                         Revised August 6, 2002

              IN THE UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT


                                No. 99-41490



UNITED STATES OF AMERICA,

                                               Plaintiff-Appellee,

                                   versus

JOSE CLEOTIDE SOLIS, also known as Little Cocho; ECLISERIO MARTINEZ
GARCIA; SALVADOR PINEDA CONTRERAS, also known as Chino; FRANCISCO
FAVELA, also known as Jr, also known as Big Jr, also known as
Dreamer; ALFONZO MEZA; ARTURO MEZA, also known as Jr; HILARIO
MERLAN SOLIS, also known as Cocho; AURELIO MENDEZ; JOSE ALBERTO
MEZA, also known as Beefy,

                                               Defendants-Appellants.


           Appeal from the United States District Court
                 For the Eastern District of Texas


                                 July 18, 2002



Before KING, Chief Judge, and HIGGINBOTHAM and DAVIS, Circuit
Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

     This appeal arises from a 36-count indictment of 29 defendants

for conspiracy to distribute heroin and cocaine in Plano, Texas and

individual violations of 21 U.S.C. § 841(a)(1).        Eleven defendants

went to   trial,   ten   were   convicted   of   conspiracy   and   various

individual drug offenses, and nine—Jose Cleotide Solis, Ecliserio
Martinez Garcia,     Salvador    Pineda   Contreras,   Francisco     Favela,

Alfonzo Meza, Arturo Meza, Hilario Merlan Solis, Aurelio Mendez,

and Jose Alberto Meza—now appeal their convictions and sentences.

                          I. Factual background

     In September 1997, a concerted effort by local and federal law

enforcement agencies to apprehend heroin traffickers in Plano,

Texas led to the formation of the Plano Heroin Task Force.               The

government’s investigation determined that in late 1996 Aurelio

Mendez and Ecliserio Martinez Garcia were part of a conspiracy to

import heroin from Guerrero, Mexico, where it was manufactured, to

North Texas.   Mendez and Garcia sold the heroin to Hilario Merlan

Solis.   Hilario’s brother Jose Cleotide Solis then distributed the

heroin until he was arrested on July 9, 1997.

     Among Hilario’s customers was Alfonzo Meza.            Alfonzo lived at

1120 Avenue I in Plano, which became known as the “blue house,”

with his brother Jose Alberto Meza and several friends including

Francisco Favela and Santiago Mejia. These individuals, along with

Alfonzo’s and Jose’s brother Arturo Meza, sold heroin from the blue

house.

Search of Alfonzo Meza’s house on May 14, 1997

     On May 14, 1997, officers arrived at the blue house holding an

arrest   warrant   for    Jose   Meza.    At   the   same   time,   building

inspectors accompanied by two other Plano Police officers arrived

at the blue house.       The inspectors intended to condemn the house


                                     2
for housing code violations.    After the officers with the warrant

searched the house for Jose and found that he was not present, a

police officer approached Alfonzo Meza outside the house and asked

if there were any weapons inside.     Alfonzo replied that there was

a .45-caliber pistol on a shelf in his bedroom and consented to the

officer’s retrieving the gun.   However, when the officer could not

reach the gun without assistance, an accompanying officer moved a

cooler from across the room for the officer to stand on.   On moving

the cooler, the accompanying officer noticed a baggie containing

what appeared to be heroin capsules. After retrieving the gun, the

officers re-approached Alfonzo and received consent to search the

entire house. The blue house was thereafter condemned.

Aftermath of the search and condemnation of Alfonzo Meza’s house

     After the blue house was condemned, Mejia, Favela and others

sold heroin and cocaine from hotel rooms, using Jose Solis as their

source until Jose’s arrest in July 1997.         Hilario Solis then

introduced Salvador Contreras Pineda as the source for these

individuals’ drugs.

State court convictions of Favela and Alfonzo Meza

     On September 18, 1997, Favela was arrested in a hotel room

with cocaine and heroin.   He pled guilty to possession with intent

to deliver more than 4 grams but less than 200 grams of heroin,

possession of less than 1 gram or heroin, possession with intent to

deliver more than 4 grams but less than 200 grams of cocaine, and


                                  3
possession of less than 1 gram of cocaine in Texas state court and

was sentenced to 20 years imprisonment.

     Alfonzo Meza was likewise convicted on April 6, 1998 in Texas

state court of two counts of delivery of cocaine, one count of

possession   with   intent   to     deliver    cocaine,     and    one   count    of

possession with intent to deliver heroin.                  He was sentenced to

concurrent 15-year terms on each of the four counts.

Search of Salvador Pineda’s house on November 23, 1997

     Pineda lived in a house at 211 Walnut Street in McKinney,

Texas, with his wife and Garcia and Garcia’s wife.                On November 23,

1997, Pineda and Garcia were arrested away from their house.

Police officers then arrived at 211 Walnut Street and obtained

consent   from   Pineda’s    wife    to    search    the    residence    and     the

outbuildings behind the house.

Convictions of Salvador Pineda and Ecliserio Martinez Garcia

     Pineda pled guilty on March 3, 1998 to possession with intent

to distribute heroin and, on June 25, 1998, was sentenced to a term

of imprisonment of 125 months.             Garcia pled guilty on March 13,

1998 pursuant to a written plea agreement with the government and

was sentenced to a term of imprisonment of 120 months.

Statement of Jose Meza on March 26, 1998            Jose Meza was arrested on

March 26, 1998 and promptly gave a videotaped confession to the

police.




                                       4
Indictment in the present case

       On June 24, 1998, the Federal Grand Jury for the Eastern

District of Texas returned a 36-count indictment charging 29

defendants.      Count 1 charges a conspiracy from an unknown date

until December 1997 to distribute heroin and cocaine in violation

of 21 U.S.C. § 846.     Counts 2-7, 9, 12-16, and 18-28 charge various

defendants with distribution of or possession with intent to

distribute heroin or cocaine or both in violation of 21 U.S.C. §

841(a)(1).      Counts 6, 9, 12, 16, and 27 also charge that a user of

the drugs died or suffered serious bodily injury from the use of

the drugs.

       Thereafter, Mendez was arrested on July 22, 1998, and his

house was searched.      The following day, the co-conspirators named

in the indictment who were not already in custody were arrested in

a multi-agency drug sweep.

Course of proceedings in the district court

       On December 17, 1998, the district court denied, inter alia,

Pineda’s and Alfonzo Meza’s motions to suppress evidence seized

from    their    residences;   Jose   Meza’s   motion   to   suppress   his

videotaped confession; Garcia’s, Jose Meza’s, Alfonzo Meza’s, and

Favela’s motions to dismiss the indictment; and Mendez’s motion to

sever.   The district court allowed each defendant to join in other

defendants’ motions and objections without an additional filing.




                                      5
     The defendants also filed motions to strike surplusage in the

indictment, specifically any reference to heroin deaths or injuries

set forth in Counts 6, 9, 12, 16, and 27 and Count 1's Overt Acts

7, 10, 13, and 34.        They also requested that the district court

limit the government’s proof at trial to evidence of possession,

distribution, and manufacture of controlled substances and other

statutory violations.         The district court granted these requests

and struck the language from the indictment.

     Trial began on February 3, 1999.               The district court denied

motions for acquittal by Jose Solis, Garcia, Pineda, Favela,

Alfonzo Meza, Arturo Meza, Hilario Solis, Mendez, and Jose Meza on

February 22,     and,    on   February       25,   the   following   verdict   was

returned:

    Jose Solis          guilty on Count 1-3, 6-7
      Garcia            guilty on Counts 1, 6, 9, 12, 14-15, 18-28
      Pineda            guilty on Counts 1, 6, 9, 12, 14-15, 18-25,
                        27-28
      Favela            guilty on Counts 1, 4-5, 13
   Alfonzo Meza         guilty on Counts 1-6, 12, 27
                        acquitted on Count 9
   Arturo Meza          guilty on Counts 1, 4-6, 9, 12, 27
  Hilario Solis         guilty on Counts 1, 6, 9, 12
      Mendez            guilty on Counts 1, 6, 9, 12, 27
    Jose Meza           guilty on Counts 1, 4-5, 12, 27
                        acquitted on Counts 6, 9

     On December 7-8, 1999, the district court held a hearing on

the causes of death and serious bodily injury as a result of the

                                         6
use of heroin and cocaine distributed by the defendants and on the

applicability of U.S.S.G. § 2D1.1(a)(2).    The government presented

testimony from medical examiners as to the causes of death of the

individuals the government alleged died as a result of the sale of

drugs charged in Counts 6, 9, 12, and 27.   The district court found

by a preponderance of the evidence that heroin caused the deaths of

three of the individuals—Milan Malina (Count 6), George Wesley

Scott (Count 9), and Rob Hill (Count 12)—and that heroin and

cocaine together caused the death of Erin Baker (Count 27) and the

serious bodily injury to Daniel Mierek (Count 16).

     On December 8, 1999, the district court imposed the following

sentences on Garcia, Pineda, Favela, and Mendez:

      Garcia       life imprisonment on Counts 1, 6, 9, 12, 27
                   480 months on Counts 26, 28
                   240 months on Counts 14-15, 18-25
      Pineda       life on Counts 1, 6, 9, 12, 27
                   480 months on Count 28
                   240 months on Counts 14-15, 18-25
      Favela       140 months on Counts 1, 4, 5, 13
      Mendez       life on Counts 1, 6, 9, 12, 27

On December 9, 1999, the district court imposed the following

sentences on Jose Solis, Alfonzo Meza, Arturo Meza, Hilario Solis,

and Jose Meza:

    Jose Solis     240 months on Counts 1-3, 6-7
   Alfonzo Meza    360 months on Counts 1, 6, 12, 27
                   240 months on counts 2-5
   Arturo Meza     360 months on Counts 1, 6, 9, 12, 27
                   240 months on Counts 4-5

                                7
  Hilario Solis         400 months on Counts 1, 6, 9, 12
    Jose Meza           360 months on Counts 1, 12, 27
                        240 months on Counts 4-5

The district court ordered each defendant’s sentences to run

concurrently.

     All nine defendants have timely appealed their convictions and

sentences.     We address the defendants' challenges in turn.

             II. Challenges to the defendants’ convictions

A. Motions to dismiss on grounds of double jeopardy and violation

of plea agreement

                                       1.

     Garcia argues that the district court erred in denying his

motion to dismiss on grounds that the prosecution violated his plea

agreement in an earlier case.          He claims that his earlier guilty

plea barred this prosecution because the government agreed not to

charge him for acts which he committed prior to the date of the

plea agreement and which he disclosed to the government, provided

they were not crimes of violence or violations of Title 26 of the

United States Code.

     We     review   de   novo   the   legal    question    of   whether   the

government’s conduct violates the terms of the plea agreement,1 but

Garcia bears the burden of proving the facts establishing a breach

of the agreement—specifically, paragraph 9 providing that the



     1
          United States v. Valencia, 985 F.2d 758, 760 (5th Cir. 1993).

                                       8
government     agrees    “[n]ot      to   charge    Defendant    with   any   other

criminal violations concerning activities committed prior to the

date of this agreement which the Defendant makes known to the

United States and which did not involve crimes of violence or Title

26   offenses”—by       a    preponderance         of     the   evidence.2       The

uncontroverted evidence offered at the hearing on Garcia’s motion

established that Garcia did not disclose the crimes for which he is

charged within the instant indictment.                  Garcia did not prove that

the government breached paragraph 9 of his plea agreement by

indicting     Garcia    in   cause    number   4:98-CR-47.         We   affirm   the

district court’s denial of Garcia’s motion to dismiss on these

grounds.

                                          2.

      Pineda argues that the district court erred in denying his

motions to dismiss the indictment on double jeopardy grounds

because his indictment in an earlier case barred this prosecution

for possession with intent to distribute heroin.3

      “[W]hether a prosecution violates the Double Jeopardy Clause

of the Fifth Amendment is a question of law and is reviewed de

novo,” but the district court’s factual findings are reviewed only


      2
          United States v. Saling, 205 F.3d 764, 766 (5th Cir. 2000).
      3
        Garcia raised a similar argument before the district court, which he has
not renewed on appeal, although he has generally moved to adopt his co-
defendants’ argument pursuant to Federal Rule of Appellate Procedure 28(i). He
may not, however, adopt Pineda’s argument on appeal because it is necessarily
fact-specific. See United States v. Baptiste, 264 F.3d 578, 586 n.6 (5th Cir.
2001) (“FRAP 28(i) permits appellants to do so for challenges that are not
fact-specific as to a particular defendant.”).

                                           9
for clear error.4         Pineda’s challenge to the indictment fails.

