               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT

                       _____________________

                            No. 99-30684
                       _____________________



UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

                              versus

KENNETH LEE DERUISE, also known as T T;
FREDERICK D. STEMLEY,

                                           Defendants-Appellants.
_________________________________________________________________

      Appeals from the United States District Court for the
                  Eastern District of Louisiana
                        USDC No. 98-CR-225
_________________________________________________________________
                         December 6, 2001
Before JOLLY, SMITH, and WIENER, Circuit Judges.

PER CURIAM:1

     Kenneth Deruise and Frederick Stemley were convicted of one

count of conspiring to possess marijuana with intent to distribute,

in violation of 21 U.S.C. §§ 841(a)(1) and 846.    The district court

denied their motions for judgment of acquittal and for a new trial.

Deruise was sentenced to three years’ probation and a $2000 fine.

Stemley was sentenced to sixty-three months’ imprisonment, five

years’ supervised release, and a $3000 fine.          We affirm both


     1
      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this opinion should not be published and is not precedent except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.
convictions,    but   vacate    Stemley’s    sentence    and   remand   for

resentencing.

                                      I

     On appeal, the defendants contend that the district court

erred in failing to grant their Rule 29 motions for acquittal based

on insufficient evidence, and that there was a material variance

between the indictment and the evidence at trial.         They also argue

that the district court erred in admitting into evidence 103 pounds

of marijuana that FBI agents seized on September 8, 1998, after the

conspiracy charged in the indictment had ended2 and after the

indictment was returned.3

     Deruise    claims   that   the   district   court   allowed   improper

impeachment of him.      On cross-examination, Deruise testified that

he had used marijuana only once.          The district court allowed the

prosecutor to elicit rebuttal testimony from New Orleans policemen

who said that they had arrested Deruise twice for possession of

marijuana in August 1998, although neither arrest resulted in a

conviction.    Further, Stemley argues that the district court erred

under Apprendi v. New Jersey, 530 U.S. 466 (2000), in imposing a

sentence above the statutory maximum in the absence of a jury

finding as to the quantity of marijuana involved, and that the



     2
      The indictment charged a conspiracy between the dates of
“about May 1998, and continuing through July 1998.”
     3
      The indictment was returned on September 4, 1998.

                                      2
district    court    sentenced     him    for     more    marijuana    than    he    is

accountable for under the sentencing guidelines.

                                         II

                                          A

     We begin with the Rule 29 motions for acquittal.                     We review

the denial of a Rule 29 motion de novo.             United States v. Restrepo,

994 F.2d 173, 182 (5th Cir. 1993).

     To prove a conspiracy under 21 U.S.C. § 846 in this case, the

government must show:       (1) the existence of an agreement between

two or more persons to possess and distribute drugs in violation of

federal    narcotics    laws;    (2)     that     the    defendant    knew    of    the

agreement; and (3) that the defendant voluntarily participated in

the agreement.      United States v. Gallo, 927 F.2d 815, 820 (5th Cir.

1991) (citations       omitted).         These    elements    may    be   proved     by

circumstantial       evidence,         and       “[c]ircumstances         altogether

inconclusive, if separately considered, may, by their number and

joint operation . . . be sufficient to constitute conclusive

proof.”    United States v. Roberts, 913 F.2d 211, 218 (5th Cir.

1990) (quotation marks and citations omitted).

     In sum, the government’s principal evidence against Deruise,

that is, the evidence to prove that he was part of a conspiracy to

possess and distribute marijuana, consisted of:                testimony from an

FBI agent and a co-conspirator that the word “t-shirt” as used in

the recorded conversations was one of the code words for cocaine or



                                          3
marijuana; that Deruise called Norman Scott and asked for “t-

shirts” or otherwise sought drugs through code words; and that

Deruise arranged to purchase one pound of marijuana and requested

an additional three pounds.         Deruise insists that he asked for t-

shirts because he really wanted t-shirts.

