                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         MAR 5 2004
                                     TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,               No. 03-2137 and 03-2144
          v.                                         (D. New Mexico)
 JESUS FALLS and BERNARDO                        (D.C. No. CR-01-1616-JP)
 RODRIGUEZ,

               Defendants-Appellants.


                            ORDER AND JUDGMENT          *




Before MURPHY , HOLLOWAY , and McCONNELL , Circuit Judges.


      Co-defendants Jesus Falls and Bernardo Rodriguez appeal their convictions

for distribution of 50 grams or more of a substance containing cocaine base and

for conspiracy to commit that offense. Mr. Rodriguez also challenges the

enhancement of his sentence for possessing a dangerous weapon during a drug

trafficking offense. We    AFFIRM both defendants’ convictions and Mr.

Rodriguez’s sentence.



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
                                 BACKGROUND

      On October 30, 2001, Oscar Chacon got a phone call. The caller asked

whether Mr. Chacon could sell him nine ounces of crack. Mr. Chacon responded

that he could obtain that amount and would sell it for $5,000. Unfortunately for

Mr. Chacon, the caller was Arturo Gamboa, an undercover detective with the

Albuquerque Police Department.

      Detective Gamboa called back later that day to confirm the terms of the

deal. Mr. Chacon assured him that the deal was still on. Mr. Chacon then told

the detective to come to Mr. Chacon’s house to make the exchange.

      Detective Gamboa drove to Mr. Chacon’s house in Albuquerque. He

arrived after dark. A van containing a surveillance team of Albuquerque police

officers was parked out of sight nearby. The officers planned to execute a “buy-

bust” operation, meaning that they would immediately arrest the drug dealers

when they gave the drugs to the undercover officer. The surveillance team in the

van could hear Detective Gamboa’s words through a hidden transmitter, although

their understanding of Spanish was limited.

      Mr. Chacon met Detective Gamboa outside his house. He told the detective

that he had to go inside to make a phone call. Mr. Chacon came back outside a

few minutes later and said, “Okay, I made a phone call; it should be here shortly.”

Rodriguez App. 68.


                                         -2-
       The two men waited outside for about twenty minutes. Mr. Chacon then

asked to use Detective Gamboa’s cell phone. Mr. Chacon dialed a number, and

Detective Gamboa heard him say, “Okay, you’re almost here, where are you at?

We’re waiting, I’m getting impatient here.”          Id. at 68-69. Mr. Chacon hung up,

and said to the detective, “Okay, it will be here in a little bit.”   Id. at 69.

       About five or ten minutes later, a green Ford Explorer pulled up to the

house. Mr. Chacon said, “Okay, it’s here.”           Id. Detective Gamboa and Mr.

Chacon approached the passenger side of the Explorer. Defendant Jesus Falls

was driving, and Defendant Bernardo Rodriguez was the passenger. Mr. Chacon

pointed to Detective Gamboa and said to the defendants, “he’s the guy with the

money.” Id. at 70.

       Detective Gamboa then introduced himself to the defendants. Both Mr.

Falls and Mr. Rodriguez immediately explained that they did not have the whole

nine ounces, but they had seven. The detective asked for a price quote on the

seven ounces. Mr. Rodriguez offered $600 per ounce. Detective Gamboa

countered with $4,000 for all seven. Mr. Falls rejected that offer, but offered to

get two more ounces for Detective Gamboa and give him a more favorable price

on those two. Detective Gamboa agreed.

       Mr. Falls then said to Mr. Rodriguez, “Well, show it to him, give it to him,

let him see it.”   Id. at 72-73. Mr. Rodriguez pulled a bag of crack cocaine out


                                               -3-
from underneath his sweater and handed it to the undercover detective. Detective

Gamboa then gave the “arrest signal” to the surveillance team in the van.   Id. at

73.

      As the van approached, the drug dealers appeared to Detective Gamboa to

get nervous. Mr. Rodriguez reached under the back of his shirt. Detective

Gamboa was concerned that he might be reaching for a gun. The detective asked

Mr. Chacon whether he knew who was in the van, in the hope that Mr. Chacon

would agree that he was familiar with the van and reassure Mr. Rodriguez. Mr.

Chacon looked at the van and said, “Oh, yeah, I know them, they’re my friends.”

Id. at 75. This caused Mr. Rodriguez to relax.

