
                 i. Standard of Review
      We review questions of statutory interpretation de novo.17
                 ii. Merits
      Appellants contend that the district court erred in sentencing them for
multiple violations of § 924(c)(1). They argue that Balderas’s possession of a
firearm, as charged in Counts Nine, Eleven, Thirteen, and Fourteen of the
indictment, was a single, continuous possession and therefore constituted only
one violation of § 924(c). In support of this contention, Appellants rely on our
decision in United States v. Phipps.18
      In Phipps, we held that § 924(c)(1) does not authorize multiple convictions
for a single use of a firearm based on multiple predicate offenses.19       The
defendants in Phipps were convicted of two counts of violating § 924(c)(1), one
for the predicate offense of kidnaping and another for car jacking.20        We
determined that the language of § 924(c)(1) allowed the court to impose only one
conviction for every “use” of the firearm, then held that the defendants “used”
the firearm only once — when one defendant threatened the victim with the
firearm during the kidnaping.21 In doing so, we noted that even though the
single “use” of the gun allowed the defendants to commit two crimes, kidnaping




      17
           United States v. Phipps, 319 F.3d 177, 183 (5th Cir. 2003).
      18
           Id.
      19
           Id.
      20
           Id. at 181.
      21
           Id. at 186-87.

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                                  No. 07-40469

and car jacking, there could be only one conviction under § 924(c) because there
was only one use.22
      Unlike the situation in Phipps, Balderas “used” the firearm on more than
one occasion. The three separate drug transactions underlying counts 9, 11, and
13 occurred on different days. Taylor returned each day to make a new purchase
of meth and thus to commit a new crime. During each visit, Balderas “used” the
weapon to further his commission of a separate and distinct crime of drug
trafficking.     Under these circumstances, the district court did not err by
sentencing the defendants for multiple violations of § 924(c).
      2. Eighth Amendment Claim
      Rene and Jose insist that their prison sentences of more than one hundred
years each for the conduct of co-conspirators violate the Eighth Amendment. As
we reverse Rene and Jose’s convictions on three of the counts charged in the
indictment, we must vacate their entire sentences and remand for resentencing
on only those convictions that we affirm today. Whatever sentences are imposed
on remand, they are virtually certain to differ from the original sentences. This
makes the Eighth Amendment challenges moot, at least for the time being, so
we do not address them today.
                               III. CONCLUSION
      We affirm the Appellants’ convictions on all counts other than Counts
Fourteen, Seventeen, and Nineteen of the indictment. We reverse Appellants’
convictions under Counts Fourteen, Seventeen, and Nineteen, and we remand
this case for resentencing for the affirmed convictions, in accordance with this
opinion.
AFFIRMED in part, REVERSED in part, and REMANDED for resentencing.




      22
           Id.

                                       13