       The jury heard all the evidence and could reasonably conclude

that Deruise was knowingly involved in a conspiracy to possess and

distribute marijuana.           A co-conspirator “need not know all the

details of the unlawful enterprise, or know the exact number and

identity of all the co-conspirators, so long as in some fashion he

or   she   knowingly     participates       in   the    larger    conspiratorial

objectives.”      United States v. Greenwood, 974 F.2d 1449, 1456 (5th

Cir. 1992).      We have held that the common goal of deriving personal

gain from the illicit business of buying and selling cocaine

constitutes a single conspiracy.            See United States v. Morris, 46

F.3d 410, 415 (5th Cir. 1995).          There was sufficient evidence to

show    that   Deruise   shared     such    a    common   goal,    and   that   he

voluntarily agreed with Scott to possess and distribute marijuana.

We therefore affirm his conviction.

                                        B

       Stemley also filed a Rule 29 motion for acquittal, which the

district court denied.          The evidence against Stemley is strong.

The government presented evidence that (1) Stemley placed eleven

phone    calls    to   Scott,    one   of    which     related    to   purchasing



                                        4
“chickens,” a code word for marijuana, and others relating to

leaving drug money for Scott to pick up or paying drug money to

Scott directly; (2) Stemley purchased two pounds of marijuana from

Scott on July 5, 1998; (3) Stemley purchased five pounds of

marijuana from Scott on July 22; (4) Stemley arranged to leave drug

profits at Scott’s home for another person to pick up; and (5)

three co-conspirators testified that they had seen Stemley and

Scott together.

     The evidence is clearly sufficient to permit a rational jury

to find him guilty as a participant in a conspiracy to possess and

distribute    drugs   in   violation     of    federal    narcotics     law.   We

therefore find no error in the district court’s denial of Stemley’s

Rule 29 motion.

                                       III

     Deruise also argues that the district court allowed improper

impeachment    testimony     of   him        relating    to   alleged    previous

possession of marijuana.          Although we have doubts as to the

admissibility of this testimony under Federal Rules of Evidence 403

and 404, we hold that it was harmless given the other evidence

against Deruise.

                                        IV

     Deruise and Stemley further contend that the district court

abused its discretion in admitting into evidence the 103 pounds of

marijuana seized on September 8, 1998.              They argue this was not



                                        5
relevant evidence under Federal Rule of Evidence (“FRE”) 401, and

that it was unduly prejudicial evidence of other bad acts under

Federal Rules of Evidence 403 and 404(b) and United States v.

Beechum, 582 F.2d 898 (5th Cir. 1978) (en banc).                   The defendants

objected to the admission of this evidence at trial, and we review

the district court’s evidentiary ruling on this matter for an abuse

of discretion.     United States v. Navarro, 169 F.3d 228, 232 (5th

Cir. 1999), cert. denied, 528 U.S. 845 (1999).

     “‘Other act’ evidence is ‘intrinsic’ when the evidence of the

other act and evidence of the crime charged are ‘inextricably

intertwined’ or both acts are part of a ‘single criminal episode’

or the other acts were ‘necessary preliminaries’ to the crime

charged.” United States v. Williams, 900 F.2d 823, 825 (5th Cir.

1990).     Such evidence is admissible to complete the story of a

crime by proving the immediate context of events in time and place.

United States v. Kloock, 652 F.2d 492, 494-95 (5th Cir. 1981).

Intrinsic    evidence    does        not       implicate    Rule        404(b),   and

“consideration of its admissibility pursuant to                    Rule 404(b) is

unnecessary.”     United States v. Garcia, 27 F.3d 1009, 1014 (5th

Cir.), cert. denied, 513 U.S. 1009 (1994).                        We believe this

evidence    was   intrinsic,    in    that      it   was   part    of    the   single

conspiracy to possess and distribute marijuana charged by the

government, i.e., part of a “single criminal episode.”                      Although

the indictment charged a conspiracy from May through July 1998,



                                           6
evidence     seized      after   these    dates    can     be   probative     of   that

conspiracy.        Thus    there   is    no    need   to   consider     FRE   404(b).