Pineda may be charged with conduct in a conspiracy count, as overt

acts, in the instant indictment (4:98-CR-47) for criminal conduct

of   which   he   has    previously     been   convicted     under   a   different

indictment (4:98-CR-3) under 21 U.S.C. § 841(a)(1).5                 Even to the

extent conduct charged in Counts 1, 19-21, 23-25, and 28 of the

instant indictment was used as relevant conduct in sentencing

Pineda in cause number 4:98-CR-3, there is no violation of the

Double Jeopardy Clause in the indictment for this conduct in the

instant cause.      Moreover, the sentences imposed on Pineda in the

two cases run concurrently.6

      “Collateral estoppel completely bars a subsequent prosecution

only when a fact ‘necessarily determined’ in the first prosecution

is an essential element of the offense charged in the subsequent

prosecution.”7          The   facts   necessary   to   the    determination    of

Pineda’s guilt for possession with intent to distribute heroin in

cause number 4:98-CR-3 are not essential elements of the conspiracy

charge in Count 1 of the instant indictment, even if alleged




      4
          United States v. Delgado, 256 F.3d 264, 270 (5th Cir. 2001).

      5
        See United States v. Brackett, 113 F.3d 1396, 1400 n.6 (5th Cir. 1997);
United States v. Deshaw, 974 F.2d 667, 676 (5th Cir. 1992); United States v.
Marden, 872 F.2d 123, 125 (5th Cir. 1989).
      6
          See United States v. Wittie, 25 F.3d 250, 254-61 (5th Cir. 1994).
      7
          Brackett, 113 F.3d at 1399.

                                         10
therein as overt acts.8       The court did not err in denying Pineda’s

motion to dismiss.

                                      3.

      Favela argues that the district court erred in denying his

motion to dismiss Counts 1, 4, 5, and 13 of the indictment on

double jeopardy grounds.          He argues that he pled guilty in an

earlier prosecution in state court to the exact transactions listed

in Overt Acts 5, 6, and 16 in Count 1 of the instant indictment and

that his prior conviction in state court is for the same alleged

criminal conduct listed in Counts 1, 4, 5, and 13, all requiring

the same elements, except for the conspiracy charge in Count 1.

Favela argues that his claim is excepted from the dual sovereignty

doctrine because of the comprehensive interaction between the state

and federal agencies involved in his arrest.9

      It is well-established that, “[u]nder the dual sovereignty

doctrine, successive prosecutions by separate sovereigns for crimes

arising out of the same acts are not barred by the Double Jeopardy

Clause,” unless “‘prosecution by one sovereign is used as a tool

for successive prosecution by another sovereign.’”10                  However,



      8
          Cf. id. at 1399-1400.
      9
         Alfonzo Meza raised the same argument before the district court, which
he has not renewed on appeal, although he has generally moved to adopt his co-
defendants’ argument pursuant to Rule 28(i). He may not, however, adopt Favela’s
argument on appeal because it is necessarily fact-specific. See Baptiste, 264
F.3d at 586 n.6.
      10
         United States v. Johnson, 91 F.3d 695, 697 (5th Cir. 1996) (quoting
United States v. Lanza, 260 U.S. 377, 382 (1922)).

                                      11
“[w]hen a defendant claims collusion between federal and state law

enforcement officials, the defendant has the burden of producing

evidence to show a prima facie double jeopardy claim.”11                   The

district court’s determination of whether the defendant has come

forward with evidence to show a prima facie case of “collusion

between the federal and state government” is a factual finding we

review only for clear error.12

      Favela’s double jeopardy claim is without merit.              Under the

dual sovereignty doctrine, there is no double jeopardy violation in

any overlap that may exist between Favela’s state court drug

convictions and substantive counts or overt acts charged in the

instant indictment.       Favela has not established any clear error in

the district court’s finding that there was no collusion between

the   federal     and   state    prosecutors     in   this   case   or,   more

specifically, that there was no evidence that the state prosecution

of Favela was merely a tool of the federal authorities.                    The

district court did not err in denying Favela’s motion to dismiss.

B. Motions to suppress the fruits of consent searches

      In reviewing the denial of the defendant’s motion to suppress,

we review the district court’s factual findings, including its

credibility choices, for clear error and its legal conclusions de




      11
           United States v. McKinney, 53 F.3d 664, 676 (5th Cir. 1995).
      12
           Id.

                                       12
novo.13     “We view the evidence in the light most favorable to the

party that prevailed in the district court,” here the government.14

      A search conducted pursuant to consent is excepted from the

Fourth Amendment’s warrant and probable cause requirements.15                 “In

order      to    satisfy   the   consent    exception,   the   government   must

establish that consent to search was freely and voluntarily given

and that the individual who gave consent had authority to do so”

and “must prove by a preponderance of the evidence that consent was

voluntary and effective.”16          Additionally, “the government has the

burden of proving that the search was conducted within the scope of

the consent received.”17

      Consent need not be given by the defendant himself.                 “In the

context of searches, it is well established that the police may

conduct a warrantless search of an area without running afoul of

the Fourth Amendment if a third party with common control over the

area consents to the search.”18

      “The voluntariness of consent is a question of fact to be

determined from a totality of the circumstances,” and we review the


      13
           United States v. Hunt, 253 F.3d 227, 229-30 (5th Cir. 2001).
      14
           Id. at 230.

      15
           United States v. Gonzales, 121 F.3d 928, 938 (5th Cir. 1997).

      16
           Id.

      17
           United States v. Wilson, 36 F.3d 1298, 1304 (5th Cir. 1994).
      18
         United States v. Hernandez-Zuniga, 215 F.3d 483, 487 (5th Cir.), cert.
denied, 531 U.S. 1038 (2000).

                                           13
district         court’s      finding    of   voluntariness     for    clear   error.19

“‘Where the judge bases a finding of consent on the oral testimony

at   a        suppression     hearing,    the      clearly   erroneous   standard   is

particularly strong since the judge had the opportunity to observe

the demeanor of the witnesses.’”20 This court considers six factors

in evaluating the voluntariness of consent to search, all of which

are relevant, but no one of which is dispositive or controlling.21

The consent, however, may not be given “simply in acquiescence to

a claim of lawful authority.”22

                                              1.

         Pineda argues that the district court erred in denying his

motion to suppress the evidence found in the warrantless search of

his house and the outbuildings behind his house on November 23,

1997, based on the allegedly invalid consent obtained from Pineda’s

wife.

         Pineda       first     contends      that     his    wife’s     consent    was

involuntarily given. The district court, after hearing conflicting



         19
               United States v. Cooper, 43 F.3d 140, 144 (5th Cir. 1995).

      20
         United States v. Kelley, 981 F.2d 1464, 1470 (5th Cir. 1993) (quoting
United States v. Sutton, 850 F.2d 1083, 1086 (5th Cir. 1988)).

         21
         Id. (“In evaluating the voluntariness of consent, we have considered
six factors: ‘(1) the voluntariness of the defendant’s custodial status; (2) the
presence of coercive police procedures; (3) the extent and level of the
defendant’s cooperation with the police; (4) the defendant’s awareness of his
right to refuse to consent; (5) the defendant’s education and intelligence; and
(6) the defendant’s belief that no incriminating evidence will be found.’”
(quoting United States v. Olivier-Becerril, 861 F.2d 424, 426 (5th Cir. 1988))).
         22
               United States v. Lopez, 911 F.2d 1006, 1010 (5th Cir. 1990).

                                              14
testimony at a suppression hearing, found that: Pineda’s wife was

not placed under arrest prior to, or coerced into, signing the

form; an INS agent explained the form to Pineda’s wife in Spanish

and advised her of her rights to refuse consent and to require a

search warrant; Pineda’s wife was not threatened or promised

anything and    did    not    appear    to   be   distraught;   Pineda’s   wife

cooperated in the search and pointed out heroin in a closet; based

on the court’s observations at the hearing, she was intelligent

enough to know what was being asked of her; and she was aware that

incriminating evidence was at the house because she pointed heroin

out herself.    Viewing the evidence in the light most favorable to

the   government,     and    giving    due   deference   to   the   credibility

determinations of the district court, we conclude that the district

court did not clearly err in its findings and that, under the

totality of the circumstances, the district court did not err in

concluding that Pineda’s wife’s consent was voluntarily given.

      Pineda also argues that the government failed to prove that

his wife had authority to give consent to search the house and the

outbuildings.       He argues that the record does not support the

government’s reliance on her joint access or control over the

residence and outbuildings or that the officers reasonably believed

that she was authorized to consent.           The district court found that

Pineda’s wife has authority to consent to the search of the house

and outbuildings, because she lived there with her husband and

mutually used the property and had joint access to and control over

                                        15
it.   Based upon our review of the record as a whole, we conclude

that the district court’s findings are not clearly erroneous and

that, at the very least, the circumstances surrounding Pineda’s

wife’s giving consent to search are such that reasonable officers

could have believed that she was authorized to consent to a search

of her marital residence.23         Accordingly, we affirm the district

court’s denial of Pineda’s motion to suppress.

                                       2.

      Jose Meza argues that the district court erred in denying a

motion to suppress evidence taken from Alfonzo Meza’s house—the

“blue house”—in a search on May 14, 1997.         We note that Alfonzo

Meza filed the motion to suppress the fruits of this search, not

Jose Meza.      On appeal, the issue of the district court’s alleged

error in denying the motion to suppress the drugs, guns, and other

evidence recovered from the house is specifically raised only by

Jose Meza.       Jose Meza’s argument on appeal may be adopted by

Alfonzo Meza through Rule 28(i), because the facts are not specific

to Jose Meza vis-à-vis Alfonzo Meza and because Alfonzo clearly has

standing to challenge the search of his residence. We conclude, in

any event, that neither defendant is entitled to relief on this

point of error.

      To begin with, contrary to Jose Meza’s contention, the police

did not require probable cause or a warrant to ask Alfonzo Meza



      23
           See Gonzales, 121 F.3d at 938.

                                       16
whether any weapons were located in the house, where there is no

indication that asking him this question amounted to a Fourth

Amendment seizure.24        Nor was probable cause required once the

officers obtained Alfonzo Meza’s consent to seize the gun he

identified as being in his bedroom on a shelf.25

     Jose Meza argues that Alfonzo Meza’s consent to a search for

the gun he identified was not given freely and voluntary.                     In

support of this claim, Jose Meza notes that: seven police officers

were present, constituting a show of force and grounds for assuming

that the search was inevitable; the police officer asked Alfonzo

about weapons only after the officers serving the arrest warrant

for Jose Meza searched the house and did not find Jose; Alfonzo was

never read a Miranda warning before being asked about weapons;

Alfonzo was never advised that he had the right to refuse consent

to search for the gun; and there is no evidence that ownership of

the gun in his house was illegal.

     We note first that many of these observations cut in favor of

a finding of voluntariness.         For example, that Alfonzo was not in

custody and that the police were not required to read him a Miranda

warning.26    Moreover, while “knowledge that incriminating evidence

would be found does not necessarily weigh against a finding of


     24
          See Cooper, 43 F.3d at 145.

     25
          See United States v. Muchaca-Barrera, 261 F.3d 425, 435 n.33 (5th Cir.
2001).
     26
          See United States v. Tompkins, 130 F.3d 117, 122 (5th Cir. 1997).

                                        17
voluntary consent,”27 the absence of an obvious crime in the

ownership of a gun certainly does not render consent involuntary.

Further, we have held consent to be voluntary even in the face of

greater shows of force than the presence here of seven officers,

some in uniform and none with weapons drawn or displaying force

beyond their presence in numbers.28 Furthermore, “[w]hile knowledge

of the right to refuse consent is one factor in determining

voluntariness, the failure to advise an individual of the right to

withhold consent is not determinative in and of itself.”29

     We also note that, after hearing testimony at the suppression

hearing, the district court found that Alfonzo Meza voluntarily

gave oral consent to search the house for the gun.                      Viewing the

evidence in         the   light    most   favorable    to     the   government,   and

crediting         the   district   court’s      credibility    determinations,     we

conclude that, under the totality of the circumstances, Alfonzo

Meza’s consent to search for the gun in his room was voluntarily

given.

     However, having obtained this consent to search and having

proceeded to the room where Alfonzo indicated the gun was located

on a shelf, an officer accompanying the officer who was given

consent to search for the gun moved a cooler over to the shelf to


     27
            Id.

     28
            See Gonzales, 121 F.3d at 939.

     29
            United States v. Galberth, 846 F.2d 983, 988 (5th Cir. 1988) (footnote
omitted).

                                           18
allow the shorter, searching officer to reach the gun.                     Jose Meza

argues that, in so doing, the police exceeded the scope of the

consent to search and violated his Fourth Amendment rights and that

this violation tainted the subsequent consent Alfonzo gave to

search the entire house.30              We disagree.          The uncontroverted

evidence     shows    that    the   cooler    was    moved    only    in   order    to

effectuate      the   search    for    the    gun,    for     which   consent      was

voluntarily given.       As such, the officers did not exceed the scope

of the consent,31 and, as the district court found, the heroin found

under the cooler was in plain view.32

      We    further    conclude       that,   under    the     totality     of     the

circumstances, the subsequent consent to search was voluntarily

given.       The   district    court,    after      hearing    testimony     at    the

suppression hearing, found that: Alfonzo Meza gave written consent

to further search the residence; the consent form informed Alfonzo

of his right to refuse consent; Alfonzo was cooperative and was not

in custody at the time; there were no coercive police procedures

used; and Alfonzo was free to leave and did so.                        Viewing the

evidence in the light most favorable to the government, and giving

due deference to the district court’s credibility determinations,



      30
         See United States v. Vega, 221 F.3d 789, 801-02 (5th Cir. 2000), cert.
denied, 531 U.S. 1155 (2001).

      31
         See United States v. Stewart, 93 F.3d 189, 192 (5th Cir. 1996); United
States v. McSween, 53 F.3d 684, 687 (5th Cir. 1995).
      32
           See United States v. Munoz, 150 F.3d 401, 411 (5th Cir. 1998).

