                      UNITED STATES COURT OF APPEALS
                           For the Fifth Circuit



                               No. 99-10932



                        UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,


                                  VERSUS


        JULIE JOHNSON; RAYMOND BULLARD, also known as Frosty;
                        and ROY LEE BRADFORD,

                                                   Defendants-Appellants.




            Appeals from the United States District Court
                  For the Northern District of Texas
                            (4:98-CR-217-13-Y)
                            February 22, 2001

Before HIGGINBOTHAM and DeMOSS, Circuit Judges, and KENT,* District
Judge.

PER CURIAM:**

       Defendants-Appellants Julie Johnson, Raymond Bullard, and Roy

Lee    Bradford   (collectively     “the    appellants”)     appeal   their

convictions     and   sentences   arising   from   various    drug-related

  *
   District Judge of the Southern District of Texas, sitting by
designation.
  **
    Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
violations.     Because the district court did not commit reversible

error, we affirm.



                               I. BACKGROUND

      On   December   22,   1998,   a   grand     jury   returned    a   42-count

indictment against the appellants and several other individuals.

The indictment charged the appellants as members of a wide-ranging

conspiracy to distribute quantities of crack, powder cocaine, and

heroin.

      Ultimately, the three appellants were tried together and were

convicted and sentenced on various counts.                To establish their

guilt, the government submitted, among other things, tapes of

telephone    conversations    between       the   appellants   and   other   co-

conspirators, suggesting the sale and distribution of controlled

substances.     In addition, the government’s case included evidence

seized by the police from a traffic stop of Bullard’s vehicle.

That evidence consisted of several grams of crack, cocaine, and

heroin, which were discovered behind the vehicle’s dashboard by a

canine unit.1

      Both Bradford and Bullard were found guilty of conspiracy to

possess with intent to distribute, possession with intent to

distribute, and use of a communication facility to facilitate the

commission of the conspiracy.       As for Johnson, the jury was unable

  1
   Bullard filed a motion to suppress, which the district court
denied.

                                        2
to reach a verdict with respect to the conspiracy count, but found

her guilty of two counts of use of a communication facility to

facilitate the commission of the conspiracy.1

         This appeal followed.



                                 II. DISCUSSION

         The individual appellants each raise various points of error.

We review them in turn.



A.       Bullard

         Bullard    raises   four   issues    on   appeal.         First,    Bullard

maintains that the district court erred in admitting evidence that

he contends was obtained in violation of the Fourth Amendment.

Second,       Bullard     challenges   the    admission      of    Carl     Roberts’

testimony, which he believes was prejudicial and inflammatory in

contravention of Federal Rule of Evidence 404(b).2                        Third, he

challenges         the   sufficiency   of    the   evidence       to   sustain   his

conspiracy conviction. Finally, he insists that the district court

erred when it refused to grant a downward departure under the

sentencing guidelines.

         1.   The Stop And Seizure Did Not Violate The Fourth Amendment

         With respect to his first point of error, Bullard charges that

     1
   The indictment did not charge Johnson with possession with
intent to distribute.
     2
      Bradford raises this same issue on appeal.

                                         3
the stop and search of his vehicle by Officer Richard Van Houten,

Jr., amounted to a Fourth Amendment violation.               He makes three

arguments in support of such a conclusion.                Initially, Bullard

maintains   that   the   stop    was   pretextual   and   that   Officer   Van

Houten’s motives transformed the stop into an unreasonable seizure

under the Fourth Amendment.        Next, he argues that the duration of

his detention was unreasonable under the Fourth Amendment. Lastly,

Bullard attempts another pretext argument, insisting that the

search was an inventory search, which cannot be conducted under a

heightened level of pretext as was allegedly the case here.

      In situations involving a district court’s ruling on a motion

to suppress, we review questions of law de novo and factual

findings for clear error.        United States v. Dortch, 199 F.3d 193,

197 (5th Cir. 1999).     Moreover, we view the evidence in the light

most favorable to the party that prevailed in the district court.