Further, although the evidence here was seized after the return of

the indictment, we have previously upheld the admission of evidence

seized after the alleged conspiracy had ended and the indictment

had been returned.          See United States v. Navarro, 169 F.3d 228,

231-33 (5th Cir. 1999).          Thus it was not an abuse of discretion to

admit the marijuana simply because it was seized after the return

of the indictment.

       We must also consider whether the admission of the marijuana

into evidence was unduly prejudicial under FRE 403.                     The parties

point to United States v. Torres, 685 F.2d 921 (5th Cir. 1982) and

to Navarro.        In Torres, the district court admitted evidence of

“sample transactions” that occurred prior to the dates alleged in

the indictment, because the evidence of the sample transactions and

the    evidence     of    the    charged       conspiracy       were   “inextricably

intertwined” and formed a “natural and integral” part of the

surrounding circumstances.              685 F.2d at 924.           In Navarro, the

district court admitted evidence of drugs seized in January 1997,

even though the alleged conspiracy ended in September 1996.                         The

court concluded that the 1997 evidence “demonstrated the structure

of    the   drug   organization,     as    well    as    the    continuing    contact

between” the defendants.           169 F.3d at 233.




                                           7
       The evidence here was part of the single conspiracy alleged,

and demonstrated its nature and scope. It was probative, and given

its intrinsic nature was not unduly prejudicial.            We hold that the

district court did not abuse its discretion in admitting this

evidence.

                                         V

       The defendants also assert that there was a material variance

between the indictment and the evidence presented at trial, and

that   they    were   prejudiced    by   this.     The   second   superseding

indictment alleged that the defendants conspired “with each other

and with other persons known and unknown to the Grand Jury . . . .”

The defendants claim that at most the government proved individual

two-person conspiracies, and not the umbrella conspiracy alleged in

the indictment.       The defendants raised this objection at trial.

“To prevail on a material variance claim, these defendants must

prove (1) a variance between the indictment and the proof at trial,

and (2) that the variance affected their substantial rights.”

United States v. Morgan, 117 F.3d 849, 858 (5th Cir.), cert.

denied, 522 U.S. 987 (1997).

       “With   variance,   our     concern   is   whether   the   indictment,

assuming it has otherwise alleged the elements of the offense, has

so informed a defendant that he can prepare his defense without

surprise and has protected him against a second prosecution for the

same offenses.”       United States v. Cochran, 697 F.2d 600, 604 (5th



                                         8
Cir. 1983)      (citation    omitted).          The       indictment   in    this    case

informed the defendants of the charge of conspiracy to possess and

distribute marijuana, the dates of the conspiracy and the identity

of   the   other    named   defendants.              We   are   convinced     that    the

defendants in this case were sufficiently informed of the nature of

the case and were protected against a second prosecution.

      Additionally, whether the evidence shows one or multiple

conspiracies is a question of fact for the jury.                     Morgan, 117 F.3d

at 858.     The evidence and analysis in Part II of the opinion

demonstrate that the jury could reasonably find one conspiracy. We

therefore hold that there was no material variance between the

indictment and the proof at trial.

                                          VI

      Stemley      also   contends   that       the       district   court    erred   in

sentencing him, and raises three sentencing issues.                          “We review

factual findings made by a district court for sentencing purposes

under the clearly erroneous standard, and review the district

court's    legal     application     of        the    United     States      Sentencing

Guidelines [] de novo.”        United States v. Franklin, 148 F.3d 451,

459 (5th Cir. 1998).         However, Stemley failed to object to the

Presentence Investigation Report’s (“PSR”) or the district court’s

marijuana calculations at the sentencing hearing. When a defendant

raises a sentencing issue for the first time on appeal, we review




                                          9
for plain error only.     United States v. Vasquez-Zamora, 253 F.3d

211, 213 (5th Cir. 2001).