                                         19
we conclude that the district court did not clearly err in its

findings and that the district court correctly concluded that

Alfonzo Meza’s consent was voluntarily given.                    We hold that the

district court did not err in refusing to suppress the fruits of

the search of Alfonzo Meza’s residence.

C. Motion to suppress Jose Meza’s videotaped confession

     Jose Meza argues that the district court erred in denying his

motion     to    suppress,   and     thereafter      admitting,   his   videotaped

confession of March 26, 1998.             He argues that he was intoxicated

when he gave the statement and, as such, despite being given a

Miranda warning, his confession was not the product of his free and

rational choice and he did not freely and voluntarily waive his

constitutional rights to counsel and silence.

     “In reviewing a ruling on a motion to suppress a confession,

we give credence to the credibility choices and fact finding by the

district        court   unless    they   are   clearly   erroneous,”     but   “the

ultimate issue of voluntariness is a legal question reviewed de

novo.”33    Likewise, “a district court’s determination regarding the

validity of a defendant’s waiver of his Miranda rights is a

question of law reviewed de novo, but this court accepts the

factual     conclusions          underlying    the    district     court’s     legal

determination unless they are clearly erroneous.”34


     33
           United States v. Mullin, 178 F.3d 334, 341 (5th Cir. 1999).
     34
           United States v. Garcia Abrego, 141 F.3d 142, 171 (5th Cir. 1998).

                                          20
     We have rejected a challenge similar to Jose Meza’s in United

States v. Garcia Abrego,35 wherein the defendant argued that “that

the drugs that Mexican officials administered to him, coupled with

the solicitousness of U.S. law enforcement officials, rendered his

custodial statement involuntary.”36 There, we concluded that “[t]he

record contains ample evidence from which the district court could

conclude that the drugs that Mexican authorities administered to

Garcia Abrego did not impair his mental capacity” and that “Dr.

Coleman’s testimony that Garcia Abrego did not appear impaired and

evinced none of the symptoms of a Valium overdose, together with

the testimony of the officers who interviewed Garcia Abrego that he

appeared in no way impaired, provided an adequate basis for the

district court’s conclusion that Garcia Abrego’s mental capacity

was not impaired as a result of the drugs that he had been

administered earlier in the day.”37        We further observed that “the

district court was free to accord great weight to the testimony of

those individuals who actually observed Garcia Abrego prior to his

interview with law enforcement authorities.”38

     Similarly, here, Jose Meza presented his own testimony that he

“did some speed” about an hour before being taken into custody and



     35
          141 F.3d 142 (5th Cir. 1998).

     36
          Id. at 170.
     37
          Id.
     38
          Id.

                                      21
that he did not remember being arrested or being read a Miranda

warning.     He also testified that he had been arrested and read

Miranda warnings several times previously and understood his rights

each time.     Jose Meza also presented the testimony of a licensed

chemical dependency counselor who testified that, based on a review

of portions of the videotaped statement, Jose Meza appeared to be

on some kind of amphetamine.

      The government presented the testimony of Billy Meeks, an

experienced Plano Police Department detective who interviewed Jose

Meza and who had prior dealings with him.           Meeks testified that he

read Jose Meza a Miranda warning and that Jose responded that he

understood and that he was willing to talk.            Meeks also testified

that there was no indication that Jose Meza was under the influence

of any controlled substance and that, when asked prior to the

interview, Jose Meza stated that he had last used cocaine or heroin

eleven days before. Meeks further testified that Jose Meza was not

in handcuffs, was not threatened or made any promises, and was

aware of questions asked and was responsive.

      The district court also viewed portions of the videotape

itself.      It then found that: the interview took place one hour

after arrest; Jose Meza was informed of the charges and read a

Miranda warning; no coercion was used and no promises were made;

and   Jose   Meza   looked   alert   on    the   videotape,   was   lucid   and

responsive, was quite articulate talking to Meeks and answering


                                      22
Meeks’s      questions,       and    appeared    to    be       understanding      the

conversation, despite occasionally yawning and scratching himself.

On the strength of these findings, which we conclude were not

clearly erroneous, we conclude that the government proved, by a

preponderance of the evidence, that Jose Meza voluntarily confessed

and validly waived his Fifth Amendment rights following a Miranda

warning.39       As such, we affirm the district court’s denial of Jose

Meza’s motion to suppress his videotaped statement.

D. Motions to sever

      Joinder of defendants “is proper if co-defendants are alleged

to have participated in the same act or transactions constituting

the offense.”40           Generally, “persons indicted together should be

tried together, especially in conspiracy cases.”41                   Under Federal

Rule of Criminal Procedure 14, a “[d]istrict court may grant a

severance ‘[i]f it appears that a defendant or the government is

prejudiced       by   a    joinder   of   offenses    or   of    defendants   in    an

indictment or information or by such joinder for trial together.’”42




      39
         See Mullin, 178 F.3d at 341-42; Garcia Abrego, 141 F.3d at 170, 171;
United States v. Andrews, 22 F.3d 1328, 1337-38 (5th Cir. 1994).
      40
           Burton v. United States, 237 F.3d 490, 494 (5th Cir. 2000).

      41
           Id.

       42
          United States v. Matthews, 178 F.3d 295, 298 (5th Cir. 1999) (quoting
FED. R. CIV. P. 14).

                                           23
      “We review the denial of a severance motion for an abuse of

discretion.”43    Our standards for challenges to a district court’s

denial of a motion to sever are well-settled: “To prevail, “the

defendant must show that: (1) the joint trial prejudiced him to

such an extent that the district court could not provide adequate

protection; and (2) the prejudice outweighed the government’s

interest in economy of judicial administration.”44

                                      1.

      Jose Solis argues that the district court erred in denying him

a severance because he was forced to trial with his brother, who

was charged with numerous overt acts which Jose Solis argues

produced a spill-over effect leading to Jose’s convictions, and

that he was afraid to testify on his own behalf.45            He argues that

he was convicted on guilt by association.46

      We   conclude   that   the   district    court    did   not    abuse   its

discretion in denying a severance for Jose Solis.                   The grounds

raised by Jose Solis do not rise to the level of a serious risk


      43
         United States v. Peterson, 244 F.3d 385, 393 (5th Cir.), cert. denied,
122 S. Ct. 133, and cert. denied, 122 S. Ct. 142 (2001).

      44
         Id. (quoting United States v. Richards, 204 F.3d 177, 193 (5th Cir.),
cert. denied, 531 U.S. 826 (2000)).
      45
         Jose Solis did not personally file a motion to sever but simply adopted
his co-defendants’ motions per the district court’s order, insofar as they were
applicable to him, and then orally reurged the motion to sever at trial.
      46
          To the extent the other defendants would seek to raise this issue by
adoption by reference under Rule 28(i), severance issues are fact-specific,
requiring a showing of “specific compelling prejudice,” United States v. Nutall,
180 F.3d 182, 187 (5th Cir. 1999), and so cannot be so adopted by reference, see
Baptiste, 264 F.3d at 586 n.6.

                                      24
that a joint trial would compromise one of Jose Solis’s specific

trial rights or prevent the jury from making a reliable judgment

about guilt or innocence, and the district court issued sufficient

cautionary instructions to the jury.47 Moreover, the jury acquitted

some of the alleged co-conspirators, supporting an inference that

the   jury    sorted    through   the   evidence,    however    complex,       and

considered each defendant and each count separately.48

                                        2.

      Mendez argues that the district court erred in denying his

motion to sever because he was prejudiced by being tried with co-

defendants with prior convictions admitted in evidence against them

and   by   the   cumulatively     prejudicial    combination     of   evidence,

offenses, and defendants and confusion of identities.                 Mendez’s

arguments do not merit reversal, especially where, as here, the

district court gave proper cautionary and limiting instructions

sufficient to mitigate the risks of prejudice of which Mendez

complains,49 and where it cannot be said that the “jury could not

be expected to compartmentalize the evidence as it relates to


      47
         See Peterson, 244 F.3d at 393-95; United States v. Broussard, 80 F.3d
1025, 1037 (5th Cir. 1996); see also United States v. Carbajal, 290 F.3d 277, 289
n.20, 291 (5th Cir. 2002); cf. United States v. Bermea, 30 F.3d 1539, 1573 (5th
Cir. 1994) (rejecting a similar claim by a defendant “that he was greatly
prejudiced by being tried jointly with three family members”); United States v.
Partin, 552 F.2d 621, 640-41 (5th Cir. 1977) (rejecting a similar guilt-by-
association-with-one’s-brother argument).

      48
           See United States v. Ellender, 947 F.2d 748, 755 (5th Cir. 1991).

      49
         See Richards, 204 F.3d at 193-94; United States v. Cihak, 137 F.3d 252,
259 (5th Cir. 1998); United States v. Rocha, 916 F.2d 219, 228-29 (5th Cir.
1990); Ellender, 947 F.2d at 755.

                                        25
separate defendants.”50 We conclude that the district court did not

err in denying Mendez’s motion to sever.

      Mendez, however, also argues that the district court erred by

denying his motions to sever, for mistrial, and for new trial based

on Jose Solis’s admission of the existence of a conspiracy during

his closing argument.         He argues that this admission by a non-

testifying co-defendant violates his Fifth Amendment due process

and Sixth Amendment Confrontation Clause rights.

      We review the denial of motions for mistrial and for new trial

for abuse of discretion.51        We reject Mendez’s argument.            First, it

is not at all clear that Jose Solis actually admitted the existence

of   the    conspiracy.        Throughout        the     closing,   his    attorney

alternately      referred    to   “the        alleged    conspiracy”      and   “the

conspiracy.”       Second, to the extent that the statement did admit

the existence of the conspiracy, the district court gave cautionary

instructions that argument and statements of counsel are not

evidence, as we have found sufficient to cure such prejudice in a

similar case, in which one defendant’s attorney indicated it was

his belief that the evidence was sufficient to establish his

client’s guilt on one of the counts.52                  Furthermore, because the


      50
           United States v. Williams, 809 F.2d 1072, 1084 (5th Cir. 1987).
      51
         United States v. Barton, 257 F.3d 433, 439 n.10 (5th Cir. 2001) (motion
for new trial), cert. denied, 122 S. Ct. 905 (2002); United States v. Honer, 225
F.3d 549, 555 (5th Cir. 2000) (motion for mistrial).

      52
           United States v. Hawkins, 661 F.2d 436, 454-55 (5th Cir. Unit B Nov.
1981).

                                         26
closing argument was not evidence, there was no denial of Mendez’s

rights secured by the Confrontation and Due Process Clauses.53

      Furthermore, to the extent Mendez sought a mistrial and

severance on these grounds, we have held that one co-defendant’s

admitting a conspiracy was not a mutually antagonistic defense that

required severance.54       No particular co-defendant was implicated,

so the statement does not implicate Bruton concerns.55               We find no

error in the district court’s denial of Mendez’s motions to sever,

for mistrial, and for new trial.

E. Challenges to evidentiary rulings

 1. Admission of summary testimony and charts under Federal Rule

                               of Evidence 1006

      Garcia argues that the district court erred in admitting into

evidence the government’s exhibits 615-631, a series of charts

summarizing evidence of communications between the defendants.                We

review     a   district   court’s    evidentiary    rulings    for    abuse   of

discretion and consider whether any error is harmless.56

      We find no error in admitting the charts.               The charts were

drawn from competent evidence before the jury, which was available



      53
           Cf. id.
      54
         See Rocha, 916 F.2d at 231; see also Zafiro v. United States, 506 U.S.
534, 538 (1993) (holding that “[m]utually antagonistic defenses are not
prejudicial per se,” so as to mandate severance).
      55
           See generally Nutall, 180 F.3d at 188.
      56
           See United States v. Powers, 168 F.3d 741, 748 (5th Cir. 1999).

                                       27
to the defendants at trial and was subject to cross-examination.57

Moreover, the jury was properly instructed concerning use of the

charts and the limitations thereof.58         Furthermore, even if there

was error in the use of the charts or the testimony of Agent Scott

Douglas introducing them, Garcia does not argue that it affected

one of his substantial rights.59        The district court did not abuse

its discretion in admitting this summary evidence.

 2. Admission of co-conspirator statements under Federal Rule of

                            Evidence 801(d)(2)(E)

      Mendez argues that the district court abused its discretion in

admitting hearsay statements, through the non-hearsay definition

of   Federal    Rule   of   Evidence   801(d)(2)(E)    for   co-conspirator

statements, from Chris Cooper, Honey Parsa, Jonathon Kollman,

Meghann LaBonte, and Santiago Mejia regarding the source of drugs

and hearsay statements from himself, because these statements were

not made in furtherance of the conspiracy.                We review “‘the

admission of hearsay evidence under the non-hearsay definition of

Rule 801(d)(2)(E) for abuse of discretion.’”60 Under our precedent,

“[t]he proponent of admittance under Rule 801(d)(2)(E) must prove


      57
         See United States v. Bishop, 264 F.3d 535, 547 (5th Cir. 2001), cert.
denied, 122 S. Ct. 1605 (2002).
      58
           See id.
      59
         Compare United States v. Hart, No. 01-60304, 2002 WL 1285810, at *7
(5th Cir. June 12, 2002).
      60
          United States v. Phillips, 219 F.3d 404, 418 n.21 (5th Cir. 2000)
(quoting United States v. Cornett, 195 F.3d 776, 782 (5th Cir. 1999)).