Id.

      Under the Fourth Amendment, people have the right to be secure

in their persons, houses, papers, and effects, against unreasonable

searches and seizures.      The temporary detention of an individual

during an automobile stop constitutes a seizure within the meaning

of the Fourth Amendment.        Whren v. United States, 116 S. Ct. 1769,

1772 (1996).     As a result, an automobile stop is subject to the

constitutional imperative that it not be unreasonable under the

circumstances.     Id.


                                       4
       Generally, “the decision to stop an automobile is reasonable

where the police have probable cause to believe that a traffic

violation has occurred.”        Id.   Here, Bullard concedes that Officer

Van Houten had probable cause to believe that he had incurred a

traffic violation due to his cracked windshield.              See Tex. Trans.

Code Ann. § 547.613(a)(1) (“[A] person commits an offense that is

a misdemeanor if the person operates a motor vehicle that has an

object or material that is placed on or attached to the windshield

. . . that obstructs or reduces the operator’s clear view . . .

.”).    Nevertheless, he believes that the traffic violation was

merely a pretext and that Officer Van Houten only wanted to search

for drugs.      In Whren, however, the Supreme Court held that the

constitutional reasonableness of traffic stops did not depend on

the actual motivations of the individual officers involved. Whren,

116 S. Ct. at 1774.       That holding squarely forecloses the first

basis of Bullard’s argument that the stop and search violated the

Fourth Amendment.

       Likewise,    Bullard’s   second     basis   for   a   Fourth   Amendment

violation is unavailing.          He argues that the duration of his

detention was unreasonable under the Fourth Amendment, but the

facts do not support his contention.          Upon being stopped, Officer

Van    Houten   sought   Bullard’s     driver’s     license    and    insurance

information.       Within no more than five minutes of that stop and

before Officer Van Houten completed a citation for the traffic


                                       5
violation, he obtained verbal consent from Bullard to search the

vehicle.   About five to ten minutes later, a canine unit arrived

and   examined    his   vehicle,    finding        several   grams   of   various

controlled substances.

      In two recent cases, we addressed the issue of when the

duration of an automobile stop transformed it into an unreasonable

detention in violation of the Fourth Amendment.              See United States

v. Jones, 234 F.3d 234 (5th Cir. 2000); Dortch, 199 F.3d 193.                    In

both of those cases, the officers held the defendants for a

prolonged period of time, including several minutes after the

purpose    for    the   stop,    which       had    initially     justified    the

interference, had been fulfilled.              See Jones, 234 F.3d at 241;

Dortch, 199 F.3d at 198.         Here, the purpose of the stop had not

been completed, as Officer Van Houten had yet to mete out the

citation, when Bullard gave consent to search his vehicle.                    Thus,

the instant      case   is   outside   the    parameters     of   our   precedent

affording protection against unreasonable detentions that violate

the Fourth Amendment.

      Bullard’s third basis for finding a Fourth Amendment violation

merits even less attention.        That argument essentially posits that

Officer Van Houten’s search of the vehicle was an inventory search

and that such searches cannot be done under a pretext.               The Supreme

Court has observed that “an inventory search must not be a ruse for

a general rummaging in order to discover incriminating evidence.”


                                         6
Florida v. Wells, 110 S. Ct. 1632, 1635 (1990).      “An inventory

search is the search of property lawfully seized and detained, in

order to ensure that it is harmless, to secure valuable items (such

as might be kept in a towed car), and to protect against false

claims or loss or damage.”   Whren, 116 S. Ct. at 1773 n.1.      The

instant case does not involve an inventory search.   Consequently,

any argument that an inventory search cannot be accomplished under

a pretext has no bearing on this case.

     2.   The Admission Of Roberts’ Testimony Was Not An Abuse Of
          Discretion

     Bullard’s and Bradford’s second point of error is that the

district court erred in admitting Roberts’ testimony at trial.

