                                                           United States Court of Appeals
                                                                    Fifth Circuit
                                                                 F I L E D
                    UNITED STATES COURT OF APPEALS
                             FIFTH CIRCUIT                         July 24, 2006

                                                             Charles R. Fulbruge III
                                                                     Clerk
                             No. 04-11359


                      UNITED STATES OF AMERICA,

                                                    Plaintiff-Appellee,

                                versus

               ROY COMBS; JORGE MARTINEZ; GARY THOMAS,

                                                 Defendants-Appellants.


            Appeals from the United States District Court
                  for the Northern District of Texas
                           (3:03-CR-188-9-N)


Before JONES, Chief Judge, and BARKSDALE and BENAVIDES, Circuit

Judges.

PER CURIAM:*

      Roy Combs, Jorge Martinez, and Gary Thomas contest their

sentences for conspiring to possess, with intent to distribute,

five kilograms or more of cocaine, in violation of 21 U.S.C. § 846.

In   that regard,   Thomas   contends   the   district   court   erred    in

sentencing him to a mandatory life sentence as a repeat offender;

Combs and   Martinez maintain it erred in sentencing them under the

then-mandatory Sentencing Guidelines, in violation of United States

v. Booker, 543 U.S. 220 (2005).


      *
       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this opinion should not be published and is not precedent except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.
     Combs and Thomas also appeal their convictions, claiming: the

court erred   in    admitting     evidence     that   Martha   Flores,     a   co-

defendant, attempted to sell cocaine to a law-enforcement officer

while the trial was pending; there was insufficient evidence to

show they were part of the conspiracy to distribute cocaine; and

the court erred in denying a severance.                 In addition, Thomas

asserts there was a material variance between his indictment and

the Government’s proof at trial.

     Concerning the evidence of Flores’ cocaine sale while the

trial was pending, we note, without deciding, that Combs and Thomas

may lack standing to appeal the admissibility of this evidence.

Other courts have concluded that only the person whose "other

crimes" are at issue may raise a 404(b) challenge on appeal.                   See

United   States    v.   David,    940   F.2d   722,   736   (1st    Cir.   1991).

Assuming they do have standing, we review under a heightened abuse-

of-discretion standard the admittance in a criminal trial of

evidence under Federal Rule of Evidence 404(b) (evidence of other

crimes or wrongful acts inadmissible to show action in conformity

with crime charged).       United States v. Pompa, 434 F.3d 800, 805

(5th Cir. 2005). Under that rule, evidence of an extrinsic offense

is admissible if it is relevant to an issue other than the

defendant's   character,         and    its    probative    value     does     not

substantially outweigh       its prejudice.           E.g., United States v.

Beechum, 582 F.2d 898, 911 (5th Cir. 1978), cert. denied, 440 U.S.


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920 (1979).      Such evidence “should not be admitted solely to

demonstrate the defendant's bad character”.                     Id. at 910.    The

district court did not admit the evidence for that reason; the

evidence   did    not    relate    to       Combs’     and      Thomas’   conduct.

Furthermore,     the    district   court       gave        a    lengthy   limiting

instruction.     There was no abuse of discretion.

     Combs’ and Thomas’ sufficiency-of-the-evidence claims are

reviewed de novo.       E.g., United States v. Pennell, 409 F.3d 240,

243 (5th Cir. 2005).        Viewing the evidence in the light most

favorable to the Government, we must determine whether a rational

fact finder could have found Combs and Thomas guilty of the

conspiracy beyond a reasonable doubt.                Id.       The evidence shows:

Combs repeatedly received deliveries of one to two kilograms of

cocaine from an individual; Thomas was frequently supplied cocaine

by another, who “fronted” cocaine to Thomas, allowing him to pay

for the drugs after they were sold; and Thomas was a low-level

distributor in a long distribution chain.              A rational juror could

have found beyond a reasonable doubt that Combs and Thomas were

part of the conspiracy.

     Next, Combs and Thomas claim they should have been tried

separately because much of the evidence was inadmissable against

them individually and was inflammatory.                    The district court’s

refusal to grant a separate trial is reviewed for an abuse of

discretion.    United States v. Rubio, 321 F.3d 517, 526 (5th Cir.


                                        3
2003).    “[T]o meet this burden, a defendant must show specific and

compelling prejudice against which the district court could not

provide adequate protection, and that this prejudice resulted in an

unfair    trial”.          Id.    (internal      citation      and    quotation      marks

omitted).     Each defendant fails to do so.                    First, the district

judge gave a specific jury instruction at the close of trial that

evidence should be considered individually and separately for each

defendant.     Furthermore, there is a preference in the federal

system for joint trials for defendants who are charged together,

especially where conspiracy is alleged. See United States v. Neal,

27 F.3d 1035, 1045 (5th Cir. 1994), cert. denied, 513 U.S. 1179

(1995).    The district court did not abuse its discretion.

     Thomas also claims there was a material variance between his

indictment and the proof at trial because, although the indictment

charged     only     one       conspiracy,       the    evidence      shows       multiple

conspiracies.       A single-conspiracy verdict must be affirmed unless

the evidence, with all reasonable inferences in the Government’s

favor,    precludes        a     reasonable      jury    from    finding      a    single

conspiracy.        See United States v. Morris, 46 F.3d 410, 415 (5th

Cir.), cert. denied, 515 U.S. 1150 (1995).                      The evidence did not

preclude such a finding.

     Thomas maintains the district court erred in imposing a

repeat-offender       enhancement,       resulting        in    his    mandatory      life

sentence, because:             (1) the district judge, not the jury, found


                                             4
Thomas had two prior convictions; and (2) the Government failed to

give sufficient notice it was going to seek this penalty when it

sought this enhancement on the day of trial.                Thomas concedes the

notice was filed before trial.         As such, it complies with 21 U.S.C.

§ 851(a).     See United States v. Rice, 43 F.3d 601, 604 (11th Cir.

1995).     Furthermore,     the    Government     need   not     prove    beyond   a

reasonable doubt the existence of a prior conviction. See Apprendi

v.   New   Jersey,    530   U.S.    466,    490   (2000);      United    States    v.

Almendarez-Torres, 523 U.S. 224 (1998).              To the extent Thomas is

claiming Almendarez-Torres was wrongly decided, that claim is

foreclosed     by    circuit      precedent.       E.g.,    United       States    v.

Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct.

298 (2005).

      Finally, Combs and Martinez claim the district court erred in

sentencing them under the then-mandatory Guidelines, in violation

of Booker.    Because each preserved the error by making an objection

at sentencing pursuant to Blakely v. Washington, 542 U.S. 296

(2004), our review is for harmless error beyond a reasonable doubt.

United States v. Walters, 418 F.3d 461, 463-64 (5th Cir. 2005).

The district court imposed an alternative sentence identical to the

one imposed under the mandatory Guidelines; the former was to

become effective in the event the Supreme Court declared the

Guidelines     unconstitutional.            Therefore,     the   Government       has

satisfied its burden to show the Booker error was harmless.                       See

                                        5
United States v. Saldana, 427 F.3d 298, 314 (5th Cir.), cert.

denied, 126 S. Ct. 810 (2005).

     In his reply brief, Martinez claims reversible error because

the oral pronouncement at sentencing (sentence under mandatory

Guidelines) conflicts with the written judgment (which included the

alternative sentence). Generally, we do not consider issues raised

for the first time in a reply brief.   E.g., United States v. Brown,

305 F.3d 304, 307 n.4 (5th Cir. 2002), cert. denied, 538 U.S. 1007

(2003).   In any event, there is no conflict:   each sentence was the

same.

                                                         AFFIRMED




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