                                       28
by   a        preponderance    of   the   evidence    (1)     the     existence    of   a

conspiracy, (2) the statement was made by a co-conspirator of the

party,         (3)   the   statement   was    made   during     the    course    of   the

conspiracy, and (4) the statement was made in furtherance of the

conspiracy.”61

         After reviewing the evidence offered in connection with these

statements, we affirm the district court’s rulings admitting the

challenged co-conspirators’ statements and taped conversation. The

government offered adequate evidence in support of the district

court’s         rulings    admitting   these      statements,    and    the     district

court’s findings in support of those rulings were not clearly

erroneous.62          Accordingly, the district court did not abuse its

discretion in admitting these statements under Rule 801(d)(2)(E).




         61
               Id.

      62
         See id. at 418-19; United States v. Green, 180 F.3d 216, 222-23 (5th
Cir. 1999).

                                             29
    3. Admission of redacted confessions of non-testifying co-

                    defendants Arturo Meza and Jose Meza

      Mendez     also   argues   that   the    district    court   abused   its

discretion     in    admitting   redacted      summaries   of   Arturo   Meza’s

statement and Jose Meza’s statements in violation of his Fifth

Amendment rights as developed by Bruton and its progeny.

      We conclude that there was no Bruton error in the admission of

the summaries of the confessions of Arturo Meza and Jose Meza.              The

summaries contain no references to co-defendants, or specifically

Mendez, even as a neutral pronoun.63             Additionally, the district

court provided proper limiting instructions.64                  We affirm the

district court’s admission of the summaries of the statements of

Jose Meza and Hilario Meza into evidence.65

F. Prosecutor’s alleged comment on Garcia’s failure to testify and

post-arrest silence

      Garcia argues that the district court erred in overruling his

objection to the prosecutor’s alleged comment on his refusal to

testify and his right to remain silent in violation of his Fifth

Amendment rights.         “We review de novo whether a prosecutor’s




      63
         See Nutall, 180 F.3d at 188; United States v. Vejar-Urias, 165 F.3d
337, 339-40 (5th Cir. 1999).
      64
           See Vejar-Urias, 165 F.3d at 340.
      65
         We have also considered Mendez’s other evidentiary arguments but deemed
them to be without merit.

                                        30
argument is an impermissible comment on the defendant’s right not

to testify.”66

     “We apply a two-tiered test to [a defendant’s] claim that the

prosecutor improperly commented on his failure to testify,” the

first tier of which is to “determine whether the comments at issue

were constitutionally       impermissible.”67       We   conclude   that   the

prosecutor here did not make a constitutionally impermissible

comment by stating: “This is a circumstantial case, it’s a look

back in time and piecing together of evidence that Defendants

didn’t want you or I to discover.”               Garcia objected to this

statement at trial, and the district court gave a cautionary

instruction and overruled the objection.              The prosecutor then

clarified his argument to the jury by stating that, “[c]learly,

when people are engaged in criminal conduct, they don’t want to be

caught.    And that’s the point I’m trying to make.”

     Under these facts, the prosecutor’s manifest intent was not to

comment on the defendant’s silence and the character of the remark

was not such that the jury would naturally and necessarily construe

it as a comment on the defendant’s silence.68            The more plausible

explanation for the remark was that given by the prosecutor after




     66
          United States v. Morrow, 177 F.3d 272, 299 (5th Cir. 1999).

     67
          United States v. Virgen-Moreno, 265 F.3d 276, 291 (5th Cir. 2001),
cert. denied, 122 S. Ct. 843, and cert. denied, 122 S. Ct. 1452 (2002).
     68
          See id.

                                      31
the objection was overruled.            This comment was constitutionally

permissible, and we reject this point of error.69

G. Sufficiency of the evidence to establish venue for Count 12

      Arturo Meza argues that the district court erred in denying

his motion for acquittal as to Count 12 when the government offered

insufficient evidence that any of the events described therein

occurred on August 19, 1997, in the Eastern District of Texas, as

required for venue.         Mendez raises the same argument and also

argues that the government failed to prove venue for the most

prejudicial overt acts charged against him in Count 1.70

      We review the district court’s denial of a motion for judgment

of   acquittal     de   novo.71      Where   a   defendant   argues   that   the

government failed to adduce evidence sufficient to support venue

for a particular count, “we view the evidence in the light most

favorable to the Government, drawing all reasonable inferences in

favor of the verdict.”72          According to statute, “[w]hen an offense



      69
          Garcia also argues that the prosecutor’s comment constituted a Doyle
violation. See Doyle v. Ohio, 426 U.S. 610, 618-19 (1976). “A Doyle violation
occurs when the government comments on the defendant’s silence to rebut the
defendant’s exculpatory story.” United States v. Garcia-Flores, 246 F.3d 451,
457 (5th Cir. 2001). However, Garcia did not offer an exculpatory story, and so
his argument based on post-arrest silence is misplaced.
      70
          All the other defendants move to adopt the arguments of the other
defendants by reference pursuant to Rule 28(i). However, “[s]ufficiency of the
evidence challenges are fact-specific, so we will not allow the appellants to
adopt those arguments.” Baptiste, 264 F.3d at 586 n.6.

      71
           Delgado, 256 F.3d at 273.

      72
         United States v. Loe, 248 F.3d 449, 465 (5th Cir.), cert. denied, 122
S. Ct. 397 (2001).

                                        32
is begun in one district and completed in another, venue is proper

in any district in which the offense was ‘begun, continued, or

completed,’”73 and “venue is properly based on a preponderance of

the evidence showing the commission of any single act that was part

of the beginning, continuation, or completion of the crime.”74                 We

have held that, “[a]lthough the government must prove venue by the

preponderance of the evidence, circumstantial evidence alone is

sufficient to establish venue.”75

      Our    review      of   the   record    convinces   us   that   there   was

sufficient evidence that the heroin distributed as alleged in Count

12 was transported from the Eastern District of Texas on August 19

and delivered as part of the conspiracy to an apartment that, as

the government stipulated, is located in the Northern District of

Texas.76     We note that, under Pinkerton liability, the government



      73
         United States v. Fells, 78 F.3d 168, 170 (5th Cir. 1996) (quoting 18
U.S.C. § 3237(a)).

      74
           Id. at 171.

      75
           Loe, 248 F.3d at 465.

      76
           See United States v. Tingle, 183 F.3d 719, 727 (7th Cir. 1999)
(“Distribution of drugs can be a continuing offense, and thus governed by §
3237(a) for purposes of venue, where there are multiple acts of the defendant
which constituted distribution.”); United States v. Brunty, 701 F.2d 1375, 1380-
81 (11th Cir. 1983) (holding that distribution is a continuing offense); cf.
United States v. Pomranz, 43 F.3d 156, 159 (5th Cir. 1995) (holding that
“conspiracy to distribute marihuana is a continuing offense under [18 U.S.C. §
3237]”); United States v. Davis, 666 F.2d 195, 199 (5th Cir. 1982) (holding that
possession with intent to distribute is a continuing offense under 18 U.S.C. §
3237).   Compare Carbajal, 290 F.3d at 289 (“Even assuming that Carbajal did
preserve this issue for appeal, venue in the Eastern District was proper because
the government presented evidence that a convicted coconspirator purchased heroin
from Carbajal and resold it in Denton County, which is located in the Eastern
District of Texas.”).

                                         33
need not prove by a preponderance of the evidence that Arturo Meza

himself transported the drugs from the Eastern District, but only

that he or one of his co-conspirators did so.             The district court

did not err in ruling that there was sufficient evidence that one

or more of the Meza brothers traveled with the heroin alleged in

Count 12 from the Eastern District.                  As for Mendez’s second

argument, venue is not required over all overt acts alleged in

Count 1, and so his argument on this score is without merit.77

H.   Sufficiency      of   the   evidence      to   support   the   defendants’

convictions

      In reviewing a challenge to the sufficiency of the evidence,

we must determine whether a rational jury could have found that the

evidence established guilt beyond a reasonable doubt on each

element of the offense, drawing all reasonable inferences from the

evidence and viewing all credibility determinations in the light

most favorable to the verdict.78           We do not evaluate the weight of

the evidence or the credibility of the witnesses.79

                                          1.




      77
         Cf. Pomranz, 43 F.3d at 158-59 (“Furthermore, venue in conspiracy cases
is proper in any district where the agreement was formed or where an overt act
in furtherance of the conspiracy was performed.”).
      78
         Barton, 257 F.3d at 439. All the defendants timely made and properly
renewed their motions for acquittal at the close of the evidence, so we review
the sufficiency challenges de novo and not simply for plain error. See id.
      79
           Delgado, 256 F.3d at 273-74.

                                          34
       To sustain a conviction for conspiracy “under 21 U.S.C. § 841,

the government must prove beyond a reasonable doubt: ‘(1) the

existence of an agreement between two or more persons to violate

narcotics law; (2) the defendant’s knowledge of the agreement; and

(3) the defendant’s voluntary participation in the agreement.’”80

It is well-settled that “[a] jury may infer these elements from

circumstantial evidence.”81

       Jose Solis, Pineda, Favela, Hilario Solis, and Mendez argue

that the evidence is insufficient to support their convictions for

conspiracy under Count 1 of the indictment.82                   The extensive

evidence contained in the record and marshaled in the government’s

brief, however, affirms that these challenges are meritless. Thus,

the evidence, viewed in the light most favorable to the government,

adequately supports the jury’s findings beyond a reasonable doubt

that    there    was   an   agreement    between   two   or   more   persons   to

distribute heroin and cocaine, that each of these defendants knew

of the agreement, and that each voluntarily participated.83

      80
         Virgen-Moreno, 265 F.3d at 284 (quoting United States v. Gonzalez, 76
F.3d 1339, 1346 (5th Cir. 1996)).
       81
            Baptiste, 264 F.3d at 587.
       82
         As noted above, although all the other defendants move to adopt the
arguments of the other defendants by reference pursuant to Rule 28(i),
sufficiency of the evidence challenges may not be adopted by reference. Id. at
586 n.6.
      83
          Mendez also argues that the testimony of Martinez, Hancock, Alfonzo
Meza, and Jose Meza was inherently incredible as a matter of law. “‘Testimony
is incredible as a matter of law only if it relates to facts that the witness
could not possibly have observed or to events which could not have occurred under
the laws of nature.’” Green, 180 F.3d at 221 (quoting Bermea, 30 F.3d at 1552).
Mendez’s attacks on the credibility of the testimony of these witnesses do not

                                         35
                                       2.

      Jose    Solis,    Pineda,   Favela,    Hilario   Solis,    and   Mendez,

however, also challenge the sufficiency of the evidence to support

their convictions for several substantive counts of the indictment.

We have recently summarized the requirements for the government to

prevail on a charge of a substantive violation of 21 U.S.C. §

841(a)(1): “The essential elements of possession with the intent to

distribute controlled substances in violation of 21 U.S.C. § 841

are 1) knowledge, 2) possession, and 3) intent to distribute the

controlled substances.”84

      The government notes that the defendants can, in the absence

of direct personal involvement, be held liable for the substantive

counts charged against them based on Pinkerton liability.85                  “A

party to a continuing conspiracy may be criminally liable for a

substantive offense committed by a co-conspirator in furtherance of

the conspiracy, even though the party does not participate in the

substantive offense, or have any knowledge of it.”86 The government



rise to this level and so are without legal merit. See United States v. Meshack,
225 F.3d 556, 566 (5th Cir. 2000), cert. denied, 531 U.S. 1100 (2001), and
amended on other grounds on grant of reh’g in part, 244 F.3d 367 (5th Cir.), and
cert. denied, 122 S. Ct. 142 (2001).
      84
           Delgado, 256 F.3d at 274.
      85
           See United States v. Hull, 160 F.3d 265, 272 (5th Cir. 1998).
      86
          United States v. Garcia, 242 F.3d 593, 597 n.3 (5th Cir. 2001); see
also United States v. Narviz-Guerra, 148 F.3d 530, 535 (5th Cir. 1998) (“Thus,
once the conspiracy and the defendant’s knowing participation therein is proved
beyond a reasonable doubt, a defendant is guilty of the substantive acts his
partners committed in furtherance of the conspiracy.”).

                                       36
also correctly notes that the jury was instructed on a Pinkerton

theory of liability as is required.87

      We have further held, however, that “[a] party to a conspiracy

may be held criminally responsible for a substantive offense

committed by a coconspirator in furtherance of the conspiracy

[only] if the offense was reasonably foreseeable and was committed

during that party’s membership in the conspiracy.”88              Distribution

and possession with intent to distribute offenses are reasonably

foreseeable acts in furtherance of a conspiracy to distribute

drugs.89

      Our review of the record convinces us that, with the exception

of Pineda’s challenge to his convictions for Counts 6 and 9, these

defendants’ arguments as to sufficiency of the evidence under the

substantive counts charged against them are without merit based on

the evidence presented at trial and, insofar as the defendants

claim to have had no personal involvement in any particular drug

transaction, on the basis of Pinkerton liability. Even drawing all

reasonable inferences from the evidence and viewing all credibility

determinations in the light most favorable to the verdict, however,

we conclude that there was no evidence of personal involvement by



      87
           See Garcia, 242 F.3d at 597 n.3.
      88
           Richards, 204 F.3d at 210.

      89
         See United States v. Pierce, 893 F.2d 669, 676 (5th Cir. 1990); United
States v. Hodges, 606 F.2d 520, 523 (5th Cir. 1979); United States v. Decker, 543
F.2d 1102, 1104 (5th Cir. 1976).

