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

                                                                            FILED
                                                                           April 16, 2013

                                       No. 12-50070                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff - Appellee
v.

RICHARD RAMOS; RAY ANTHONY LOPEZ, also known as Raymond
Anthony Lopez,

                                                  Defendants - Appellants



                   Appeals from the United States District Court
                         for the Western District of Texas
                               U.S.D.C. 6:10-CR-297


Before DeMOSS, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       Following a four-day trial, a jury convicted Richard Ramos and Ray
Anthony Lopez with conspiracy to possess with intent to distribute, and to
distribute, more than five hundred grams of a substance containing
methamphetamine, in violation of 21 U.S.C. § 846 and contrary to §§ 841(a)(1),
and 841(b)(1)(A)(viii). Both defendants appeal their convictions and sentences.
Based on our review of the evidence and our discussion below, we AFFIRM the


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                      No. 12-50070

judgments of conviction, VACATE the sentences and REMAND for resentencing
consistent with this opinion.
I.      Factual Background and Proceedings Below
        As with many drug conspiracies, the record underlying these charges is
complicated and fragmented. It involves clandestine and coded telephone calls
and meetings. The record reflects information gleaned by investigators through
wiretap recordings and electronic surveillance of a number of individuals.1
Preliminarily, we note that both defendants, Ramos and Lopez, are members of
a street gang called Gardena 13 that operates in Gardena, CA, a city outside of
Los Angeles. Lopez admitted to being a longtime member of Gardena 13, and
multiple witnesses offered testimony that he is a “shot caller,” i.e. a leader, in
the gang. There are about 5,000 members of the gang, many of whom are
involved in narcotics use or sales, as is common among street gangs in Southern
California. We mention this fact as background only.
        The conspiracy as alleged by the government began in the latter half of
2009, when co-defendant Rogelio Tapia (another gang member) began
transporting large quantities of methamphetamine, hidden inside vehicles, from
Southern California to Texas. Although Tapia joined Gardena 13 as a teenager,
and had been involved in some narcotics sales then, he had moved away from
California to Temple, Texas four years earlier with his family. In 2009, Tapia
became aware of the opportunity to traffic methamphetamine from Southern
California for resale in Texas, where the drug’s value is substantially greater.
Tapia set up an arrangement with a supplier (“some guy named Jesus”) and a
middleman who would prepare the vehicles and drugs for transport (co-
defendant Albert Aquino), neither of whom are members of the Gardena 13
gang.

        1
       The original indictment listed six other co-defendants: Rogelio Tapia, Albert Aquino,
Manuel Rivera Olmos, Karina Guzman, Glenn Kapuy, and Elaine Lopez.

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                                     No. 12-50070

       Tapia ultimately made 24–30 trips from California to Texas with narcotics
before his arrest in January 2011.2 He always traveled with the drugs in
vehicles specially fitted with hidden compartments. On two occasions, law
enforcement stopped Tapia, confiscated his vehicle, and seized large quantities
of methamphetamine. Tapia was released both times. Although the bulk of his
transported methamphetamine was distributed in Texas, Tapia sold some drugs
to co-defendant Manuel Olmos, a Gardena 13 member who sold narcotics within
the Gardena area.3
       Meanwhile, law enforcement officials were conducting an ongoing
investigation of several Gardena 13 gang members in connection with unrelated
crimes, using wiretaps and visual surveillance. The investigation revealed an
unfolding situation between the Gardena 13 gang and the Mexican Mafia, a
separate criminal organization that wields a significant amount of power over
several California prisons, as well as the street gangs in the Los Angeles area.
The Mexican Mafia exerts control over smaller gangs through violence and
intimidation and requires the payment of “taxes” in return for “protection.”
Failure to pay such taxes to the Mexican Mafia can result in being placed on a
“green light” list, whereby that individual or gang is targeted for assault, up to


       2
         Tapia testified that the methamphetamine sold for $5,000 more per pound in Texas
than in Gardena. His business grew from carrying eight ounces per trip to as much as
fourteen pounds. Tapia was given the drugs on credit from his supplier in Gardena, repaying
the cost upon return, and splitting the profits in half with the supplier.
       3
        The government made several seizures of methamphetamine from Tapia and Olmos
in connection with this investigation. This included:
•      6.26 kg of methamphetamine seized from Tapia’s car on March 9, 2010 in San
       Bernadino, CA while Tapia was in transit to Texas;
•      2.20 kg of methamphetamine seized from Tapia’s car on May 10, 2010 at the
       Arizona/California border while Tapia was in transit to California;
•      1.13 kg of “actual” methamphetamine seized from Tapia’s residence in Temple, TX on
       January 26, 2011; and
•      0.11 kg of methamphetamine seized from Olmos’s residence in Gardena, CA on March
       23, 2010.