      The doors of the van flew open, and police officers burst out shouting

“police!” in English and Spanish. Detective Gamboa saw Mr. Rodriguez reach

under his shirt again, and the detective walked away with the crack and the

money. The surveillance officers arrested Mr. Chacon, Mr. Falls, and Mr.

Rodriguez. The officers handcuffed the three men and laid them out face down

on the ground. Mr. Rodriguez began squirming around, trying to stand up. The

officers told him to stay still. Mr. Rodriguez complained that his arms were

hurting and that he needed to stand up. He asked the officers to take off the

handcuffs. The officers then rolled him over in order to help him up to a sitting

position. Upon doing so, the officers immediately spotted a gun on the ground


                                           -4-
directly underneath where Mr. Rodriguez’s stomach had been. The gun was a

loaded .38 caliber revolver. One of the officers said, “Oh, that’s why you wanted

me to take off your handcuffs.”   Id. at 123. Mr. Rodriguez responded, “[T]hat’s

not mine.” Id. Another officer later found .38 caliber ammunition in the Ford

Explorer.

      On December 13, 2001, a federal grand jury indicted Messrs. Chacon, Falls,

and Rodriguez on one count of conspiracy to distribute 50 grams or more of a

substance containing cocaine base, in violation of 21 U.S.C. § 841(a)(1) and 21

U.S.C. § 846; and one count of distribution of 50 grams or more of a substance

containing cocaine base, in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. §

841(b)(1)(A). The grand jury also charged Mr. Rodriguez with one count of

carrying a firearm during and in relation to a drug trafficking offense, in violation

of 18 U.S.C. § 924(c)(1)(A).

      Mr. Chacon absconded before trial. The trial of the two remaining

defendants began on December 11, 2002. Detective Gamboa was the first witness

for the United States. Defense counsel objected to Detective Gamboa’s testimony

regarding his conversations with Mr. Chacon about the crack deal on the ground

that testimony about Mr. Chacon’s statements was inadmissible hearsay. The

government responded that the statements were admissible as statements of a co-




                                          -5-
conspirator in furtherance of the conspiracy. The district court agreed with the

government and admitted the testimony.

       Later in the trial, the prosecutor asked a DEA agent how he came to be

involved in the case. The agent responded that the Albuquerque police contacted

him after the arrest because they “knew that I was currently conducting an

investigation involving both Mr. Bernardo Rodriguez and Jesus Falls.”       Id. at 198.

Defense counsel objected that this was improper testimony that the defendants

were suspected of other, uncharged crimes, and he demanded a mistrial on that

basis. The government responded that the evidence was proper because it was

offered to rebut an assertion that defense counsel had made during opening

argument that the case had been transferred to the DEA because of the

Albuquerque Police Department’s bias. The district judge asked defense counsel

what he meant by his reference to “bias.” Defense counsel responded that the

transfer to the DEA “shows a bias of APD” because “when you have Cubans and

you have guns and you have crack cocaine, those cases always come to DEA.”          Id.

at 203. The trial judge denied the motion for a mistrial, saying that he did not

think the testimony “had a significant impact on the jury in terms of the

government’s obligation to prove guilt in this case.”    Id. at 205. The district

judge also determined that the evidence would be “fairly responsive” to defense

counsel’s argument about bias if the defense continued to advance it.     Id. at 207.


                                            -6-
The judge therefore instructed the prosecutor not to solicit additional testimony

about an ongoing investigation and not to refer to it in arguments to the jury,

unless defense counsel persisted in alleging bias. The prosecutor complied with

this instruction, and defense counsel did not subsequently pursue his bias

argument.

       At the close of the government’s case, both defendants moved for a

judgment of acquittal on the conspiracy count. The trial judge denied the motion

and submitted the case to the jury. During deliberations, the jury sent a note to

the judge which inquired about the status and whereabouts of Mr. Chacon. The

trial judge decided to give the following written response, over the objection of

defense counsel: “You must decide the case on the basis of the evidence admitted

for your consideration during the trial and you must follow all of the court’s

instructions as a whole, including instruction 15.”   Id. at 410. Instruction 15

stated, “The defendants are not on trial for any act or conduct or offense not

alleged in the indictment. Neither are you called upon to return a verdict as to the

guilt or innocence of any other person or persons not on trial as a defendant in

this case.” Id. at 335.