                                        37
Pineda in the transactions charged in Counts 6 and 9, as the

government itself admitted at trial.    Furthermore, the evidence

presented at trial was insufficient to allow a reasonable jury to

conclude that Pineda was a member of the conspiracy at a time prior

to August 1997 and therefore at the time of the transactions on

June 8, 1997 (Count 6) and July 23, 1997 (Count 9) so as to support

Pineda’s convictions of Counts 6 and 9 under a Pinkerton theory.

                                3.

     We affirm the district court’s denial of the motions for

acquittal of Jose Solis, Favela, Hilario Solis, and Mendez and of

Pineda as to Counts 1, 12, 14-15, 18-25, and 27-28, but we reverse

Pineda’s conviction on Counts 6 and 9, vacate his life sentences as

to Counts 6 and 9, and remand for entry of a judgment of acquittal

on these counts and resentencing, if necessary.




                                38
              III. Challenges to the defendants’ sentences

A. Apprendi claims

                                      1.

      Garcia, Pineda, Alfonzo Meza, Arturo Meza,90 Hilario Solis,

Mendez, and Jose Meza argue that their sentences violate the rule

of Apprendi v. New Jersey91 because the indictment failed to allege

drug quantity and cause of death as required for sentencing under

21 U.S.C. § 841(b)(1) and because findings on these factual matters

were not made either by a jury or upon proof beyond a reasonable

doubt.92     We address the claimed Apprendi violations as to drug

quantity and cause of death in turn.




      90
          Arturo Meza did not raise an Apprendi challenge to his sentence, but
has moved to adopt his co-defendants’ Apprendi arguments by reference under Rule
28(i). Although we have generally stated that sentencing challenges cannot be
adopted under Rule 28(i), particularly challenges to the application of the
Sentence Guidelines, because they are fact-specific, the Apprendi issue here,
outside of a simple observation of the length of the sentences imposed on each
defendant, is not fact-specific. See Morrow, 177 F.3d at 302 n.3 (noting that
“challenges to the application of the Sentence Guidelines are generally
fact-specific and cannot be adopted by reference pursuant to Fed. R. App. P.
28(i)”); Baptiste, 264 F.3d at 586 n.6 (“FRAP 28(i) permits appellants to do so
for challenges that are not fact-specific as to a particular defendant.”); cf.
United States v. McWaine, 290 F.3d 269, 277 (5th Cir. 2002) (“We have raised sua
sponte Apprendi issues in other cases when necessary to avoid manifest
injustice.”). We thus conclude that Arturo Meza has sufficiently raised this
issue for appeal.
      91
           530 U.S. 466 (2000).
      92
          Favela and Jose Solis do not raise Apprendi challenges to their
sentences, and they could not successfully do so, because they were sentenced to
140 months and 240 months imprisonment, respectively, which is equal to or less
than the statutory maximum of 20 years prescribed by 21 U.S.C. § 841(b)(1)(C),
the default provision where no specific quantity or other enhancing fact is
alleged. See United States v. Doggett, 230 F.3d 160, 165 (5th Cir. 2000), cert.
denied, 531 U.S. 1177 (2001).

                                      39
      Following Apprendi, “[t]he district court must submit to the

jury any fact, other than a prior conviction, that increases the

penalty for a crime beyond the prescribed statutory maximum,” and,

“[i]f the government seeks an enhancement of the penalties for a

crime based on the amount of drugs, the quantity must be stated in

the indictment and submitted to the jury for a finding of proof

beyond a reasonable doubt.”93          In the absence of enhancing drug

quantities, “Section 841(b)(1)(C) sets the statutory maximum for an

offense involving an unspecified amount of a Schedule I substance

at 20 years in prison,” and “[h]eroin is a Schedule I substance.”94

      However, section 841(b)(1)(C) provides that, “if death or

serious bodily injury results from the use of such substance [the

defendant] shall be sentenced to a term of imprisonment of not less

than twenty years or more than life.”95         We conclude that, pursuant

to Apprendi, like drug quantity, whether death or bodily injury has

resulted from a drug offense is a fact that must be proved beyond




      93
         United States v. Peters, 283 F.3d 300, 313 (5th Cir.), cert. denied,
122 S. Ct. 1949, and cert. denied, 122 S. Ct. 2612 (2002). This application of
Apprendi to 21 U.S.C. § 841 has been implicitly affirmed by the Supreme Court.
See United States v. Cotton, 122 S. Ct. 1781, 1785, 1786 n.3 (2002).
      94
           United States v. Cooper, 274 F.3d 230, 243 (5th Cir. 2001).

      95
          21 U.S.C. § 841(b)(1)(C); cf. id. § 841(b)(1)(A) (“such person shall
be sentenced to a term of imprisonment which may not be less than 10 years or
more than life and if death or serious bodily injury results from the use of such
substance shall be not less than 20 years or more than life”); id. § 941(b)(1)(B)
(“such person shall be sentenced to a term of imprisonment which may not be less
than 5 years and not more than 40 years and if death or serious bodily injury
results from the use of such substance shall be not less than 20 years or more
than life”).

                                       40
a reasonable doubt to the finder of fact.96              Consistent with the

conclusions      reached   in   our    Apprendi   case   law   regarding   drug

quantity under 21 U.S.C. § 841(b)(1), whether “death or serious

bodily injury results from the uses of such substance” calls for a

factual determination which “significantly increases the maximum

penalty from 20 years ... to life imprisonment.”97               As such, the

fact of cause of death is “a fact used in sentencing that does ...

increase a penalty beyond the statutory maximum” and so “need[s to]

... be alleged in the indictment and proved to a jury beyond a

reasonable doubt.”98

      Looking first to the alleged Apprendi errors involving drug

quantity, no objection was raised at trial to the failure to

include drug quantity in each count of the indictment or the

failure to submit drug quantity to the jury for determination upon

proof beyond a reasonable doubt, and, at sentencing, no objection

was made to the judge’s determination of drug quantity by a

preponderance of the evidence standard. Only the sentences imposed


      96
         See United States v. Neuhausser, 241 F.3d 460, 464-65 (6th Cir. 2000),
cert. denied, 122 S. Ct. 181 (2001); United States v. Flowal, 234 F.3d 932, 936
n.2 (6th Cir. 2000); United States v. Rebmann, 226 F.3d 521, 524-25 (6th Cir.
2000); cf. United States v. Cathey, 259 F.3d 365, 368 n.12 (5th Cir. 2001)
(implying in dicta that cause of death is a fact which could give rise to an
Apprendi violation had the defendant been sentenced to more than 240 months);
Doggett, 230 F.3d at 164 (“Section 841(b) defines the applicable penalties for
violations of § 841(a) based on the type and quantity of drug, previous
convictions, and whether death or serious bodily injury resulted from use of the
drug.”).

      97
           Doggett, 230 F.3d at 164.
      98
         United States v. Keith, 230 F.3d 784, 787 (5th Cir. 2000) (per curiam),
cert. denied, 531 U.S. 1182 (2001).

                                        41
in excess of 240 months on any given count are subject to Apprendi

challenge,99 such that only the defendants’ respective sentences for

Counts 1, 6, 9, 12, 26, 27, and 28 are subject to their Apprendi

challenges.100       In the indictment here, as to these counts, a drug

quantity of cocaine and/or heroin was alleged only in Count 26

against Garcia, stating only “more than 100 grams of heroin” and

listing the count as a violation of 21 U.S.C. § 841(a)(1) with a

potential penalty of “not less than 5 years nor more than 40

years,” and in Count 28 against Pineda and Garcia, stating “more

than 100 grams of heroin” and “approximately 250 grams of cocaine”

and listing the count as a violation of 21 U.S.C. § 841(a)(1) with

a potential penalty of “not less than 5 years nor more than 40

years.” Drug quantities were also alleged in Overt Acts 9, 15, 18,

19, 22, 23, 24, 25, 26, 27, 28, 30, 31, 32, 35, 38, 39, and 40

listed under Count 1 for conspiracy in violation of 21 U.S.C. §

846.

       In the absence of an objection at trial or sentencing, we

review the alleged Apprendi errors as to drug quantity for plain

error only.101       Under a plain error analysis, the court can correct

       99
             See Doggett, 230 F.3d at 165.

      100
          To recap, the Apprendi challenges apply only to Garcia’s sentences on
Counts 1, 6, 9, 12, 26, 27, and 28; Mendez’s sentences on Counts 1, 6, 9, 12, and
27; Hilario Solis’s sentences on Counts 1, 6, 9, and 12; Alfonzo Meza’s sentences
on Counts 1, 6, 12, and 27; Arturo Meza’s sentences on Counts 1, 6, 9, 12, and
27; Jose Meza’s sentences on Counts 1, 12, and 27; and Pineda’s sentences on
Counts 1, 12, 27, and 28, but, of course, excludes the sentences imposed on
Pineda for Counts 6 and 9, on which we have reversed his convictions.
       101
             Cotton, 122 S. Ct. at 1785; Peters, 283 F.3d at 313.

                                         42
an error not raised at trial only if there is (1) error, (2) that

is plain, and (3) that affects the appellant’s substantial rights,

and further, if all three of these conditions are met, the court

may exercise its discretion to notice the forfeited error only if

(4) the error seriously affects the fairness, integrity, or public

reputation of judicial proceedings.102

     As to the failure to charge drug quantities in the indictment

as to Counts 1, 6, 9, 12, and 27, the government argues, inter

alia, that there is no Apprendi error because the penalty provision

listed in Count 1 for conspiracy and Counts 6, 9, 12, and 27

provided the defendants with notice that they could be sentenced to

imprisonment of “[n]ot less than 20 years not more than life.”

However,     the   district    court     here   imposed   sentences   on   the

defendants of greater than 240 months for Counts 1, 6, 9, 12, and

27 not based on drug quantities but based on a finding by a

preponderance of the evidence that the users of the heroin in

Counts 6, 9, and 12 and of the cocaine and heroin in Count 27 died

as a result of the drugs distributed to them by the defendants or

their co-conspirators.         Indeed, this comports with the penalty

provision listed under Count 1, which matches up with the statutory

sentencing ranges under 21 U.S.C. §§ 841(b)(1)(A), 841(b)(1)(B),

and 841(b)(1)(C) of “not less than 20 years or more than life”

where “death or serious bodily injury results from the use of such


     102
           Cotton, 122 S. Ct. at 1785.

                                         43
substance” and not the ranges in 21 U.S.C. §§ 841(b)(1)(A) and

841(b)(1)(B) based on specified drug quantities in the absence of

death or serious bodily injury caused by the use of the drug.103

The basis for the district court’s sentences is further confirmed

by   a review     of   the   presentence    investigation    reports    on   the

defendants, each of which the district court adopted in relevant

part at sentencing.

      As to Garcia’s sentences for Counts 26 and 28 and Pineda’s

sentence for Count 28, there is no error in failing to include

specific drug quantities in the indictment as to these counts if,

as was the question presented in our recent decision in United

States v. Moreci,104 the information provided in each count “is

sufficient to inform a defendant of the specific charges made

against him, including the quantity of drugs alleged for the



      103
          See 21 U.S.C. § 841(b)(1)(A) (“Except as otherwise provided in section
859, 860, or 861 of this title, any person who violates subsection (a) of this
section shall be sentenced as follows: (1)(A) In the case of a violation of
subsection (a) of this section involving—(i) 1 kilogram or more of a mixture or
substance containing a detectable amount of heroin; ... such person shall be
sentenced to a term of imprisonment which may not be less than 10 years or more
than life and if death or serious bodily injury results from the use of such
substance shall be not less than 20 years or more than life ....”); id. §
841(b)(1)(B) (“In the case of a violation of subsection (a) of this section
involving—(i) 100 grams or more of a mixture or substance containing a detectable
amount of heroin; ... such person shall be sentenced to a term of imprisonment
which may not be less than 5 years and not more than 40 years and if death or
serious bodily injury results from the use of such substance shall be not less
than 20 years or more than life ....”); id. § 841(b)(1)©) (“In the case of a
controlled substance in schedule I or II, ... except as provided in subparagraphs
(A), (B), and (D), such person shall be sentenced to a term of imprisonment of
not more than 20 years and if death or serious bodily injury results from the use
of such substance shall be sentenced to a term of imprisonment of not less than
twenty years or more than life ....”).
      104
            283 F.3d 293 (5th Cir. 2002).