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                                      No. 12-50070

and including murder. A green light hurts a gang or gang member’s ability to
engage in criminal activity without fear of interference.
       In the fall of 2009, recorded phone calls among the co-defendants and other
principal parties revealed that members of Gardena 13 believed a green light
had been placed on the gang for failure to pay taxes to the Mexican Mafia. Lopez
and another Gardena 13 member went to a meeting where the Mexican Mafia
asserted the gang would be required to pay taxes going forward, as well as
immediately pay a sum of back taxes. The Mexican Mafia also assessed a
personal tax on Lopez for making disrespectful comments. After this meeting,
recorded phone calls indicated that Lopez and other Gardena 13 members began
collecting money from other members to pay these taxes in an effort to avoid a
green light.
       Tapia testified that he contributed money to the taxes assessed against
Gardena 13.4 He paid some taxes to Olmos, and then later met with Lopez and
offered to pay the outstanding amount of the back taxes owed ($700), since he
was doing well financially and expressed concern for the well-being of the gang.
Tapia also testified that a green light could potentially hurt his ability to
distribute narcotics in Gardena. Lopez accepted Tapia’s money, although later
returned some of the contribution when he collected additional tax money from
other members.
       Testimony adduced at trial also indicates that Ramos was heavily involved
in tax collection. Co-defendant Glenn Kapuy, who was not a member of Gardena
13   but    who     nevertheless      sold    drugs    alongside      Olmos,     including
methamphetamine, testified that Ramos repeatedly exacted taxes from him, in


       4
        Tapia testified that he did not share the proceeds of his drug trafficking with other
members of Gardena 13. He described drug sales in the city of Gardena as sales by individual
members of the gang and not orchestrated by the gang. Tapia testified that he did not tell
Lopez about his trafficking to Texas, although he remarked that “it should have been obvious”
that he was dealing in narcotics.

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                                     No. 12-50070

the form of cash or drugs. One recorded phone call with Ramos suggests that he
played an important role early on in negotiating with the Mexican Mafia for a
lower tax assessment. There was no evidence presented suggesting that Tapia
and Ramos had any direct contact during the conspiracy.
       On December 14, 2010, Ramos and Lopez were charged in a superseding
indictment, along with six others, with conspiracy to possess with intent to
distribute, and to distribute, at least five hundred grams of a substance
containing methamphetamine. During the jury trial, the government presented
several recorded phone calls, quantities of seized methamphetamine, photo
documentation of Tapia’s vehicle, and the testimony of three of law enforcement
agents regarding their investigation of the conspiracy.             Additionally, two
co-defendants gave testimony: Tapia and Kapuy, both of whom had earlier
pleaded guilty to the conspiracy charges. Lopez offered testimony in his defense,
asserting he had no knowledge of the conspiracy and was not a voluntary
participant. The jury returned a verdict of guilty for both defendants. The
district court sentenced Lopez to 360 months of imprisonment and five years of
supervised release. Ramos was sentenced to 480 months imprisonment and five
years of supervised release. Both defendants’ terms of imprisonment were at the
bottom of their respective Sentencing Guidelines range.
II.    Sufficiency of the Evidence
       Both Ramos and Lopez challenge their convictions on sufficiency of the
evidence grounds.5 Where a defendant objects to the sufficiency of the evidence,
we consider “whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S.
307, 319 (1979); see also United States v. Menesses, 962 F.2d 420, 426 (5th Cir.

       5
         Both defendants moved for a judgment of acquittal at the end of the government’s
case-in-chief, as well as again before submission of the case to the jury.