       The jury convicted both defendants of distribution of cocaine base and of

conspiracy. The jury found Mr. Rodriguez not guilty of the firearm charge.




                                            -7-
       At sentencing, Mr. Rodriguez objected to the presentence report’s

recommendation that he receive a two-level sentencing enhancement for

possessing a dangerous weapon during the commission of a drug offense.       See

U.S.S.G. § 2D1.1(b)(1). The district court denied the objection and found that

Mr. Rodriguez possessed a weapon during the commission of the offense. After

applying the enhancement, the court determined that Mr. Rodriguez’s adjusted

offense level was 36, resulting in a sentencing range of 188 to 235 months. The

district court imposed a sentence of 188 months.

                                     DISCUSSION

                                             I.

       The defendants argue that the district court erred in allowing Detective

Gamboa to testify about the content of Mr. Chacon’s out-of-court statements. The

district court admitted the testimony about the statements on the ground that they

were statements of a co-conspirator. We review the district court’s decision to

admit statements of a co-conspirator for abuse of discretion.   United States v.

Eads , 191 F.3d 1206, 1210 (10th Cir. 1999).

       The Federal Rules of Evidence provide that a statement is not hearsay if it

is “a statement by a coconspirator of a party during the course and in furtherance

of the conspiracy.” Fed. R. Evid. 801(d)(2)(E). Co-conspirator statements may

properly be admitted if the court finds that (1) a conspiracy existed; (2) both the


                                            -8-
declarant and the defendant against whom the declaration is offered were

members of the conspiracy; and (3) the statements were made in the course of and

in furtherance of the conspiracy.   Eads , 191 F.3d at 1210. The party offering the

evidence must prove these facts by a preponderance of the evidence.       Bourjaily v.

United States , 483 U.S. 171, 176 (1987). Such evidence may include the

statements themselves, but the statements alone are not sufficient to establish that

a conspiracy existed and that the declarant and the defendants were members of it.

Fed. R. Evid. 801(d)(2)(E).

       The defendants contend that the only evidence supporting the district

court’s finding that Mr. Chacon was their co-conspirator was the statements

themselves. It is true that the district court relied in part on the content of the

statements in making its findings. However, reliance on the out-of-court

statements is permissible as long as there is also independent evidence of

conspiracy. See Bourjaily , 483 U.S. at 181; United States v. Hernandez , 829 F.2d

988, 993-94 (10th Cir. 1987); Fed. R. Evid. 801(d)(2)(E). In this case, the

independent evidence is substantial. The fact that the defendants showed up at

Mr. Chacon’s house with crack for sale within ten minutes of Mr. Chacon’s

making a phone call is highly probative of the defendants’ involvement with Mr.

Chacon in a drug distribution conspiracy. In addition, the defendants immediately

told Detective Gamboa that they did not have “the nine ounces,” which shows that


                                           -9-
they had received information, presumably from Mr. Chacon, about how much

crack the detective wanted to buy. This independent evidence, when combined

with the statements themselves, is more than sufficient to support the district

court’s finding.

      The defendants also claim that Mr. Chacon’s statements were not in

furtherance of the conspiracy. This is a difficult argument to make, because all of

Mr. Chacon’s statements either directed someone to come to his house to deliver

crack or reassured Detective Gamboa, the prospective buyer, that Mr. Chacon had

crack for sale that would arrive at his house. Thus, the statements were plainly

intended to facilitate the conspirators’ distribution of crack cocaine. The

defendants’ argument for why the statements were not in furtherance of the

conspiracy is that the statements were made to a government agent. The

defendants cite several cases from other circuits for the proposition that the “in

furtherance” requirement cannot be met by statements to government agents.            See,

e.g. , United States v. Means , 695 F.2d 811, 818 (5th Cir. 1983);   United States v.

Miller , 664 F.2d 94, 98-99 (5th Cir. 1981). The cases cited by the defendants do

not even suggest such a principle. The relevant inquiry is not who the conspirator

was speaking to but what purpose he intended the statements to serve.        United

States v. Perez , 989 F.2d 1574, 1578 (10th Cir. 1993). If the speaker intended to

promote the conspiracy’s objectives by making the statement, the statement is “in


                                           -10-
furtherance” of the conspiracy.       Id. A statement, like a confession, whose sole

purpose is to disclose information to the government might not be in furtherance

of a conspiracy, but statements that are obviously intended to facilitate a drug

transaction do not cease to be “in furtherance” of a drug distribution conspiracy

merely because the conspirator was speaking to an officer of the government.

