                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                ________________

                                   No. 06-2228
                                ________________

United States of America,              *
                                       *
             Appellee,                 *
                                       *      Appeal from the United States
      v.                               *      District Court for the
                                       *      District of Nebraska.
Manuel Cubillos,                       *
                                       *
             Appellant.                *
                                ________________

                          Submitted: November 17, 2006
                              Filed: January 26, 2007
                               ________________

Before BYE, BOWMAN and GRUENDER, Circuit Judges.
                        ________________

GRUENDER, Circuit Judge.

       Manuel Cubillos appeals his conviction for conspiracy to distribute or possess
with intent to distribute 500 grams or more of a mixture or substance containing
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1) and 846. He also
appeals the sentence of 151 months’ imprisonment imposed by the district court.1 For
the reasons discussed below, we affirm the conviction and sentence.




      1
        The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
I.    BACKGROUND

       On March 3, 2005, law enforcement officers intercepted Raul Jimenez driving
9.8 pounds of methamphetamine from Minnesota to Norfolk, Nebraska. As a result
of the associated investigation, a federal grand jury indicted Manuel Cubillos on one
count of conspiracy to distribute or possess with intent to distribute
methamphetamine. The case proceeded to jury trial.

        At trial, the Government introduced evidence from authorized FBI telephone
intercepts and testimony from four co-conspirators to demonstrate the parameters of
the conspiracy and Cubillos’s involvement. FBI Special Agent Drew Armstrong
testified that on February 28, 2005, the FBI intercepted a telephone call from Pablo
Landin of Norfolk, who had been the subject of a lengthy FBI investigation. In the
telephone conversation, Landin asked an unidentified individual to deliver four
pounds of methamphetamine to Norfolk. Over the next few days, additional
intercepted telephone conversations enabled FBI agents to determine that Jimenez
would be driving methamphetamine from Minnesota to Landin’s house in Norfolk on
Highway 81 in a green minivan with a Minnesota license plate. The FBI notified the
Nebraska State Patrol to watch for the vehicle. Nebraska State Trooper Timothy
Stopak testified that he identified a vehicle matching the description and clocked it
traveling in excess of the posted speed limit. Trooper Stopak initiated a traffic stop,
and Jimenez consented to a search of the vehicle. Trooper Stopak discovered the 9.8
pounds of methamphetamine in the vehicle.

       Special Agent Armstrong also testified that the FBI was conducting authorized
telephone intercepts of Norfolk resident Jesus “Jesse” Padilla and the telephone line
for Padilla’s business, an auto-mechanic shop. Five of these intercepted calls were
introduced into evidence during the testimony of Mary Moler-Cubillos, Cubillos’s ex-
wife and co-defendant. In one call from November 2004, Moler-Cubillos asked
Padilla if she could obtain methamphetamine, and Padilla referred her to Cubillos. In

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another call intercepted a few days later, Moler-Cubillos, Cubillos and Padilla all
discussed obtaining methamphetamine. Cubillos then went on military duty to Iraq
and was absent from Norfolk until February 2005. In a final call intercepted on March
10, 2005, Cubillos and Padilla again discussed methamphetamine. Moler-Cubillos
also testified that Cubillos provided her and others with methamphetamine in the fall
of 2004 and in February 2005.

        Co-conspirator Benjamin Sukup testified that in the fall of 2004 he was buying
about one pound of methamphetamine per month from Padilla and reselling almost
all of it. Sukup knew that Padilla was obtaining the methamphetamine from Landin
because he occasionally accompanied Padilla to Landin’s home to make those
purchases. Sukup testified that he sold one to four “eight-balls,” or one-eighth-ounce
quantities, of methamphetamine to Cubillos every one to two days. Sukup would
often make these sales to Cubillos at Padilla’s shop. Sukup testified that these sales
resumed for about a week when Cubillos returned to Norfolk in February 2005.
Sukup also testified that Padilla made him aware of Landin’s incoming
methamphetamine shipment in March 2005 and told him that Landin would “have us
covered” with high-quality methamphetamine.