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                                  No. 12-50070

1992). We view the evidence and the inferences that may be drawn in the light
most favorable to the verdict. United States v. Moreno, 185 F.3d 465, 471 (5th
Cir. 1999). Determining the weight and credibility of the evidence is within the
sole province of the jury. United States v. Martinez, 975 F.2d 159, 160–61 (5th
Cir. 1992).
      Federal law criminalizes distribution and possession with intent to
distribute a “controlled substance.” 21 U.S.C. § 841(a)(1). To establish a
conspiracy to violate § 841(a)(1), the government must prove beyond a
reasonable doubt: (1) the existence of an agreement between two or more persons
to violate narcotics laws, (2) the defendant’s knowledge of the agreement, and (3)
his voluntary participation in the conspiracy. United States v. Valdez, 453 F.3d
252, 256–57 (5th Cir. 2006). In this case, because the indictment alleges
involvement in a conspiracy to distribute a quantity greater than 500 grams of
a substance containing methamphetamine, thereby triggering punishment
within the statutory range of 21 U.S.C. § 841(b)(1)(A)(viii), a fourth element
applies, i.e., the drug quantity. United States v. DeLeon, 247 F.3d 593, 596 (5th
Cir. 2001) (citing United States v. Doggett, 230 F.3d 160, 164–65 (5th Cir. 2000)
(“If the government seeks enhanced penalties under 21 U.S.C. § 841(b)(1)(A) or
(B), the [drug] quantity must be stated in the indictment and submitted to the
[fact finder] for a finding of proof beyond a reasonable doubt.”)).
      The proof, whether direct or circumstantial, must establish beyond a
reasonable doubt that a conspiracy existed between knowing partners. United
States v. Duckett, 550 F.2d 1027, 1030 (5th Cir. 1977). The government need not
prove an overt act to show participation in a conspiracy. United States v.
Bermea, 30 F.3d 1539, 1552 (5th Cir. 1994). Mere presence at a crime scene or
association with conspirators is not enough to prove participation in a
conspiracy, but the “agreement, a defendant’s guilty knowledge and a
defendant’s participation in the conspiracy all may be inferred from the

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                                  No. 12-50070

development and collocation of circumstances.” United States v. Lentz, 823 F.2d
867, 868 (5th Cir. 1987); see also United States v. Norman, 415 F.3d 466, 471
(5th Cir. 2005).
      Ramos and Lopez do not reasonably challenge the existence of a scheme
to possess and distribute methamphetamine based upon the government’s
interception of Tapia’s vehicles and drugs en route between California and
Texas.   Instead, Ramos and Lopez contend that the government failed to
establish beyond a reasonable doubt their connections to this conspiracy
involving the other co-defendants from the indictment. They maintain that they
had no knowledge of the conspiracy, and that their actions, the collection of taxes
for payment to the Mexican Mafia in exchange for protection, were not related
to or in furtherance of Tapia’s drug conspiracy. We disagree.
      While the evidence connecting Ramos and Lopez to the conspiracy is
largely circumstantial, it nonetheless is sufficient to support the jury’s findings
of guilt. A “jury may infer a conspiracy agreement from circumstantial evidence,
and may rely upon presence and association, along with other evidence, in
finding that a conspiracy existed.” United States v. Robles–Pantoja, 887 F.2d
1250, 1254 (5th Cir. 1989); see generally United States v. Greenwood, 974 F.2d
1449, 1457 (5th Cir. 1992) (“Because secrecy is the norm in an illicit conspiracy,
the elements of the offense may be established solely by circumstantial
evidence.”).
      Tapia’s testimony was that his drug trafficking “should have been obvious”
to Lopez. Recorded phone conversations introduced at trial indicate that Lopez
was aware of the involvement of several gang members in the sale of narcotics
within the gang’s territory. At one point, surveilling officers witnessed Lopez
pick up Tapia, returning from a trip to Texas, at the Los Angeles airport along
with Olmos, a distributer of Tapia’s drugs. Kapuy also testified that he went
along with Olmos to Lopez’s house to drop off a large sum of money. Lopez

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                                        No. 12-50070