The statements were therefore admissible as statements of a co-conspirator in

furtherance of the conspiracy.

                                              II.

       The defendants contend that the district court erroneously denied their

motion for judgment of acquittal because there was insufficient evidence of

conspiracy. To review the denial of a motion for acquittal, we review the record

de novo , in the light most favorable to the government, to determine whether any

rational trier of fact could have found the defendant guilty beyond a reasonable

doubt. United States v. Wood , 207 F.3d 1222, 1227-28 (10th Cir. 2000).

       A conspiracy conviction requires proof of (1) an agreement with another

person to violate the law; (2) knowledge of the essential objectives of the

conspiracy; (3) knowing and voluntary involvement in the conspiracy; and (4)

interdependence among the alleged conspirators.        United States v. Vaziri , 164

F.3d 556, 565 (10th Cir. 1999). Because “[s]ecrecy and concealment are essential

features of successful conspiracy,”      Blumenthal v. United States , 332 U.S. 539,


                                             -11-
557 (1947), direct evidence of conspiracy is often hard to come by. Therefore,

conspiracy convictions may be based on circumstantial evidence, and the jury may

infer conspiracy from the defendants’ conduct and other circumstantial evidence

indicating coordination and concert of action.    United States v. Hardwell , 80 F.3d

1471, 1482 (10th Cir. 1996).

       The defendants contend that the government’s evidence showed at most

only a buyer-seller relationship between themselves and Mr. Chacon, and that this

is insufficient to establish the elements of conspiracy. But there was no evidence

that the defendants wanted to sell the crack to Mr. Chacon and there was

considerable, albeit circumstantial, evidence of mutual coordination between them

and Mr. Chacon from which the jury could reasonably have inferred a

conspiratorial agreement to distribute drugs. Mr. Chacon made a phone call and

then told Detective Gamboa that the nine ounces of crack would soon arrive.

Minutes later, the defendants drove up. Upon seeing them, Mr. Chacon told

Detective Gamboa that the drugs had arrived. Mr. Chacon then pointed to the

detective and explained to the defendants that he was the one with the money.

Both defendants immediately explained that they didn’t have “the nine ounces.”

After price negotiations, they then distributed seven ounces of crack to Detective

Gamboa.




                                           -12-
       The defendants argue that their showing up at the opportune moment with

crack to sell was just an unfortunate coincidence.   See Rodriguez Br. 20

(“Rodriguez arrived at Chacon’s residence spontaneously and not at the urging of

a phone call from Chacon.”). Perhaps so, but in light of all the circumstantial

evidence of coordination, the jury was certainly not required to believe the

defendants’ improbable coincidence story. The evidence was more than sufficient

to support the defendants’ conspiracy convictions, and the district court did not

err in denying their motion for judgment of acquittal.

                                            III.

       The defendants contend that the district court should have granted their

motion for a mistrial after a DEA agent testified that the reason why the

Albuquerque Police brought the agent into the case was because they knew that he

had been conducting an investigation involving Mr. Falls and Mr. Rodriguez. We

review a district court’s denial of a motion for a mistrial for abuse of discretion.

United States v. Kravchuk , 335 F.3d 1147, 1154-55 (10th Cir. 1994).

       The defendants argue that the DEA agent’s testimony that he had been

conducting an investigation involving Mr. Falls and Mr. Rodriguez was

inadmissible under Federal Rule of Evidence 404(b). That rule prohibits the

admission of evidence of “other crimes, wrongs, or acts . . . to prove the character

of a person in order to show action in conformity therewith.” Fed. R. Evid.


                                           -13-
404(b). Alternatively, the defendants insist that the evidence should have been

suppressed under Federal Rule of Evidence 403, because its probative value was

substantially outweighed by its prejudicial effect on the jury.