       Co-conspirator Mollie Moler, an adult daughter of Moler-Cubillos and step-
daughter of Cubillos, also testified. Moler lived with Padilla and was a friend of
Landin. Moler testified that she delivered methamphetamine and cocaine from Landin
to Cubillos in the spring of 2005. Moler purchased packaging materials for the
methamphetamine shipment expected by Landin on March 3, 2005, and she was
waiting for the shipment at Landin’s house that day. Landin had given Moler a
sample of the methamphetamine, and, with Landin’s knowledge, Moler had shared
this sample with Cubillos and Moler-Cubillos.

        Finally, co-conspirator Edgar Zavala-Lopez, an employee at Padilla’s shop,
testified that he was a frequent visitor at Landin’s house. He first had met Landin

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when Padilla instructed him to pick up drugs from Landin and deliver them to
Cubillos. Eventually, Zavala-Lopez began purchasing methamphetamine from
Cubillos. Zavala-Lopez testified that he overheard Landin on the phone stating that
he expected a shipment of “four of coke . . . and four of ice [methamphetamine]” and
that Cubillos was to receive the “ice” for distribution in Norfolk. On cross-
examination, Zavala-Lopez also stated that Cubillos himself had told Zavala-Lopez
that Cubillos would be receiving some of that methamphetamine.

       The jury returned a verdict of guilty, and the district court denied Cubillos’s
motion for judgment of acquittal or, in the alternative, for a new trial. Cubillos was
sentenced to 151 months’ imprisonment. He now appeals his conviction, arguing that
(1) the evidence was insufficient to support the conviction, (2) he was prejudiced by
evidence of multiple conspiracies, and (3) the district court erred in rejecting his
proposed theory-of-defense instruction. He also appeals his sentence, arguing that (1)
he should have received a minor role reduction, (2) he should have received a
downward departure based on his extensive military service, and (3) his sentence was
unreasonable.

II.   DISCUSSION

      A.     Sufficiency of the Evidence

      With respect to the denial of Cubillos’s motion for judgment of acquittal,2 we
review the sufficiency of the evidence de novo, viewing the evidence in the light most
favorable to the government, making all reasonable inferences and credibility
determinations in support of the jury’s verdict. United States v. Kelly, 436 F.3d 992,
996 (8th Cir. 2006). “We will reverse a conviction for lack of sufficient evidence only
if no reasonable juror could have concluded beyond a reasonable doubt the


      2
       Cubillos does not appeal the denial of his alternative motion for a new trial.

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government met its burden of proof as to each element of the offense.” United States
v. Smith, 450 F.3d 856, 860 (8th Cir. 2006).

       The elements of conspiracy are (1) the existence of an agreement to achieve an
illegal purpose, (2) the defendant’s knowledge of the agreement, and (3) the
defendant’s knowing participation in the agreement. United States v. Johnson, 439
F.3d 947, 954 (8th Cir. 2006). The agreement may be a tacit understanding rather
than a formal, explicit agreement. Id. “[E]vidence of association or acquaintance is
a relevant factor but alone is insufficient to establish a conspiracy.” United States v.
Winston, 456 F.3d 861, 866 (8th Cir. 2006).

        Cubillos contends that the evidence, even in the light most favorable to the
Government, shows only that he was acquainted with members of the conspiracy and
had a methamphetamine buyer-seller relationship with some of them. We disagree.
Sukup’s testimony showed that Landin regularly supplied methamphetamine for resale
to Padilla, who was providing it to Sukup, who was in turn selling it to Cubillos at
Padilla’s shop.        Moler-Cubillos testified that she and others obtained
methamphetamine from Cubillos, and Zavala-Lopez also testified to obtaining
methamphetamine from Cubillos. Moler testified that she delivered methamphetamine
directly from Landin to Cubillos and provided Cubillos with a sample of the shipment
Landin was expecting to receive on March 3, 2005. Zavala-Lopez testified that he
overheard Landin stating that the methamphetamine shipment was destined to be
distributed by Cubillos. This testimony, if believed, is more than sufficient to allow
a reasonable juror to conclude that Cubillos had at least a tacit agreement to participate
in the distribution of methamphetamine. Cubillos challenges the believability of much
of this testimony, but “[w]e are obliged to defer to the jury’s determination of the
credibility of the witnesses.” United States v. Lopez, 443 F.3d 1026, 1031 (8th Cir.
2006) (en banc), cert. denied, ___ U.S. ___, 127 S. Ct. 214 (2006). Therefore, we
hold that the evidence was sufficient to support the jury’s verdict.