                                       44
purpose of sentencing enhancements and what those enhancements may

be, in satisfaction of Apprendi.”105           Unlike the facts presented

Moreci, in which this court addressed this question as a matter of

first impression, here Counts 26 and 28 did not include the

identification       of   any   particular    subsection   of    21   U.S.C.   §

841(b)(1), but it did note that the possible penalties ranged from

5 year to 40 years imprisonment.             Such a penalty range is found

only in 21 U.S.C. § 841(b)(1)(B), which provides that, in the case

of a violation involving “100 grams or more of a mixture or

substance containing a detectable amount of heroin,”106 an offender

upon conviction “shall be sentenced to a term of imprisonment which

may not be less than 10 years or more than life and if death or

serious bodily injury results from the use of such substance shall

be not less than 20 years or more than life.”107                In the face of

such information, Garcia and Pineda were on sufficient notice that

they were being indicted for violations of section 841(a)(1) for an

amount of more than 100 grams but less than one kilogram of heroin,

which could not implicate the penalty provisions of 21 U.S.C. §




      105
            Id. at 297.
      106
          But less than “1 kilogram or more of a mixture or substance containing
a detectable amount of heroin,” which would implicate the penalty provisions of
21 U.S.C. § 841(b)(1)(A), which provides that a convicted offender “shall be
sentenced to a term of imprisonment which may not be less than 10 years or more
than life and if death or serious bodily injury results from the use of such
substance shall be not less than 20 years or more than life.”
      107
            21 U.S.C. § 841(b)(1)(B).

                                        45
841(b)(1)(C), including its maximum of 20 years in prison.108 There

is no Apprendi error with regard to drug quantity alleged in the

indictment in Counts 26 and 28.

      Having established that there is no Apprendi error in the

indictment as to Counts 26 and 28, we turn to the alleged Apprendi

error in the district court’s failure to charge the jury as to drug

quantity on these counts.        Here, we apply both plain and harmless

error analysis.109 Assuming there would otherwise be plain error,110


      108
           See id. § 841(b)(1)(C) (“In the case of a controlled substance in
schedule I or II, ... except as provided in subparagraphs (A), (B), and (D), such
person shall be sentenced to a term of imprisonment of not more than 20 years and
if death or serious bodily injury results from the use of such substance shall
be sentenced to a term of imprisonment of not less than twenty years or more than
life ...” (emphasis added)); cf. Moreci, 283 F.3d at 299 (conducting a similar
analysis with regard to a charge involving marijuana to conclude “that a charge
of ‘more than 50 kilograms’ takes an indictment out of the ‘default’ statute of
§ 841(b)(1)(D), into § 841(b)(1)(C), and, without more, operates to exclude the
penalties of §§ 841(b)(1)(A) and (B)”).

      109
          Peters, 283 F.3d at 313 (“Because the defendants did not object to the
failure of the district court to include instructions with respect to drug
quantity, we review for plain error. Assuming that the error was otherwise
plain, a jury instruction that omits an element of the offense is subject to
harmless error analysis. We will grant relief under this analysis only if the
district court’s failure to instruct the jury that it must find a specific drug
quantity beyond a reasonable doubt was not harmless. To determine harmlessness
when a jury is not instructed as to an element of an offense, we decide whether
the record contains evidence that could rationally lead to a contrary finding
with respect to the omitted evidence.” (footnotes omitted)).

      110
          This is by no means clear in light of United States v. Cotton, 122 S.
Ct. 1781 (2002), where the Court, after finding that there was error that was
plain, held that, “even assuming [the defendants’] substantial rights were
affected, the error did not seriously affect the fairness, integrity, or public
reputation of judicial proceedings.” Id. at 1786. This was because, despite
“the omission of drug quantity from the indictment,” there “[t]he evidence that
the conspiracy involved at least 50 grams of cocaine base was ‘overwhelming’ and
‘essentially uncontroverted.’” Id. The Cotton Court detailed how “[m]uch of the
evidence implicating [the defendants] in the drug conspiracy revealed the
conspiracy’s involvement with far more than 50 grams of cocaine base,” id., and
noted that the defendants “never argued that the conspiracy involved less than
50 grams of cocaine base, which is the relevant quantity for purposes of
Apprendi, as that is the threshold quantity for the penalty of life imprisonment
in 21 U.S.C. § 841(b)(1)(A),” id. at 1786 n.3. Thus, based on much the same

                                       46
we conclude that any error was harmless because, as in United

States      v.    Green,111   there    was    “extensive,     detailed,      and

uncontroverted testimony regarding” the quantities of drugs charged

in Counts 26 and 28.112       Our review of the record indicates that it

contains no evidence which could lead the jury to rationally

conclude contrary to the quantities of drugs charged in Counts 26

and 28.     The jury had the indictment with it during deliberations,

including the drug quantities charged in Counts 26 and 28, and the

defendants offered no testimony controverting the amount of drugs

involved in the charged drug transactions at trial and point to no

such testimony or evidence on appeal.113              We conclude that the

district court’s error in failing to instruct the jury to find a

specific amount of drugs beyond a reasonable doubt as to Counts 26

and 28 was harmless.

      We turn then to the alleged Apprendi errors in the omission of

allegations as to cause of death from Counts 1, 6, 9, 12, and 27 of

the indictment and the district court’s failure to either charge

the jury to make factual findings as to cause of death or to make



reasoning as this court has used to find harmless Apprendi error where drug
quantity was not charged to the jury, see, e.g., United States v. Green, 246 F.3d
433, 437 (5th Cir.), cert. denied, 122 S. Ct. 280 (2001), the Cotton Court found
no reversible plain error although drug quantity was neither included in the
indictment, as it was here, nor charged to the jury, without reaching a harmless
error analysis.

      111
            246 F.3d 433 (5th Cir.), cert. denied, 122 S. Ct. 280 (2001).
      112
            Id. at 437.
      113
            See Virgen-Moreno, 265 F.3d at 298; Delgado, 256 F.3d at 281.

                                       47
such a determination itself upon proof beyond a reasonable doubt.

No objection was raised at trial to the failure to submit cause of

death facts to the jury for determination upon proof beyond a

reasonable doubt.       At sentencing, however, the defendants objected

to the failure to submit the evidence of the causes of death

resulting from the use of the drugs to a jury for determination by

a standard of proof beyond a reasonable doubt.                The government

therefore concedes that our review of these challenges is de novo

but argues that the absence of cause of death from the indictment

was the result of the defendants’ own motion to strike and so any

such violation of the rule of Apprendi is invited error.             We agree.

     We have recently summarized the doctrine of invited error:

     The doctrine of invited error provides that “when
     injection of inadmissible evidence is attributable to the
     actions of the defense, the defense cannot later object
     to such ‘invited error.’”       Under this doctrine, a
     defendant cannot complain on appeal of alleged errors
     which he invited or induced, especially where the
     defendant may not have been prejudiced by the error. We
     “will not reverse on the basis of invited error, absent
     manifest injustice.”114

Here, the cause of death facts were alleged in the indictment under

Counts 1, 6, 9, 12, and 27,115 but the defendants successfully moved

to have these allegations stricken from the indictment and kept out

of evidence through a “Motion to Strike Surplusage in Indictment


     114
            United States v. Green, 272 F.3d 748, 754 (5th Cir. 2001) (footnotes
omitted).
     115
         Count 16 alleged serious bodily injury caused to a user of the drugs
charged therein, but this count was dismissed at trial on the government’s
motion.

                                       48
and Motion in Limine.”           The defendants argued at trial, prior to

the Supreme Court’s decision in Jones v. United States,116 that the

deaths caused by drugs alleged in Counts 1, 6, 9, 12, and 27, for

which      increased   mandatory       minimum      and   maximum   sentences      were

available under 21 U.S.C. § 841(b)(1), were merely sentencing

factors and not properly included in the indictment or the jury

charge.      They argued that it was unnecessary for the jury to make

any determination regarding the deaths or injuries as alleged in

the indictment because causing death or injury is not an element of

the offense with which the defendants were charged and that,

because the deaths or injuries do not relate to guilt or innocence,

inclusion of these allegations in the indictment would unduly

prejudice the defendants.               The defendants successfully argued

further that no evidence of the deaths or injuries to drug users

should be presented to the jury.

     The defendants clearly induced the erroneous omission, by way

of a motion to strike, of the allegations regarding cause of death

from Counts       1,   6,   9,   12,   and     27   of    the   indictment   and    the

subsequent failure to charge the jury to make factual findings by

proof beyond a reasonable doubt on these matters.                       As counsel

admitted at oral argument, there were clear strategic advantages to

keeping such prejudicial material from the jury, and the defendants

received the benefit of their successful efforts to insulate the


     116
            526 U.S. 227 (1999).

                                          49
jury from this information.        The government, in response to the

motion to strike, agreed that causing death or injury was not an

element of the charged offenses, but sought to present evidence of

the deaths or injuries to drug users as proof of the conspiracy,

showing the defendants’ motive, knowledge, and intent.

     The defendants cannot maintain at trial that causing death or

injury is not an element and is simply a sentencing enhancement,

thereby inducing the district court to take the allegations from

the indictment and keep the evidence from the jury, and then argue

at sentencing that causing death or injury is an element and must

be decided by proof beyond a reasonable doubt, by the district

court, if not by a jury.      The defendants elected to have the cause

of death or injuries issue decided as a sentencing matter by the

court by the usual preponderance standard at sentencing, and not by

the jury at trial by proof beyond a reasonable doubt as a matter of

guilt or innocence.       The defendants knew that the differential

standards   of   proof   were   the   accompanying    baggage    when   they

succeeded in shuttling this issue to sentencing and away from

trial.117

     That the defendants later tried to renege on this bargain is

of no moment, because they had waived their rights to have this



      117
           See United States v. Huskey, 137 F.3d 283, 291 (5th Cir. 1998)
(“Ultimately, the district court ‘need only determine its factual findings at
sentencing by a preponderance of the relevant and sufficiently reliable
evidence.’” (quoting United States v. Angulo, 927 F.2d 202, 205 (5th Cir.
1991))).

                                      50
issue determined by a jury as a matter of guilt or innocence, by

proof beyond     a   reasonable    doubt.118     Our   conclusion      might   be

different if the defendants had sought simply to waive their rights

to have a jury decide the cause of death or injury issues and had

elected to have the district court decide this issue as a matter of

guilt or innocence by proof beyond a reasonable doubt.                 But this

was not the strategy the defendants pursued or the bargain they

struck—the total package the defendants sought and received was to

take this issue entirely from the jury’s consideration and from the

trial to determine their guilt or innocence, on the ground that the

issue involved only sentencing enhancements to be decided by the

court by the well-settled preponderance standard.

      As a result, we find no manifest injustice will flow from our

refusal to correct any such invited Apprendi errors.              We therefore

reject   the   defendants’     Apprendi     challenges    to   their    various

sentences for Counts 1, 6, 9, 12, and 27.

                                       2.

      For the first time at oral argument, Jose Solis argued that

his sentence was imposed in violation of the rule of Apprendi

because the district court imposed his sentence under the twenty-

year mandatory minimum sentence based on the district court’s cause



      118
          At the so-called cause of death hearing, counsel for Garcia, in whose
objection all of the defendants joined, explicitly argued that, if the defendants
had waived their rights to a jury determination on the cause of death issues,
they were still entitled to a determination by the court based on proof beyond
a reasonable doubt.

                                       51
of death findings by a mere preponderance of the evidence.                  We may

decline to address this issue because it was not first raised in

the briefs.119     We need not do so, however, because the contention

that Apprendi applies to mandatory minimums is meritless in light

of   the    Supreme   Court’s    recent    decision    in   Harris    v.    United

States.120

B.   Challenges     to   the   evidence   supporting    the   cause    of   death

findings for sentencing purposes

      Several of the defendants raise challenges to the sufficiency

or propriety of the evidence supporting the district court’s cause

of death findings for purposes of sentencing the defendants.                   We

address these arguments in turn.

                                      1.

      Alfonzo Meza argues that, even under a preponderance standard,

the government’s proof at the cause of death hearing failed to

establish that the individuals’ deaths, as charged in Counts 6, 12,

and 27 of the indictment, were caused by the use of heroin.                 Thus,

he contends that the district court erred in enhancing his sentence

under U.S.S.G. § 2D1.1(a)(2).

      Alfonzo Meza argues that the government admits that neither

Rob Hill (Count 12) nor Erin Baker (Count 27) died from heroin

      119
           See Comsat Corp. v. FCC, 250 F.3d 931, 936 n.5 (5th Cir. 2001)
(“Arguments presented for the first time at oral argument are waived.”). But cf.
McWaine, 290 F.3d at 277 (“We have raised sua sponte Apprendi issues in other
cases when necessary to avoid manifest injustice.”).
      120
            122 S. Ct. 2406 (2002).

                                      52
overdoses but rather from an asthma attack (Hill) and a pulmonary

embolism (Baker).     Alfonzo Meza observes that the government’s

expert witness testified that heroin caused Hill’s asthma attack

but that a combination of heroin, cocaine and diphenhydramine

caused Baker’s embolism.       He asserts that, because these opinions

were not supported by a competent medical or scientific study, case

report, or other evidence indicating that heroin can cause asthma

attacks or blood clots, the government did not provide competent

and trustworthy expert evidence to show a link between heroin and

Hill’s and Baker’s deaths.       Alfonzo Meza further argues that the

evidence is     insufficient    to   prove   by   a   preponderance   of   the

evidence that Milan Malina (Count 6) died from a heroin overdose

because it is equally probable he died from a cocaine overdose but

cocaine was not charged in Count 6 or discussed in the presentence

report (PSR).