       The government responds that Rule 404(b) is inapplicable because the

evidence was not offered as evidence of a prior crime to show action in

conformity therewith. Rather, the evidence was offered to rebut an assertion that

defense counsel made during opening argument about the Albuquerque Police

Department’s bias in transferring the case to the DEA. The government contends

that the evidence was also admissible under Rule 403 because a defendant who

raises a subject in an opening statement “opens the door” to admission of

evidence on that same subject by the government.    See United States v. Chavez ,

229 F.3d 946, 952 (10th Cir. 2000).

       We do not think the district court’s resolution of this question was an abuse

of discretion. The district judge seemed to acknowledge that defense counsel had

“opened the door.” It would have been within his discretion to admit the

evidence on that basis.   Id. Nevertheless, he also seems to have concluded that

both the defense’s bias argument and the prosecution’s evidence about an ongoing

DEA investigation were of dubious value to the jury in determining whether the

defendants were guilty of the crimes charged. He therefore instructed the

prosecution not to elicit any further testimony about the investigation and not to


                                         -14-
refer to it during arguments unless the defense persisted in its bias argument.

Both parties prudently complied, and nothing more was said about the DEA

investigation or Albuquerque Police Department bias for the remainder of the

trial. In this context, it was well within the district judge’s discretion to conclude

that a single isolated statement by a DEA agent that he had been investigating the

defendants prior to their arrest did not have a sufficiently prejudicial effect on the

jury to warrant a mistrial.    See United States v. Behrens , 689 F.2d 154, 162 (10th

Cir. 1982) (“Whether a motion for mistrial should be granted is within the

discretion of the trial judge because he is in the best position to evaluate the

effect of the offending evidence on the jury.”) (internal citations and quotation

marks omitted).

                                            IV.

       The defendants’ next argument is that the district court’s response to the

jury’s question about the whereabouts of Mr. Chacon was improper and

misleading, and therefore requires reversal of their convictions. While we review

the jury instructions as a whole to determine whether they correctly state the

governing law and provide an ample understanding of the issues, the submission

of supplemental jury instructions after the jury has retired is a matter committed

to the trial court’s discretion.   United States v. Arias-Santos , 39 F.3d 1070, 1075-

76 (10th Cir. 1994).


                                            -15-
       The district judge may respond to a jury’s question by referring to a

specific jury instruction if the instruction is a correct statement of the law and is

responsive to the question.   See id . at 1076. The district judge’s response to the

jury’s question about the status of Mr. Chacon was that the jury should follow all

of the court’s instructions, including Instruction 15. That instruction stated, “The

defendants are not on trial for any act or conduct or offense not alleged in the

indictment. Neither are you called upon to return a verdict as to the guilt or

innocence of any other person or persons not on trial as a defendant in this case.”

Rodriguez App. 335. There is nothing legally incorrect about this instruction. It

is also responsive to the jury’s inquiry, as it instructs them to concern themselves

only with determining the guilt or innocence of the defendants as to the crimes

charged rather than speculating about the current whereabouts of Mr. Chacon.

       The defendants claim that emphasizing Instruction 15 in this context

suggested to the jury that it could find the defendants guilty of conspiracy based

only on their own unilateral actions. This is not a plausible inference from the

judge’s response, particularly in light of the other jury instructions that correctly

set forth the elements of conspiracy. Therefore, the judge’s reference to

Instruction 15 was proper; the instruction was legally correct, helpful to the jury,

and not materially misleading.




                                          -16-
                                              V.

       The defendants claim that the district court erred when it failed to instruct

the jury that the specific type of cocaine base was an element of the offense. The

defendants contend that the term “cocaine base” as used in the jury instructions

was too broad, because there are certain forms of cocaine base that differ

chemically from “crack cocaine” and the defendants were convicted under a

statutory provision that applies only to crack. The defendants did not raise this

objection at trial, and we therefore review their claim for plain error.   United

States v. Lujan , 268 F.3d 965, 967 (10th Cir. 2001).

       The defendants’ claim seems to be that the jury instructions should have

said “crack” instead of “cocaine base.” It is hard to see why this should be so

when the instructions’ use of the term “cocaine base” mirrors the language of the

indictment and the relevant statute. The indictment alleged that the defendants

distributed 50 grams or more of a substance containing “cocaine base” in

violation of 21 U.S.C. § 841(b)(1)(A). Rodriguez App. 19. That statute prohibits

and provides a maximum sentence of life imprisonment for distribution of 50

grams or more of a substance containing “cocaine base.” 21 U.S.C. §

841(b)(1)(A). The jury instructions in turn required that the jury find beyond a

reasonable doubt that the defendants distributed and conspired to distribute 50

grams or more of “cocaine base.” Rodriguez App. 324. The jury instructions’


                                             -17-
reference to “cocaine base” is therefore correct on its face, because this is the

term used in the indictment and the statute.