Roberts supplied drugs to several of the alleged conspirators and

testified about drug transactions involving Bullard from 1994

through 1996 and Bradford from 1992 to 1997.      Both Bullard and

Bradford contend that because much of Roberts’ testimony concerned

activities that predated many of the events in the present case,

that testimony was extrinsic to the charges in the indictment.    As

a result, they charge that his testimony should not have been

admitted under Federal Rule of Evidence 404(b).

     We review the district court’s decision to admit Roberts’

testimony for an abuse of discretion.     United States v. Garcia

Abrego, 141 F.3d 142 (5th Cir. 1998).     Rule 404(b) provides in

pertinent part that “[e]vidence of others crimes, wrongs, or acts

is not admissible to prove the character of a person in order to

                                7
show action in conformity therewith.”         Such evidence, however, may

be allowed for a litany of other reasons, such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident.              Fed. R. 404(b).         Moreover,

“[u]ncharged offenses arising from the same transaction or series

of transactions charged in the indictment . . . are not barred by

the rule.”      United States v. Krout, 66 F.3d 1420, 1431 (5th Cir.

1995).     “More specifically, evidence of acts committed pursuant to

a conspiracy and offered to prove the defendant’s membership or

participation in the conspiracy are not extrinsic evidence.”                Id.

Thus, to avoid the strictures of Rule 404(b), the government must

suggest a “logical hypothesis of the relevance of the evidence for

a   purpose    other    than   to   demonstrate   propensity    to   act   in   a

particular manner.”        Id.

      We believe the government has done that.                 The government

maintains that Roberts’ testimony alluded to acts that were not

extrinsic but that were part and parcel of the charged conspiracy.

Roberts purchased drugs from Bradford and sold them to Bullard,

helping form the foundation of the conspiracy charged in the

instant case.          Roberts’ testimony revealed how the conspiracy

developed and how he helped establish several of the conspirators’

relationships.     Accordingly, we find no abuse of discretion by the

district court.

      3.      There Was Sufficient Evidence To Convict Bullard


                                        8
       Although Bullard argues that the government failed to produce

sufficient evidence that he was involved in a conspiracy, the focus

of his ambiguous brief seems to be that there was a variance

between    the     allegations    in    the     indictment       and   the   evidence

supporting       the    conspiracy     count.         Bullard    asserts     that   the

indictment alleged a singular conspiracy but that the evidence

proved multiple conspiracies.           According to Bullard, that variance

requires reversal.

       We review a claim of variance for harmless error and will

reverse only if a defendant shows that his substantial rights were

prejudiced.       United States v. Lokey, 945 F.2d 825, 832 & n.1 (5th

Cir.    1991).         “‘With   variance,       our    concern    is   whether      the

indictment, assuming it has otherwise alleged the elements of the

offense, has so informed a defendant that he can prepare his

defense without surprise and has protected him against a second

prosecution for the same offenses.’”                  Id. at 832 (quoting United

States v. Cochran, 697 F.2d 600, 604 (5th Cir. 1983)).                     A material

variance may occur when the variation between proof and indictment

does not effectively modify an essential element of the offense

charged.     Id.       To require reversal based on variance between the

proof and indictment, Bullard must prove: 1) that the evidence at

trial actually established more than one conspiracy, and 2) that

the variance affected a substantial right.                       United States v.

Franklin, 148 F.3d 451, 459 (5th Cir. 1998).


                                          9
       Having reviewed the record, we see no material variance that

affected a substantial right.                   Although Bullard contends that,

besides Bradford, he did not interact with any other alleged

conspirator, “‘[t]here is no requirement that every member must

participate in every transaction to find a single conspiracy.’”

United States v. Morris, 46 F.3d 410, 416 (5th Cir. 1995) (quoting

United States v. Richerson, 833 F.2d 1147, 1154 (5th Cir. 1987)).