collected taxes from Tapia that allowed Tapia’s business to continue without
interference from the Mexican Mafia. Lopez admitted knowing that Tapia was
“probably” selling drugs and that the taxes were for illegitimate businesses, not
a legitimate one like his taco stand.6 He admitted that he knew the tax money
was going to the Mexican Mafia and that the people giving him tax money were
involved in the sale of narcotics. There was sufficient evidence for the jury to
have inferred Lopez’s knowledge of Tapia and Olmos’s substantial narcotics
distribution scheme, especially the portion taking place within the city of
Gardena, even if Lopez was not fully aware of every detail and participant.
       Similarly, the evidence at trial indicates that Ramos purchased, or was
given, some of Tapia’s methamphetamine through Kapuy as part of his tax
collection efforts on more than one occasion. As Kapuy purchased his drugs from
Olmos, who bought them from Tapia, the jury could reasonably conclude that
Ramos was on notice of the drug distribution conspiracy, regardless of whether
or not he knew from where the drugs originated. This evidence is sufficient to
demonstrate Ramos’s knowledge of the narcotics distribution conspiracy.7
       The final element is whether Lopez and Ramos each voluntarily
participated in the conspiracy. The defendants argue that their membership in
a gang is being used to prove “guilt by association” and imputes criminal activity
to them based only on this membership.                   We agree that proof of gang


       6
           “I have a taco stand and I wasn’t giving no money like [the taxes].”
       7
          We emphasize that we do not hold, as the dissenting opinion suggests, that “if Ramos
collected taxes assessed by the Mexican Mafia on illegal activities, then Ramos can be found
to have known of and to have agreed to participate in each of the illegal activities that was
being taxed.” Dissent Op. at 16. We do not find the evidence to be attenuated to that degree.
“Parties who knowingly participate with core conspirators to achieve a common goal may be
members of an overall conspiracy,” even in the absence of contact with other conspirators.
United States v. Richerson, 833 F.2d 1147, 1154 (5th Cir.1987) (internal quotation omitted).
Here Ramos was aware of the methamphetamine distribution conspiracy of Olmos and Kapuy
and acted in a way to facilitate this drug trade, whether or not he knew the full extent of
Tapia’s activities. He is not being tied to these activities by mere “tax collection.”

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                                       No. 12-50070

membership, without more, may not form the basis of a conspiracy conviction.
See United States v. Garcia, 151 F.3d 1243, 1245–47 (9th Cir. 1998). Yet that is
simply not this case. There is substantial evidence beyond gang membership
that connects Lopez and Ramos to the conspiracy. They do not dispute that they
organized the collection of the taxes assessed by the Mexican Mafia on Gardena
13.8 They dispute that these actions constitute furtherance of the conspiracy.
       Testimony from Tapia and the investigating officers indicate that the
Mexican Mafia taxes are seen as protection money for a street gang’s criminal
activities. Failure to pay the taxes could result in a green light being issued
against the gang, for which the constant threat of violence would interfere with
the Gardena 13 gang members’ ability to conduct criminal activities. Tapia’s
payment (indeed overpayment, as the record demonstrates he contributed far
above the amount being solicited from other Gardena 13 members) to Lopez
reliably demonstrates that he sought out this protection for his own criminal
activities, which included drug distribution in Gardena, as well as the large-
scale trafficking to Texas. A recorded phone call indicated that Ramos had a
relationship with the Mexican Mafia associates and participated in negotiating
a lower amount of taxes. Lopez received calls from Gardena 13 members
concerning the presence of a “new guy” in town dealing drugs, implicitly asking
for his permission and implying his control over narcotics sales in Gardena 13
territory.    We conclude that the record presents sufficient evidence to
demonstrates that the actions taken by Lopez and Ramos, particularly the
efforts to collect and pay the Mexican Mafia “protection money,” were in
furtherance of the conspiracy to distribute over 500 grams of methamphetamine.
Accordingly, we affirm the convictions.


       8
         In fact, at sentencing, Lopez sought to receive a lesser punishment for his acceptance
of responsibility, given that he did not challenge the government’s allegations regarding his
tax collection efforts.

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                                    No. 12-50070