      Nevertheless, the defendants contend that the instructions must refer

specifically to “crack,” because the term “cocaine base” in § 841(b)(1)(A) is

limited to crack and the jury might have understood the term as used in the

instruction to refer to types of cocaine base that are not crack. We find this

argument unpersuasive. Even if the defendants’ interpretation of “cocaine base”

as it appears in § 841(b)(1)(A) is correct, the fact remains that the jury

instructions used the same term that appears in the statute. There is no need for

the instructions to further limit the statutory term “cocaine base” to “crack” unless

there is some risk that the jury might have found that the defendants were

distributing some form of cocaine base that was not crack. However, in this case,

there was no evidence that the substance that the defendants distributed was

anything but crack. Detective Gamboa and Mr. Chacon referred repeatedly to

“crack” in their negotiations; it was clear that they were negotiating a deal for

crack, not some other form of cocaine base. In addition, the government offered

unrebutted testimony of a DEA forensic chemist who stated that he performed

laboratory tests on the drugs recovered from the scene and concluded that “it was

cocaine base, commonly referred to as crack cocaine.” Rodriguez App. 230. In




                                          -18-
this context, it was not plain error for the district judge to fail to instruct the jury

that “cocaine base” means only “crack.”

                                            VI.

       Mr. Rodriguez alone appeals the enhancement of his sentence under

U.S.S.G. § 2D1.1(b)(1) for possessing a dangerous weapon during a drug

trafficking offense. We review the district court’s legal interpretation of the

Sentencing Guidelines    de novo and its factual findings for clear error.   United

States v. Vaziri , 164 F.3d 556, 567 (10th Cir. 1999).

       Section 2D1.1(b)(1) provides: “If a dangerous weapon was possessed

(including a firearm), increase by 2 levels.” The application notes explain that

“[t]he adjustment should be applied if the weapon was present, unless it is clearly

improbable that the weapon was connected with the offense.” U.S.S.G. § 2D1.1,

cmt. n.3. The government bears the initial burden of proving possession by a

preponderance of the evidence, and may do so by showing mere proximity to the

offense. United States v. Smith , 131 F.3d 1392, 1400 (10th Cir. 1997). Once the

government meets this burden, the enhancement applies unless the defendant

proves that it is clearly improbable that the weapon was connected with the

offense. Id.

       Mr. Rodriguez argues that there was insufficient evidence to support the

district court’s finding that he possessed the gun. However, the district court’s


                                           -19-
finding was well supported by record evidence. Detective Gamboa testified that

he twice saw Mr. Rodriguez reach under his shirt when the situation appeared

dangerous. The officers found the gun on the driveway directly underneath where

Mr. Rodriguez’s waistband had been just seconds before. They also found

ammunition matching the caliber of the gun in the Ford Explorer. Given this

evidence, the district court’s finding was not clearly erroneous.

      Mr. Rodriguez also argues that the enhancement cannot be applied to him

because the jury acquitted him of the charge under 18 U.S.C. § 924(c) of carrying

a firearm during and in relation to a drug trafficking offense. This argument is

foreclosed by our decision in   United States v. Morehead , 959 F.2d 1489 (10th Cir.

1992). In Morehead , we upheld the application of the enhancement for

possessing a dangerous weapon despite the defendant’s acquittal on a 924(c)

charge because “the standard to convict on § 924(c) ‘is much higher than that

necessary for an enhancement under the Guidelines.’”     Id. at 1512 (quoting

United States v. Goddard , 929 F.2d 546, 549 (10th Cir. 1991)).

      Morehead is therefore precisely on point and mandates our rejection of Mr.

Rodriguez’s argument. In response, Mr. Rodriguez submits that       Morehead was

wrongly decided and invites us to revisit it, on the ground that it is manifestly

unconstitutional for a defendant’s sentence to be enhanced on the basis of conduct

for which the jury has acquitted him. Even if it were permissible for this panel to


                                          -20-
overrule the decision of a previous panel, Mr. Rodriguez’s argument would fail

because the constitutional principle he relies on has been squarely rejected by the

Supreme Court.   See United States v. Watts , 519 U.S. 148, 157 (1997) (holding, in

a case where a defendant was acquitted on a 924(c) charge but given an

enhancement for weapon possession, that a sentencing court may consider

conduct of which a defendant has been acquitted).