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      B.     Evidence of Multiple Conspiracies

        Cubillos contends that the Government offered proof of multiple conspiracies
at trial, creating a variance from the single conspiracy charged in the indictment. In
essence, Cubillos argues that the evidence was not sufficient to connect him to the
large quantity of methamphetamine seized from the green minivan. Whether the
Government’s proof at trial established only a single conspiracy or multiple
conspiracies is a question of fact, reviewed for clear error. United States v. Benford,
360 F.3d 913, 914 (8th Cir. 2004). “We will reverse only if we find the evidence
adduced at trial does not support a finding of a single conspiracy, and we determine
[the defendant] was prejudiced by the variance.” Id.

       To determine whether the evidence suggests a single conspiracy or multiple
conspiracies, we consider factors such as “the nature of the activities, the location
where the alleged events of the conspiracy occurred, the identity of the co-
conspirators, and the time frame.” United States v. Burns, 432 F.3d 856, 863 (8th Cir.
2005). In the instant case, all of the Government’s evidence involved the same
individuals—Landin, Padilla, Cubillos, Zavala-Lopez, Sukup, Moler and Moler-
Cubillos—working with each other to conduct the same activity, distribution of
methamphetamine, in the same location, Norfolk, throughout the time frame alleged
in the indictment, September 2004 through June 2005. As a result, the evidence
“amply supports” the jury’s conclusion that Cubillos was guilty of the single
conspiracy charged. See Benford, 360 F.3d at 914; see also Burns, 432 F.3d at 863-64
(affirming the district court’s rejection of a multiple conspiracy instruction where “the
evidence showed an agreement to distribute methamphetamine involving the same
individuals in the same locations . . . throughout the time period”). Furthermore, the
district court thoroughly instructed the jury on multiple conspiracies, including the
jury’s duty to acquit if it found Cubillos participated only in some conspiracy other
than the one charged, thereby vastly reducing any risk of prejudice from a variance.



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See United States v. Morales, 113 F.3d 116, 120 (8th Cir. 1997).3 As a result, we find
no error in Cubillos’s conviction on the single conspiracy charged in the indictment.

      C.     Theory-of-Defense Instruction

       Cubillos contends that the district court erred in rejecting his proffered theory-
of-defense instruction. We review the district court’s formulation of jury instructions
for abuse of discretion. United States v. Milk, 281 F.3d 762, 768 (8th Cir. 2002).
“Generally, the defendant is not entitled to any particular instruction if the given
instructions, ‘when viewed as a whole, correctly state the applicable law and
adequately and fairly cover the substance of the requested instruction.’” Id. (quoting
United States v. Parker, 32 F.3d 395, 400 (8th Cir. 1994)).

      Cubillos requested a jury instruction stating that, if the jury found he was a
mere buyer and user of methamphetamine, he would not be a member of the charged
conspiracy. The district court refused the instruction on the grounds that it was
already covered by Jury Instruction No. 9, which stated:

      You should understand that merely being present at the scene of an
      event, or merely acting in the same way as others or merely associating
      with others, does not prove that a person has joined in an agreement or
      understanding. A person who has no knowledge of a conspiracy but who
      happens to act in a way which advances some purpose of one, does not
      thereby become a member.



      We previously have held that this same instruction correctly states the
applicable law and adequately and fairly covers the substance of a “mere buyer”

      3
       The Government’s evidence included some indications of a separate
conspiracy to distribute cocaine, but Cubillos does not argue he was prejudiced by this
evidence. We would find that this ancillary evidence was not prejudicial in any event.

                                          -7-
theory-of-defense instruction such as the one requested by Cubillos. See United States
v. Hester, 140 F.3d 753, 757 (8th Cir. 1998). Accordingly, we find that the district
court did not abuse its discretion in rejecting Cubillos’s proffered theory-of-defense
instruction.

      D.     Sentencing

      The Presentence Investigation Report determined Cubillos to have a total
offense level of 34 and a criminal history category of II. The district court granted a
one-category downward departure to criminal history category I under United States
Sentencing Guidelines § 4A1.3, resulting in an advisory guidelines range of 151 to
188 months. The district court denied a request for a § 3B1.2 minor-role reduction
and a motion for a § 5K2.0 downward departure. Cubillos was sentenced to 151
months’ imprisonment, the lower end of the advisory guidelines range.