III.     Sentencing
         Lopez challenges the district court’s application of the leadership
enhancement to his sentence. Both Ramos and Lopez challenge the quantity of
drugs used in calculating their sentences.         At sentencing, the defendants
submitted objections to their Pre-Sentence Reports (“PSR”). We review de novo
an application of the Sentencing Guidelines, but review factual findings for clear
error. United States v. Delgado-Martinez, 564 F.3d 750, 751 (5th Cir. 2009)
(citation omitted). A district court commits procedural error by selecting a
sentence based on clearly erroneous facts. United States v. Rhine, 637 F.3d 525,
528 (5th Cir. 2011) (citing Gall v. United States, 552 U.S. 38, 46 (2007)). If
procedural error is shown, the government bears the burden of proving the error
was harmless in that the district court could have imposed the same sentence
absent the error. United States v. Ibarra-Luna, 628 F.3d 712, 718 (5th Cir.
2010). Both the determination regarding a defendant’s status as a leader, as
well as relevant conduct, such as quantities of drugs, are findings of fact. See
United States v. Garza, 541 F.3d 290, 292 (5th Cir. 2008) (relevant conduct);
United States v. Dadi, 235 F.3d 945, 951 (5th Cir. 2000) (leader or organizer).
A.       Leadership Enhancement
         A defendant may be subject to a four-level increase in his offense level if
he “was an organizer or leader of a criminal activity that involved five or more
participants or was otherwise extensive.” U.S. SENTENCING GUIDELINES MANUAL
(“U.S.S.G.”) § 3B1.1(a). In applying the enhancement, the court considers “the
exercise of decision making authority, the nature of participation in the
commission of the crime, the claimed right to a larger share of the fruits of the
crime, the degree of participation in planning or organizing the offense, the
nature and scope of the illegal activity, and the degree of control exercised over
others.” United States v. Cantu-Ramirez, 669 F.3d 619, 629 (5th Cir.), cert
denied, 133 S. Ct. 247 (2012).

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                                       No. 12-50070

       We disagree with the district court’s application of the leadership
sentencing enhancement to Lopez’s offense level calculation.                     While the
testimony adduced at trial indicates that Lopez occupied a leadership role within
the ranks of Gardena 13, the record reveals that his involvement in the actual
transportation and distribution of the methamphetamine was not that of a
leader. Cf. United States v. Lewis, 476 F.3d 369, 389 (5th Cir. 2007). There was
no evidence that the conspiracy charged in this case was initiated or controlled
by Gardena 13 in general or Lopez in particular.9 There is insufficient evidence
to establish that Lopez directed or instructed the planning or operation of the
drug conspiracy. Lopez’s efforts to organize the tax collection and payment to
the Mexican Mafia, for purposes of protection of the drug trade in Gardena, do
not amount to a leadership role in the actual conspiracy to distribute
methamphetamine presented here by the government. Accordingly, we reverse
the district court’s application of the leadership enhancement to Lopez’s
sentence.
B.     Relevant Conduct
       Both Ramos and Lopez object to the quantity of drugs attributed to them.10
They argue that the amount of methamphetamine seized by the government
from Tapia and Olmos was not reasonably foreseeable to them, and thus cannot
be considered as relevant conduct in sentencing.
       Pursuant to section 1B1.3 of the Guidelines, the base offense level for a
defendant is determined by reference to a defendant’s “relevant conduct.” This


       9
        In fact, testimony from Detective Cuff indicated that “the hub of [] Tapia’s source of
narcotics supply . . . has absolutely nothing to do [with] or is a separate organization
independent of Gardena 13.”
       10
         See supra note 3. The PSRs for both Ramos and Lopez attributed the seized
methamphetamine from Tapia and Olmos to both defendants, resulting in a base offense level
of 38 under U.S.S.G. § 2D1.1. Both defendants submitted objections to the district court
regarding these sections of their PSRs.

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                                     No. 12-50070

includes “all reasonably foreseeable acts and omissions of others in furtherance
of the jointly undertaken criminal activity . . . that occurred during the
commission of the offense of conviction.” U.S.S.G. § 1B1.3(a)(1). The Guidelines
require consideration of when a co-conspirator joined the conspiracy, what drug
quantities were within the scope of the conspiratorial agreement, and of those
drug quantities, the quantities that were reasonably foreseeable, prospectively
only, by the defendant. United States v. Turner, 319 F.3d 716, 724 (5th Cir.
2003). A defendant is accountable for all quantities of contraband with which
he was directly involved. U.S.S.G. § 1B1.3 cmt. n. 2. Yet, “[a] conviction for
conspiracy does not automatically mean that every conspirator has foreseen the
total quantity of drugs involved in the entire conspiracy.” United States v.
Smith, 13 F.3d 860, 867 (5th Cir. 1994); see also U.S.S.G. § 1B1.3 cmt. n. 2
(“[T]he scope of the criminal activity jointly undertaken by the defendant . . . is
not necessarily the same as the scope of the entire conspiracy, and hence
relevant conduct is not necessarily the same for every participant.”).
       Sentencing facts are required to be proven by a preponderance of the
evidence. See United States v. Harper, 448 F.3d 732, 735 (5th Cir. 2006). Lopez
argues that the district court erred by not making specific findings regarding the
relevant conduct, as required by our precedent. See United States v. Wilson, 116
F.3d 1066, 1077 (5th Cir.), vacated in part on other grounds sub nom., United
States v. Brown, 123 F.3d 213 (5th Cir. 1997) (en banc); see also United States v.
Carreon, 11 F.3d 1125, 1236 (5th Cir. 1994) (describing these findings as
“express”).11
       After listening to counsels’ arguments at the sentencing hearing, the
district court concluded:



       11
        Although only Lopez addressed this argument in his brief, we also impute this basis
for remand to Ramos. Cf. Carreon, 11 F.3d at 1231.

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                                   No. 12-50070

              The Court would find that at least by a preponderance of the
        evidence that it was reasonably foreseeable to each of the
        defendants that the amounts . . . set forth in the presentence report
        were reasonably foreseeable to each defendant and that each
        defendant is properly charged with these amounts and those
        objections would be overruled.

We find that the district court’s conclusion amounts to a simple adoption of the
PSR, failing to specifically make findings as to the quantities of drugs
attributable to each defendant based on whether the drugs were within the scope
of the conspiracy agreement and reasonably foreseeable to Ramos and Lopez.
See, e.g., Carreon, 11 F.3d at 1231; see also Smith, 13 F.3d at 867. It is not at all
clear to us that all such amounts are properly charged to these defendants.
Because the government makes no attempt to demonstrate such error is
harmless, we vacate the defendants’ sentences and remand for resentencing. See
Ibarra-Luna, 628 F.3d at 718.
IV.     Conclusion
        Based on the foregoing discussion, we AFFIRM the convictions of Lopez
and Ramos. However, we VACATE the sentences of both defendants and
REMAND for resentencing pursuant to this opinion.




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                                     No. 12-50070

OWEN, Circuit Judge, concurring in part and dissenting in part:
       I concur in the judgment with regard to Ray Anthony Lopez, but I
respectfully dissent from the disposition of Richard Ramos’s appeal. Because the
evidence is insufficient to support his conviction, I would reverse.
       Ramos was accused of conspiring with others, including Rogelio Tapia, to
distribute and to possess with intent to distribute at least 500 grams of a
mixture or substance containing a detectable amount of methamphetamine.
This conspiracy was Tapia’s drug trafficking operation, which primarily
concerned the trafficking of drugs from California into Texas, not the various
drug trafficking activities by individual members of the Gardena 13 gang. The
Gardena 13 gang had approximately 5,000 members, many of whom sold illegal
drugs. Proof that Ramos collected taxes imposed by the Mexican Mafia in order
to protect drug trafficking operations by members of the Gardena 13 gang is not
evidence that Ramos was protecting Tapia’s drug operation.
       In order to convict Ramos, the Government was required to offer evidence
of “(1) an agreement between two or more persons to violate the narcotics laws,
(2) the defendant’s knowledge of the agreement, and (3) the defendant’s
voluntary participation in the conspiracy.”1 The majority opinion does not cite
any evidence that Ramos knew of the Tapia drug conspiracy or that Ramos
voluntarily participated in that conspiracy. The record is likewise devoid of such
evidence. The majority opinion sets forth the facts offered against Ramos in two
paragraphs and a single sentence in a third that is repetitive:
       Testimony adduced at trial also indicates that Ramos was heavily
       involved in tax collection. Co-defendant Glenn Kapuy, who was not
       a member of Gardena 13 but who nevertheless sold drugs, including
       methamphetamine, alongside Olmos testified that Ramos
       repeatedly exacted taxes from him, in the form of cash or drugs.


       1
        United States v. Booker, 334 F.3d 406, 409 (5th Cir. 2003) (citing United States v.
Gallardo-Trapero, 185 F.3d 307, 316-17 (5th Cir. 1999)).