A single conspiracy may exist where a key man is involved in and

directs illegal activities, while various combinations of other

participants exert individual efforts toward a common goal.                               Id.

The evidence revealed that Bradford played a central role in

distributing drugs to the alleged conspirators, including Bullard,

who then resold those drugs.                  Those alleged conspirators all had

the common       goal     of      deriving    “personal     gain     from    the    illicit

business of buying and selling cocaine” and other drugs.                            Id. at

415.   Finally, even if what the government proved was not actually

a single conspiracy, the indictment sufficiently apprised Bullard

to   afford      him    the       opportunity    to    present   a   defense,       and    no

prejudice resulted.

       4.     There Is No Jurisdiction Over Bullard’s Appeal Of His
              Sentence

       Bullard’s final point of error concerns the district court’s

refusal     to    grant       a    downward     departure    under     the       sentencing

guidelines.            Statutorily,      we     have    jurisdiction        to    review   a

defendant’s challenge of his sentence in any of four situations: 1)

                                              10
if the sentence was imposed in violation of law; 2) if the sentence

was   imposed    as   a   result   of   an   incorrect   application   of   the

guidelines; 3) if the sentence was due to an upward departure; and

4) if the sentence was imposed for an offense not covered by the

guidelines and is plainly unreasonable.              18 U.S.C. § 3742(a);

United States v. DiMarco, 46 F.3d 476, 477-78 (5th Cir. 1995).

Furthermore, “appellate review is available for claims that the

district court erroneously believed that it lacked authority to

depart from the sentencing guideline range.”             Id. at 478.   Bullard

makes no such claims.       He bases his appeal for a downward departure

on his age and ill health.              That does not suffice to confer

jurisdiction, and this issue is dismissed for lack of jurisdiction.



B.    Bradford

      Besides the identical issue concerning Roberts’ testimony that

we found unavailing in Bullard’s appeal, Bradford contends that the

district court should have only held him accountable for less than

250 milligrams of cocaine base instead of the 79,400.97 kilograms

of marijuana equivalency for which he was sentenced.             He presents

two arguments for this proposition: 1) there was no direct evidence

tying him to any of the drugs, unlike with his co-defendants who

were found in possession of large quantities; and 2) the witnesses

who testified that he possessed large quantities of drugs were

unreliable.


                                        11
      We review the district court’s interpretation or application

of the guidelines de novo and its factual findings for clear error.

United States v. Huerta, 182 F.3d 361, 364 (5th Cir. 1999).             “As

long as a factual finding is plausible in light of the record as a

whole, it is not clearly erroneous.”          Id.

      Upon reviewing Bradford’s arguments and the record, we find no

clear error on the part of the district court.                Bradford was

convicted of several counts of possessing cocaine, cocaine base,

and heroin.     Those convictions could not have been predicated

solely on the trace drugs that were found in Bradford’s garbage and

that totaled 250 milligrams.      The jury must have credited some of

the so-called unreliable testimony against Bradford to find him

guilty of those possession counts.       Hence, the district court did

not clearly err in considering those witnesses’ testimony. Indeed,

a sentencing court may rely on the debriefings of co-defendants in

assessing a defendant’s sentence.        See United States v. Posada-

Rios, 158 F.3d 832, 879 n.24 (5th Cir. 1998).          Furthermore, there

was   corroborating   evidence,   in    the    form   of   taped   telephone

conversations, that implicated Bradford in the drug transactions.

Consequently, the district court did not clearly err when it

attributed the 79,400.97 kilograms of marijuana equivalency to

Bradford when it computed his sentence.



C.    Johnson


                                   12
     Johnson raises two issues on appeal.               Her first issue charges

that there was insufficient evidence to convict her as to the two

counts for use of a communication facility, i.e., a telephone, to

facilitate    the    commission     of    the   conspiracy          to   distribute   a

controlled substance.           Second, she maintains that the district

court should have held her responsible only for 31 grams of cocaine

base, rather than the 226 grams for which she was sentenced.