       Cubillos first argues that he should have received a § 3B1.2 minor-role
reduction. We review the district court’s decision regarding a minor-role reduction
for clear error. United States v. Salvador, 426 F.3d 989, 993 (8th Cir. 2005). “The
propriety of a downward adjustment is determined by comparing the acts of each
participant in relation to the relevant conduct for which the participant is held
accountable and by measuring each participant’s individual acts and relative
culpability against the elements of the offense.” Id. (quotation omitted). However,
“merely showing the defendant was less culpable than other participants is not enough
to entitle the defendant to the adjustment if the defendant was ‘deeply involved’ in the
offense.” United States v. Bush, 352 F.3d 1177, 1182 (8th Cir. 2003). The defendant
bears the burden of establishing entitlement to the reduction. Salvador, 426 F.3d at
993.

       The evidence before the district court showed that Cubillos’s role was to
distribute methamphetamine, the intended object of the conspiracy. This is more than

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sufficient to show deep involvement in the offense. Cf. United States v. Lopez-
Vargas, 457 F.3d 828, 831 (8th Cir. 2006) (affirming the denial of a minor-role
reduction to a conspirator whose role was to transport the cash proceeds from a
narcotics conspiracy); Salvador, 426 F.3d at 994 (affirming the denial of a minor-role
reduction to a conspirator whose “primary role in the [narcotics] conspiracy was as
a translator”). In particular, we have consistently rejected Cubillos’s argument that
a distributor of controlled substances deserves a minor-role reduction simply because
of the presence of a larger-scale upstream distributor. See, e.g., United States v.
Thompson, 60 F.3d 514, 517 (8th Cir. 1995) (“Taken to its logical conclusion,
Thompson’s position would mean that every participant in every drug distribution
scheme would be presumably entitled to a minor participant reduction so long as he
or she were able to prove the existence of an upstream drug supplier. We reject this
logic . . . .”). Therefore, the district court did not clearly err in denying a minor role
reduction for Cubillos.

       Cubillos next contends that the district court should have granted him a
§ 5K2.0 downward departure based on his military service and associated post-
traumatic stress disorder. “The discretionary denial of a motion for downward
departure is unreviewable unless the court failed to recognize its authority to depart.”
United States v. Vasquez, 433 F.3d 666, 670 (8th Cir. 2006) (quotation omitted). In
the instant case, the sentencing transcript reflects that the district court recognized its
authority to depart while considering Cubillos’s motion for a downward departure.
As a result, the district court’s denial of the motion is unreviewable.

       Finally, Cubillos argues that his sentence is unreasonable with respect to the
factors set forth in 18 U.S.C. § 3553(a). Our review of a sentence for reasonableness
is akin to our traditional review for abuse of discretion. United States v. Lazenby, 439

F.3d 928, 931-32 (8th Cir. 2006). A district court imposes an unreasonable sentence
if it:

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       fails to consider a relevant factor that should have received significant
       weight, gives significant weight to an improper or irrelevant factor, or
       considers only appropriate factors but nevertheless commits a clear error
       of judgment by arriving at a sentence that lies outside the limited range
       of choice dictated by the facts of the case.

United States v. Haack, 403 F.3d 997, 1004 (8th Cir. 2005), cert. denied, ___ U.S.
___, 126 S. Ct. 276 (2005).

       Cubillos contends that the district court should have imposed a shorter sentence
based on Cubillos’s military career, his post-traumatic stress disorder and his drug
dependency. The record reflects that the district court took these factors into account
in determining Cubillos’s sentence, and we cannot say that the sentence imposed “lies
outside the limited range of choice dictated by the facts of the case.” Id. Accordingly,
we hold that Cubillos’s sentence is reasonable.

III.   CONCLUSION

       We conclude that the evidence was sufficient to support Cubillos’s conviction
on the charged conspiracy and that the district court did not err in rejecting Cubillos’s
proposed theory-of-defense instruction or in imposing his sentence. Therefore, we
affirm the conviction and sentence.
                       ______________________________




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