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                                   No. 12-50070

      One recorded phone call with Ramos suggests that he played an
      important role early on in negotiating with the Mexican Mafia for
      a lower tax assessment. There was no evidence presented
      suggesting that Tapia and Ramos had any direct contact during the
      conspiracy.2
                                       ***
      Similarly, the evidence at trial indicates that Ramos purchased, or
      was given, some of Tapia’s methamphetamine through Kapuy as
      part of his tax collection efforts on more than one occasion. As
      Kapuy purchased his drugs from Olmos, who bought them from
      Tapia, the jury could reasonably conclude that Ramos was on notice
      of the drug distribution conspiracy, regardless of whether or not he
      knew from where the drugs originated. This evidence is sufficient
      to demonstrate Ramos’s knowledge of the narcotics distribution
      conspiracy.3
                                       ***
      A recorded phone call indicated that Ramos had a relationship with
      the Mexican Mafia associates and participated in negotiating a
      lower amount of taxes.4
      As to the first paragraph, the majority opinion accurately recounts that
there is no evidence that Ramos ever met or had contact with Tapia. The fact
that Ramos collected taxes in the form of cash or drugs to be paid to the Mexican
Mafia does not connect Ramos to the Tapia conspiracy, particularly in light of
the fact that there was evidence that Ramos may have been the Mexican Mafia’s
local representative in Gardena as well as a member of the Gardena 13 gang.
Similarly, the fact that Ramos negotiated a lower rate of taxes with the Mexican
Mafia does not connect Ramos to the Tapia conspiracy.
      The second paragraph sets forth a highly attenuated chain between Ramos
and the drugs that Tapia trafficked. The majority opinion correctly observes

      2
          Ante at 4-5.
      3
          Ante at 8.
      4
          Ante at 9.

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                                     No. 12-50070

that Kapuy sold or gave drugs to Ramos as part of Ramos’s tax collection efforts
for the Mexican Mafia. Although there was evidence that Kapuy purchased
some drugs from Olmos and Tapia supplied some drugs to Olmos, there was no
evidence that the source of the drugs that Ramos received was Tapia and not
other possible sources. Nor is there any evidence that Kapuy told Ramos the
sources of his drugs. Nevertheless, from this scant evidence, the majority
opinion concludes that the jury was permitted to find that “Ramos was on notice
of the drug distribution conspiracy, regardless of whether or not he knew from
where the drugs originated.”5
      The crux of the panel majority’s reasoning seems to be that if Ramos
collected taxes assessed by the Mexican Mafia on illegal activities, then Ramos
can be found to have known of and to have agreed to participate in each of the
illegal activities that was being taxed. I cannot agree that the law of conspiracy
can be stretched this far. Ramos’s knowledge of drug trafficking by Kapuy and
“taxing” that illegal activity       does not equate to either knowledge of or
participation in Tapia’s drug trafficking conspiracy.
      The majority attempts to deflect this criticism by asserting it does “not
find the evidence to be attenuated to that degree.”6 In support of this point, it
cites our precedent in United States v. Richerson,7 which held that “[p]arties who
knowingly participate with core conspirators to achieve a common goal may be
members of an overall conspiracy.”8 If the record reflected that (1) Ramos knew
of the common goal of the Tapia conspiracy, (2) Kapuy was a core conspirator in



      5
          Ante at 8.
      6
          Ante at 8 n.7.
      7
          Ante at 8 n.7.
      8
         United States v. Richerson, 833 F.2d 1147, 1154 (5th Cir. 1987) (emphasis added)
(citing United States v. Perez, 489 F.2d 51, 62 (5th Cir. 1973)).

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    Case: 12-50070    Document: 00512209799     Page: 17   Date Filed: 04/16/2013



                                 No. 12-50070

the Tapia conspiracy, and (3) Ramos knowingly furthered the Tapia conspiracy’s
common goal, then I agree that Richerson would control this case. The record,
however, does not contain such evidence. The record reflects only that Ramos
knew that Kapuy was trafficking—but that is all it reflects. Ramos’s mere
knowledge of Kapuy’s retail methamphetamine sales is not evidence of Ramos’s
further knowledge that Kapuy had agreed with others in the Tapia conspiracy
or of Ramos’s agreement to participate in the Tapia conspiracy.
      The issue is best stated as whether assessing a “tax” on illegal
activities—that is, obtaining money by extortion—amounts to participation in
a conspiracy to commit the illegal activity that is “taxed.” I submit that the
Government proved extortion, but Ramos was not charged with extortion. He
was charged with agreeing “to possess with intent to distribute and to distribute
a controlled substance” in excess of 500 grams.
      There is no question that Ramos engaged in illegal activity. But the
Government did not prove that Ramos knew of Tapia’s drug trafficking
conspiracy or that Ramos agreed to participate in that conspiracy. Accordingly,
I dissent.




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