                                        VII.

      For the foregoing reasons, we   AFFIRM both defendants’ convictions and

Mr. Rodriguez’s sentence .

                                               Entered for the Court

                                               Michael W. McConnell
                                               Circuit Judge




                                        -21-
                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          APR 13 2005
                                     TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 03-2137
          v.                                       District of New Mexico
 JESUS FALLS,                                     (D.C. No. CR-01-1616-JP)

               Defendants-Appellants.


                                        ORDER *


Before MURPHY , HOLLOWAY , and McCONNELL , Circuit Judges.


      This matter comes before the Court on the motion by Jesus Falls to recall

the mandate in his case, No. 03-2137, which was entered on March 29, 2004. See

United States v. Jesus Falls and Bernardo Rodriguez, 2004 WL 407039 (10th

Cir., Mar. 5, 2004) (unpublished). Mr. Falls argues that the Supreme Court’s

decisions in Blakely v. Washington, 124 S.Ct. 2531 (2004), and United States v.

Booker, 125 S. Ct. 738 (2005), “demonstrate that he was correct in his sentencing

argument raised on direct appeal and that this court erred in denying relief on that



      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
argument.” Appellant’s Mot., at 3. Be that as it may, the decision in this case

was final when the judgment was affirmed and the time for seeking certiorari

passed. See Griffith v. Kentucky, 479 U.S. 314, 321 n.6 (1987) (“By ‘final,’ we

mean a case in which a judgment of conviction has been rendered, the availability

of appeal exhausted, and the time for a petition for certiorari elapsed or a petition

for certiorari finally denied.”). The proper means for challenging confinement

pursuant to an allegedly unconstitutional sentence is not a motion to recall the

mandate, but a habeas corpus proceeding under 28 U.S.C. § 2255.

      Nothing in the statutes or rules governing the proceedings of the Courts of

Appeals authorizes those courts to recall their mandates, but the Supreme Court

has held they have such “inherent” authority. Calderon v. Thompson, 523 U.S.

538, 549 (1998). The Court has cautioned, however, that “the power can be

exercised only in extraordinary circumstances.” Id. at 550. “The sparing use of

the power demonstrates it is one of last resort, to be held in reserve against grave,

unforeseen, contingencies.” Id.

      Mr. Falls points to prior decisions of this Court recalling the mandate, but

those decisions are easily distinguishable. In Gomez v. New Mexico, 937 F.2d

616 (10th Cir. 1991) (table), 1991 WL 132445, this Court issued its mandate on

June 27, 1991, remanding to the district court for further proceedings. On June

24, 1991, however, the United States Supreme Court handed down a decision


                                          -2-
inconsistent with this Court’s ruling, and indicated that the decision should be

applied retroactively. The appellee filed a motion to recall the mandate “several

days later,” on July 3, 1991. The court granted that motion, explaining that “[t]o

hold otherwise would be to engage in an exercise in futility, requiring the district

court to apply a legal analysis which has now been repudiated by the Supreme

Court.” Id. at 1. This case is different in three ways: (1) the supervening

Supreme Court decision(s) came down after the mandate had issued; (2) the lapse

of time between the mandate and the motion to recall in this case is almost a year,

as opposed to “several days”; and (3) this case would not entail a district court

proceeding pursuant to an erroneous legal analysis. The other cases cited by Mr.

Falls are even farther afield.

      It may be unfortunate, but it is not “grave,” “unforeseen,” or

“extraordinary,” that the Supreme Court renders decisions that are inconsistent

with prior final decisions of the lower courts. The proper avenue for

reconsideration, in cases involving continuing confinement, is via habeas.

Whether relief is available via habeas depends, in part, on whether the Supreme

Court’s supervening rulings are intended to apply retroactively. We have no

occasion to decide, in this case, whether collateral relief is available on a Booker

claim. In United States v. Price, — F.3d —, 2005 WL 535361, (10th Cir., Mar. 8,

2005), at 5, this Court has held that “Blakely does not apply retroactively to


                                          -3-
convictions that were already final at the time the Court decided Blakely, June 24,

2004.”

      The motion to recall this court’s March 29, 2004 mandate is DENIED.

                                               Entered for the Court,

                                               PATRICK FISHER, Clerk




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