     1.     There Was Sufficient Evidence To Convict Johnson

     With respect to the first point of error, Johnson proffers

three arguments. First, she maintains that because the jury failed

to convict her on the conspiracy charge, there could not have been

sufficient evidence to convict her of the using a telephone in

furtherance of a drug conspiracy counts.                 Similarly, she insists

that the jury’s failure to convict her on the conspiracy count

establishes    the    jury’s     disbelief      of    some     of    the   government

witnesses whose testimony supported the use of a telephone in

furtherance    of    a   drug    conspiracy         counts.     Finally,      Johnson

independently attacks the credibility of those witnesses.

     In reviewing challenges to the sufficiency of the evidence, we

view the evidence presented and the reasonable inferences drawn

from the evidence in the light most favorable to the verdict.

Glasser v. United States, 62 S. Ct. 457, 469 (1942).                          We must

overturn a jury verdict if no rational trier of fact could have

found the     defendant’s       guilt    of   the    offense    charged      beyond a



                                         13
reasonable doubt.        Jackson v. Virginia, 99 S. Ct. 2781, 2789

(1979).

     In United States v. Powell, 105 S. Ct. 471 (1984), the Supreme

Court confronted a situation similar to the present case.                    At

trial, a jury acquitted the defendant of conspiracy to possess

cocaine and possession of cocaine, but found her guilty of using a

telephone to facilitate those offenses.              Id. at 474.    Because of

the government’s inability to invoke review, the general reluctance

to inquire into the workings of the jury, and the possible exercise

of lenity, the Supreme Court held that inconsistent verdicts are

generally not reviewable.         Id. at 479.        Accordingly, Johnson’s

inconsistent verdict argument is without merit.

     Furthermore, we find unavailing Johnson’s arguments pertaining

to the credibility of the witnesses who testified against her.

Although those witnesses were also the basis for the government’s

drug conspiracy charge, to which the jury could not return a

verdict, “a not guilty verdict on one count does not establish any

facts favorable to the defense for the purpose of determining the

sufficiency of the evidence on the counts of conviction . . . .”

United    States   v.   Nguyen,   28   F.3d   477,    480   (5th   Cir.   1994).

Considering that the jury in the instant case did not even return

a not guilty verdict, we believe Johnson’s position to be even less

meritorious.

     As for Johnson’s independent attack on the credibility of the


                                       14
government’s witnesses, it is inadequate to support reversal. “[A]

conviction may be sustained solely on the basis of the testimony of

a coconspirator–-even a coconspirator who testifies on the basis of

a plea bargain or promise of leniency–-so long as that testimony is

not incredible as a matter of law–-that is, so long as it does not

defy the laws of nature or relate to matters that the witness could

not have observed.”     Garcia Abrego, 141 F.3d at 155-56.        Johnson

has not demonstrated that any of the testimony defied the laws of

nature or related to matters that the witnesses could not have

observed.

     2.     The District Court Did Not Clearly Err In Attributing 226
            Grams Of Cocaine Base To Johnson

     Johnson’s second point of error charges that the district

court should only have held her responsible for 31 grams of cocaine

base, rather than the 226 grams for which she was sentenced.            Her

argument is essentially a rehash of some of the arguments that she

offered with respect to her sufficiency of the evidence claim.

Specifically, she maintains that the jury’s failure to convict her

on the conspiracy count establishes the jury’s disbelief of some of

the government witnesses whose testimony established the quantity

of drugs assessed against her.          As with her sufficiency of the

evidence claim, Johnson’s second point of error is unavailing for

substantially    the   same   reasons.     In   addition,   she   has   not

demonstrated that the district court committed any clear error.




                                   15
                             III. CONCLUSION

     For   the   foregoing   reasons,   the   appellants’   judgments   of

conviction and Bradford’s and Johnson’s sentences are affirmed.

With respect to Bullard’s appeal of his sentence, that is dismissed

for lack of jurisdiction.




                                   16