     Because we have determined that the defendants waived any

right they had to have the cause of death issue as to Counts 1, 6,

9, 12, and 27 resolved as a matter of guilt or innocence by a jury

by proof beyond a reasonable doubt, the district court’s cause of

death findings were only required to be made by a preponderance of

the evidence to support an enhancement under U.S.S.G. § 2D1.1(a)(2)

based upon the usual rules governing a court’s factual findings for




                                     53
sentencing purposes.121         We review the district court’s factual

findings for clear error only, and, in making its findings, the

district court may consider any information which bears “sufficient

indicia of reliability to support its probable accuracy,” including

hearsay evidence, without regard to admissibility under the Federal

Rules of Evidence which govern at trial.122             “The district court’s

findings are not clearly erroneous if they are plausible in light

of the record reviewed in its entirety.”123

      At sentencing, the defendant bears the burden of rebutting the

evidence used against him for purposes of sentencing by proving

that it is materially untrue, inaccurate or unreliable.124                  “Mere

objections do not suffice as competent rebuttal evidence.”125

      Alfonzo Meza does not deny that he supplied the heroin alleged

in Counts 6, 12, and 27, only that the heroin caused the respective

users’ deaths.        We have recently held “that § 2D1.1(a)(2) is a

strict liability provision and does not require proof of proximate

      121
          See Huskey, 137 F.3d at 291. U.S.S.G. § 2D1.1(a)(2) provides for a
base offense level of 38 if “if the defendant is convicted under 21 U.S.C. §
841(b)(1)(A), (b)(1)(B), or (b)(1)©), or 21 U.S.C. § 960(b)(1), (b)(2), or
(b)(3), and the offense of conviction establishes that death or serious bodily
injury resulted from the use of the substance.” U.S. SENTENCING GUIDELINES MANUAL §
2D1.1(a)(2) (1998).
      122
          Huskey, 137 F.3d at 291; United States v. Smith, 13 F.3d 860, 863 n.5
(5th Cir. 1994). For this reason, Garcia’s and Mendez’s assertions, without
supporting argument, that their sentences were imposed in error because the
district court did not adhere to the Federal Rules of Evidence at the so-called
cause of death hearing are meritless.

      123
            United States v. Kelley, 140 F.3d 596, 609 (5th Cir. 1998).
      124
            United States v. Ashburn, 20 F.3d 1336, 1349 (5th Cir. 1994).
      125
            United States v. Parker, 133 F.3d 322, 329 (5th Cir. 1998).

                                        54
causation or reasonable foreseeability” such that a defendant can

“be held responsible for overdose deaths if the government could

show a reasonable medical probability that heroin supplied by [the

defendant] caused the deaths.”126

     Dr. William Rohr, the medical examiner who performed the

autopsies of Malina and Hill, testified that there was a reasonable

medical probability          that   the   heroin    used    by    Hill    and   Malina

proximately caused their deaths, and the defendants offered no

evidence to refute this expert testimony.                 Dr. Mark Andrew Krause,

the medical examiner who performed the autopsy of Baker, testified

that there was a reasonable medical probability that heroin and

cocaine, in some combination, caused Baker’s death, i.e., that it

is more likely than not that Baker would not have died had she not

ingested the cocaine and heroin, even though the proximate cause of

death was the pulmonary embolism.

     Alfonzo Meza essentially attempts to argue a standard which we

have already rejected for purposes of sentencing under section

2D1.1(a)(2), that the drugs supplied by the defendant must be “‘a

direct     cause   of   death,      not   a    possible    or    remote   cause.’”127

Although Dr. Krause stated that he could not say that the heroin

Baker ingested alone caused her death, his testimony that the

heroin and cocaine in combination contributed to or caused Baker’s



     126
           Carbajal, 290 F.3d at 283, 284.
     127
           See id. at 284.

                                          55
death is sufficient to support the district court’s finding that

cocaine and heroin together caused the death of Baker.128    Again,

the defendants offered no rebuttal evidence to the contrary.

     Accordingly, based on our review of the record, we conclude

that the district court did not clearly err in finding that heroin

caused the deaths of Hill and Malina and that cocaine and heroin

together caused the death of Baker, such that Alfonzo Meza was

properly sentenced on the basis of these users’ deaths pursuant to

U.S.S.G. § 2D1.1(a)(2).

                                      2.

     Arturo Meza argues that the district court erred in admitting

evidence offered by the government at the cause of death hearing of

cocaine allegedly supplied by the defendants in connection with the

death of Erin Baker as alleged in Count 27.   He contends that this

was error because it differed from the factual basis offered for

Baker’s death in the PSR, to which the government did not object,

and that the government therefore waived any error arising from

discrepancies on this point in the PSR.

     We review challenges to the admission of evidence for abuse of

discretion only, subject to a harmless error analysis.129   We have

held that the government waived any error as to discrepancies in

the findings in a PSR regarding drug quantity and equivalencies,



     128
           See id. at 286.
     129
           See Powers, 168 F.3d at 748.

                                      56
which the district court had accepted in making its calculations,

by failing to object to the findings in the PSR before the district

court.130    Arturo Meza offers a unique spin on this holding, arguing

that the district court erred in allowing the government to offer

evidence that Erin Baker died from cocaine or heroin when the PSR

provides only that her death resulted from heroin use and the

government offered no objection to this finding in the PSR.131

      The district court did not abuse its discretion in allowing

the government to present evidence in support of findings beyond

those contained in the PSR.          Although it is well-settled that “a

district court may adopt the facts contained in a PSR 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,”132 the district court is not

limited     at   sentencing    to   the    findings   in   the   PSR   and    the

evidentiary bases therefor.         The authority upon which Arturo Meza

relies is inapposite, holding that the government waives its right

to challenge on appeal the district court’s findings where the

district court adopted the findings of the PSR and the government




      130
            United States v. Smallwood, 920 F.2d 1231, 1235 n.1 (5th Cir. 1991).
      131
          On appeal, Arturo Meza does not claim that he and his co-conspirators
were not the source of the cocaine ingested by Baker.
      132
            United States v. Cabrera, 288 F.3d 163, 173-74 (5th Cir. 2002).

                                         57
failed to object to the relevant findings in the PSR in the

district court.133

      Moreover, the district court provided the defendants with time

in   the    course    of   the   hearing     to    prepare     to   challenge   the

government’s evidence regarding cocaine distribution and use once

the government indicated its intention to present this evidence

following Dr. Krause’s testimony that Baker’s death was caused by

the ingestion of a combination of cocaine and heroin.                  Under these

circumstances, the district court did not abuse its discretion in

admitting      evidence    at    the   cause      of   death   hearing   that   the

defendants supplied cocaine which caused Baker’s death.

                                        3.

      Pineda argues that the district court erred in denying his

objection to the portions of the PSR in which his base offense

level was calculated to be 38 pursuant to U.S.S.G. § 2D1.1(a)(2).

He contends that he was not involved with the deaths of Milan

Malina (Count 6), George Wesley Scott (Count 9), Rob Hill (Count

12), or Erin Baker (Count 27) or the serious bodily injury to

Daniel Mierek (Count 16).              Pineda argues that the government

presented no evidence that he was involved in the conspiracy at the

time the deaths of Malina, Scott, and Hill occurred.                      He also

asserts, without supporting argument, that the government presented




      133
            See Smallwood, 920 F.2d at 1235 n.1.

                                        58
insufficient evidence of causation regarding the deaths of Malina,

Hill, Scott, and Baker and the injury to Mierek.

      We    have   already    determined    that   there   was   insufficient

evidence to convict Pineda of Counts 6 and 9, and, although

“acquittal is not a barrier to consideration of the underlying

conduct at sentencing so long as that conduct was proven by a

preponderance of the evidence,”134 under the circumstances presented

here, Pineda’s involvement in the conspiracy prior to August 1997

was not even proven measured against this lower standard.                 As to

the death of Hill (Count 12) and Baker (Count 27), however, Pineda

has shown no clear error in the district court’s finding that

Pineda was criminally responsible for the drugs which resulted in

these users’ deaths.         We have found, based on a reasonable doubt

standard, that there was sufficient evidence to convict Pineda

based on Pinkerton liability on Counts 12 and 27, and there is

likewise sufficient evidence in the record on which to sentence

Pineda for his involvement in the conspiracy which resulted in

these users’ deaths.135       Moreover, based on the discussion above as


      134
            United States v. Wells, 262 F.3d 455, 467 n.16 (5th Cir. 2001).
      135
          Cf. United States v. Alarcon, 261 F.3d 416, 423 n.3 (5th Cir. 2001)
(“Bearing in mind that we affirmed Ruben’s and Llama’s convictions for using a
minor, we need not consider the contention that their increased sentences for
using a minor should be vacated because there is insufficient evidence. The
burden of proof for affirming their convictions is beyond a reasonable doubt,
while the burden of proof in sentencing is a preponderance of the evidence.”),
cert. denied, 122 S. Ct. 854 (2002).
      As to the evidence concerning the injury to Mierek, we need not consider
whether the district court’s factual findings as to the cause of his injuries are
supported by sufficient evidence, because any error would be harmless. Even if
Mierek’s injury charged under Overt Act 20 in Count 1 of the indictment had not

                                       59
to Alfonzo Meza’s challenges to his sentences and our conclusion

that sufficient evidence exists in the record to support Pineda’s

convictions      on    Counts     12        and   27   on   the      basis   of

Pinkerton liability, we conclude that the district court did not

clearly err in finding by a preponderance of the evidence that the

drugs charged in the respective counts caused the deaths of Hill

and Baker.136

                                       4.

      Mendez argues that there is insufficient evidence to tie him

to a cocaine conspiracy and so insufficient evidence to sentence

him for the deaths of victims alleged in Counts 6, 9, 12, and 27,

particularly Baker’s death alleged in Count 27. Mendez also argues

that the district court erred in allowing the admission through a

government      witness   of    the    inherently      unreliable,     redacted

statements of Jose Meza in violation of Mendez’s Fifth Amendment

rights as developed in Bruton.         Based on our rejection of Mendez’s

challenges to his convictions on these same grounds, we reject his

points of error.




been used to sentence Pineda, a review of the PSR demonstrates that Pineda’s
combined adjusted offense level for purposes of sentencing would remain
unchanged. See United States v. Kings, 981 F.2d 790, 795 n.11 (5th Cir. 1993).

      136
          See Carbajal, 290 F.3d at 284 (noting but declining to apply to the
facts of the case before it that the Sixth Circuit had held, in “a situation in
which the defendant played no direct role in distributing or manufacturing the
drugs that allegedly caused the deaths,” that, “before the district court may
enhance a defendant’s sentence under § 841(b)(1)©) based solely on the conduct
of a coconspirator, the court must find that the coconspirator’s conduct was (1)
in furtherance of the conspiracy and (2) reasonably foreseeable”).

                                       60
C. Denial of acceptance of responsibility

     Pineda argues that the district court erred in denying him a

two-level decrease for acceptance of responsibility pursuant to

U.S.S.G. § 3E1.1, where he was willing to plead guilty to Count 1

prior to trial but wanted to challenge any sentencing enhancement

under 21 U.S.C. § 841(b)(1) and U.S.S.G. § 2D1.1 and to challenge

the rulings on his pretrial motions to dismiss on double jeopardy

grounds and to suppress.        He notes that he has pled guilty in other

proceedings to several of the charges alleged in Count 1 and argues

that he has admitted the essential elements of guilt from the

start.      Thus, he contends that this is the rare situation in which

a defendant is not precluded from reduction for acceptance of

responsibility even though he exercised his right to trial.

     While we generally review a district court’s factual finding

under      the   Guidelines   for   clear   error,   “[a]   district      court's

determination of whether a defendant is entitled to a reduction of

his offense level for acceptance of responsibility is reviewed with

even more deference than the pure ‘clearly erroneous’ standard.”137

As such, “[w]e will affirm a sentencing court’s decision not to

award a reduction under U.S.S.G. § 3E1.1 unless it is ‘without

foundation.’”138




     137
            United States v. Brenes, 250 F.3d 290, 292 (5th Cir. 2001).
     138
            United States v. Anderson, 174 F.3d 515, 525 (5th Cir. 1999).

                                       61
      This is not one of the rare situations in which a defendant

who put the government to its proof at trial is nevertheless

entitled to a reduction for acceptance of responsibility.               At the

very least, Pineda’s suppression issue, which relates to his

factual guilt, his failure to debrief the probation officer, and

his    challenge     to     the    substantive     counts     against     him,

notwithstanding his offer to plead guilty to the conspiracy count,

distinguish this case from those in which such a reduction would be

warranted.139

      Given our deferential standard of review, the district court

did not commit reversible error in denying Pineda a two-level

decrease for acceptance of responsibility.

D. Application of the grouping rules to determine Pineda’s sentence

      Pineda also argues that the district court erred in denying

his objections to the paragraphs of the PSR wherein five levels

were added to his base offense level pursuant to U.S.S.G. §§ 3D1.2

and 3D1.4.      He argues that all of his violations of the drug

statutes    should   have   been   grouped   together    under   U.S.S.G.    §

3D1.2(d) because they involve “substantially the same harm within

the meaning of” section 3D1.2.140

      139
          Compare United States v. Brace, 145 F.3d 247, 264-65 (5th Cir. 1998)
(en banc); Fells, 78 F.3d at 171-72; United States v. Maldonado, 42 F.3d 906,
913-14 (5th Cir. 1995); United States v. Montes, 976 F.2d 235, 241 (5th Cir.
1992).
      140
          All the defendants generally move to adopt the arguments of the other
defendants by reference pursuant to Rule 28(i), but Mendez explicitly seeks to
adopt Pineda’s argument by reference. However, “challenges to the application
of the Sentence Guidelines are generally fact-specific and cannot be adopted by

                                      62
      We “review de novo the district court’s application of the

Sentencing Guidelines grouping rule.”141           On this review, “[t]he

sentence will be upheld if it was imposed as the result of ‘a

correct application of the guidelines to factual findings which are

not clearly erroneous.’”142

      U.S.S.G. § 3D1.2 provides:

            All counts involving substantially the same harm
      shall be grouped together into a single Group. Counts
      involve substantially the same harm within the meaning of
      this rule:
            (a) When counts involve the same victim and the same
      act or transaction.
            (b) When counts involve the same victim and two or
      more acts or transactions connected by a common criminal
      objective or constituting part of a common scheme or
      plan.
            (c) When one of the counts embodies conduct that is
      treated as a specific offense characteristic in, or other
      adjustment to, the guideline applicable to another of the
      counts.
            (d) When the offense level is determined largely on
      the basis of the total amount of harm or loss, the
      quantity of a substance involved, or some other measure
      of aggregate harm, or if the offense behavior is ongoing


reference pursuant to Fed. R. App. P. 28(i).” Morrow, 177 F.3d at 302 n.3. We
have recognized an exception to this rule where the challenge raises only a
general question as to the application or interpretation of the Sentencing
Guidelines as to all defendants and so “does not require us to make any
fact-specific inquiries.” Id. How the district court grouped the specific
counts for which each defendant was convicted, however, is fact-specific as to
each defendant and so does not fit within this exception. See Baptiste, 264 F.3d
at 586 n.6. Notably, Pineda was charged in and convicted of Counts 1, 6, 9, 12,
14-16, 18-25, and 27-28 and sentenced for Counts 1, 6, 9, 12, 18-25, and 28,
while Mendez was charged in, convicted of, and sentenced for Counts 1, 6, 9, 12,
and 27. As such, because Mendez, like the other defendants, inadequately argued
this issue in his own brief, he has waived this issue on appeal. See Trevino v.
Johnson, 168 F.3d 173, 181 n.3 (5th Cir. 1999).

      141
          United States v. Lyckman, 235 F.3d 234, 237 (5th Cir. 2000), cert.
denied, 532 U.S. 986 (2001).
      142
          United States v. Leonard, 61 F.3d 1181, 1185 (5th Cir. 1995) (quoting
United States v. Ponce, 917 F.2d 841, 842 (5th Cir. 1990)).

                                      63
     or continuous in nature and the offense guideline is
     written to cover such behavior.143

We have explained that “Section 3D1.2 divided offenses into three

categories regarding grouping: (1) those to which the section

specifically applies; (2) those to which the section specifically

does not apply; and (3) those for which grouping may be appropriate

on a case-by-case basis.”144

     Pineda argues that the district court erred in not grouping

all of his counts of conviction together pursuant to U.S.S.G. §

3D1.2(d),     obviating     the    application      of   a     five-level       increase

pursuant     to    U.S.S.G.       §   3D1.4,     because        they      all    involve

substantially      the    same    harm    and   because        he   was    not   proven

responsible for any deaths alleged in Counts 6, 9, 12, and 27 and

should therefore have been sentenced solely on the basis of drug

type and quantity.            Pineda also argues that, even if he is

responsible for the deaths under Counts 6, 9, 12, and 27,                       U.S.S.G.

§ 3D1.2(d) applies because his offense behavior was ongoing or

continuous in nature and the relevant offense guideline, U.S.S.G.

§ 2D1.1(a)(2), is written to cover such behavior, providing a base

offense level of 38 “if the defendant is convicted under 21 U.S.C.

§ 841(b)(1)(A), (b)(1)(B), or (b)(1)©), or 21 U.S.C. § 960(b)(1),

(b)(2), or (b)(3), and the offense of conviction establishes that

death or serious bodily injury resulted from the use of the


     143
           U.S. SENTENCING GUIDELINES MANUAL § 3D1.2 (1998).
     144
           United States v. Salter, 241 F.3d 392, 394 (5th Cir. 2001).

                                          64
substance.”145       Moreover, section 2D1.1 is an offense guideline

explicitly covered by section 3D1.2.146                Therefore, Pineda argues

that his total offense level should have been 38 pursuant to

U.S.S.G. §§       3D1.2(d)     and    2D1.1(a)(2)     and    not      43   pursuant    to

U.S.S.G. § 3D1.4.

      The district court grouped Counts 1, 14-15, 18-25, and 28

together pursuant to section 3D1.2(b) but formed five other groups

containing Count 1 and each of Counts 6, 9, 12, 16, and 27, because

these were characterized by the death or serious bodily harm caused

to the user of the drugs alleged therein.147                The district court’s

grouping resulted in six groups, with adjusted offense levels

ranging from 34 to 38, which, pursuant to U.S.S.G. § 3D1.4,

resulted in a greater adjusted offense level of 38, to which five

units were added, to reach a total offense level of 43.                           This

offense level mandates a life sentence.

      We have, however, reversed Pineda’s convictions for Counts 6

and 9. Even assuming the district court correctly applied sections

3D1.2 and       3D1.4    to   group   Pineda’s     counts    of    conviction,        our

decision vacating his sentence on these counts reduces the number

of groups and correspondingly the number of units by two.                     As such,


      145
            U.S. SENTENCING GUIDELINES MANUAL § 2D1.1(a)(2) (1998).
      146
            Id. § 3D1.2.
      147
          See id. § 3D1.2, cmt. n.4 (“When one count charges a conspiracy or
solicitation and the other charges a substantive offense that was the sole object
of the conspiracy or solicitation, the counts will be grouped together under
subsection (b).”).

                                           65
the total offense level pursuant to section 3D1.4 would be 41, not

43, which, with Pineda’s placement in Criminal History Category I,

provides for a range of 324-405 months and not a mandatory life

sentence.      As such, we must reverse Pineda’s sentences and remand

for resentencing.

      In     order   to   provide    guidance      to   the     district    court    on

resentencing, however, we address the issue and conclude that the

district court did not err in its grouping analysis.                  The district

court       correctly     looked    for     guidance       in    interpreting       the

applicability of section 3D1.2(d) to the background commentary to

section 3D1.2, which in turn references the Introductory Commentary

to Chapter 3, Part D of the Sentencing Guidelines.148                 The district

court, guided by the analysis offered by the probation officer,

concluded that section 3D1.2 does not account for multiple counts

of   death     resulting    from    drug    use,    such    that   the     prevailing

commentary lies in the Sentencing Commission’s observation that

“[c]ases involving injury to distinct victims are sufficiently

comparable, whether or not the injuries are inflicted in distinct

transactions, so that each such count should be treated separately

rather than grouped together.”149                  However, this statement is

followed by the instruction that “[c]ounts involving different

victims (or societal harms in the case of ‘victimless’ crimes) are


      148
           See id. § 3D1.2, cmt. background; see also id. ch. 3, pt. D,
introductory cmt.
      149
            Id. § 3D1.2, cmt. background (1998)

                                           66
grouped together only as provided in subsection (c) or (d).”150           And

section 3D1.2(d) provides that “[c]ounts involve substantially the

same harm within the meaning of this rule: ... if the offense

behavior is      ongoing   or   continuous   in   nature   and   the   offense

guideline is written to cover such behavior.”151

     At sentencing, the probation officer agreed that Pineda’s

offense conduct was ongoing or continuous in nature.             However, he

argued that section 2D1.1(a)(2) was not written to cover offense

conduct, such as Pineda’s, causing multiple deaths because it

simply provides a base offense level of 38 if “the offense of

conviction establishes that death or serious bodily injury resulted

from the use of the substance.”        Therefore, the offense guideline

does not allow the court to take into account more than one death.

The district court agreed with the probation officer and determined

that section 3D1.2(d) does not cover deaths and does not allow for

aggregating multiple deaths.

     Pineda responds that section 2D1.1(a)(2) was written to cover

the harm caused by the use of the controlled substance at issue.

He notes that section 2D1.1(a)(2) does not provide for the higher

base offense level only “if one death occurs” or “if multiple

deaths occur.”




     150
           Id.
     151
           Id. § 3D1.2(d) (1998).

                                     67
     We agree with the district court that section 3D1.2(d) does

not apply because the offense guideline, U.S.S.G. § 2D1.1(a)(2), is

not written to cover such behavior, i.e., multiple counts alleging

that the deaths of distinct victims resulted from the use of the

drugs charged.152      Accordingly, we are guided by the Sentencing

Commission’s observation that, unless sections 3D1.2(c) or 3D1.2(d)

applies, counts involving different victims should not be grouped

together.153     Our conclusion is further supported by the Sentencing

Commission’s commentary that a rule requiring the grouping together

of the stabbing of three prison guards in a single escape attempt

was rejected because “it probably would require departure in many

cases in order to capture adequately the criminal behavior.”154

Given the operation of section 2D1.1(a)(2), we are persuaded that

holding    section    3D1.2(d)   to   require     grouping   multiple    counts

involving the deaths of distinct drug users would require departure

in order to capture adequately the criminal behavior, and so the

offense guideline, U.S.S.G. § 2D1.1(a)(2), is not written to cover

the behavior for which Pineda was convicted in multiple counts.

     We vacate Pineda’s sentences and remand for resentencing on

Counts 1, 12, 14-15, 18-25, and 27-28 consistent with this opinion.




     152
           Cf. United States v. Gist, 101 F.3d 32, 34 (5th Cir. 1996).
     153
           Id. § 3D1.2, cmt. background (1998).
     154
           Id.

                                      68
E. Determination of relevant conduct for sentencing purposes

     Hilario Solis argues that the government failed to present any

competent evidence as to the quantity of two kilograms of cocaine

attributed to him as relevant conduct. Mendez likewise argues that

there is no corroborating evidence that he was in the conspiracy or

chain of supply for the drugs that caused the users’ deaths

alleged in Counts 6, 9, 12, or 27, on the basis of which he was

sentenced.     He argues that the district court erred in failing to

make individualized findings of his relevant conduct.

     We review the district court’s factual determination of a

defendant’s relevant conduct for sentencing purposes for clear

error only.155     To count as relevant conduct under the guidelines,

“[i]t is not necessary for the defendant to have been charged with

or convicted of carrying out the other acts before they can be

considered     relevant      conduct,”    although    “the   conduct   must    be

criminal.”156 Additionally, “[i]t is well established that relevant

conduct under the sentencing guidelines includes all reasonably

foreseeable      acts   of     coconspirators    in    furtherance     of     the

conspiracy.”157

     It is also well-settled that “a district court may adopt facts

contained in a Presentence Report (PSR) without further inquiry if



     155
           Cooper, 274 F.3d at 238.
     156
           Anderson, 174 F.3d at 526.
     157
           Cooper, 274 F.3d at 241.

                                         69
the facts have an adequate evidentiary basis and the defendant does

not present rebuttal evidence.”158          Here, the district court relied

upon the findings of relevant conduct in Hilario Solis’s PSR, which

had an adequate evidentiary basis for the two kilograms of cocaine

attributed to Hilario Solis and to which Hilario Solis offered no

rebuttal evidence.        Under these circumstances, the district court

properly adopted the PSR and relied upon the information contained

therein to make its factual findings.159              Moreover, because the

relevant conduct finding challenged here did not affect Hilario

Solis’s combined adjusted offense level, any error was harmless.160

      As with Hilario Solis, the district court made sufficient

individualized findings as to Mendez by adopting the PSR, to which

Mendez offered no rebuttal evidence.            Under these circumstances,

the district court, which had heard all of the evidence presented

against Mendez and his co-conspirators at trial, did not err in its

determination of Mendez’s relevant conduct.161

      We find no clear error in the district court’s determination

of relevant conduct for purposes of sentencing Hilario Solis or




      158
            Peters, 283 F.3d at 314.
      159
            See United States v. Freeman, 164 F.3d 243, 251 (5th Cir. 1999).
      160
          See Kings, 981 F.2d at 795 n.11; accord United States v. Cade, 279 F.3d
265, 273 (5th Cir. 2002) (“The error is harmless only if the party defending the
sentence persuades us that the district court would have imposed the same
sentence absent the erroneous factor.”).
      161
            See Freeman, 164 F.3d at 251.

                                       70
Mendez.    The sentences imposed on these defendants are affirmed

over these challenges.

                               IV.

     For the foregoing reasons, we AFFIRM the convictions and

sentences of Jose Solis, Garcia, Favela, Alfonzo Meza, Arturo Meza,

Hilario Solis, Mendez, and Jose Meza, and the convictions of Pineda

on Counts 1, 12, 14-15, 18-25, and 27-28.     However, we REVERSE

Pineda’s convictions on Counts 6 and 9, VACATE his sentences on

Counts 1, 6, 9, 12, 14-15, 18-25, and 27-28, and REMAND for entry

of a judgment of acquittal on Counts 6 and 9 and for resentencing

on Pineda’s remaining counts of conviction consistent with this

opinion.




                                71