                                     A

     Stemley first contends that the district court miscalculated

the quantity of marijuana delivered to Scott.          The district court

accepted the PSR’s finding that Alexander Cruz delivered 375 pounds

of marijuana to Scott.        However, at trial Cruz only testified to

delivering between 290 and 310 pounds of marijuana, and Eugene

Haynes testified to delivering four pounds of marijuana to Scott.

Even if this is an error, it is harmless.          Under the United States

Sentencing Guidelines, 375 pounds of marijuana and 314 pounds of

marijuana (or 170.1 kilograms and 142.4 kilograms, respectively)

fall under the same sentencing level.             See U.S.S.G. § 2D1.1(c)

(Drug Quantity Table) (offenses involving between 100 kilograms and

400 kilograms of marijuana fall under Level 26).

                                     B

     Stemley also contends that the district court erred in holding

him accountable for the total quantity of drugs attributable to the

conspiracy.    However, when sentencing a defendant involved in a

drug trafficking conspiracy, the quantity to be considered for

sentencing    purposes   includes    both   the    drugs   with   which    the

defendant    was   directly    involved   and   the   drugs   that   can    be

attributed to him through the conspiracy.          United States v. Brito,

136 F.3d 397, 415 (5th Cir.), cert. denied, 523 U.S. 1128, 524 U.S.



                                     10
962,   525     U.S.   867   (1998).         Additionally,       “involvement     in    a

conspiracy is presumed to continue and will not be terminated until

the co-conspirator acts ‘affirmatively to defeat or disavow the

purpose of the conspiracy.’” United States v. Pofahl, 990 F.2d

1456, 1484 (5th Cir.), cert. denied, 510 U.S. 898, 996 (1993).

There is no evidence that Stemley acted to withdraw from the

conspiracy.      We hold that the district court did not err in holding

Stemley       accountable    for      the        total   quantity    of     marijuana

attributable to the conspiracy.

                                            C

       The    government    concedes    that        Stemley’s    sentence    must     be

modified in the light of Apprendi v. New Jersey, 530 U.S. 466

(2000).      “If the government seeks enhanced penalties based on the

amount of drugs . . . , the quantity must be stated in the

indictment and submitted to a jury for a finding of proof beyond a

reasonable doubt . . . .”          United States v. Doggett, 230 F.3d 160,

164-65 (5th       Cir.   2000)   (applying         Apprendi).       This   Court    has

clarified that “[t]he decision in Apprendi was specifically limited

to facts which increase the penalty beyond the statutory maximum .

. . .”       Id. at 166.    The government’s position at trial was that

the    conspiracy     involved     approximately         1000   pounds     (or   453.6

kilograms) of marijuana, which would have resulted in a prison term

of at least five but not more than forty years.                     See 21 U.S.C. §

841(b)(1)(B)(vii) (“In the case of a violation . . . involving . .



                                            11
. 100 kilograms or more of . . . marijuana . . . such person shall

be sentenced to a term of imprisonment which may not be less than

5 years and not more than 40 years.”).

     Because this drug quantity was not alleged in the indictment,

the government concludes that the maximum term of imprisonment

would be sixty months followed by at least two years of supervised

release, consistent with an unspecified quantity of marijuana in

the indictment.   See 21 U.S.C. § 841(b)(1)(D) (“In the case of less

than 50 kilograms of marihuana, . . . such person shall . . . be

sentenced to a term of imprisonment of not more than 5 years.”).

Because Stemley was sentenced to sixty-three months’ imprisonment

and five years’ supervised release, the government agrees that

Stemley’s sentence is the result of plain error and must be

modified accordingly.

                                 IV

     We AFFIRM Deruise’s and Stemley’s convictions, but VACATE

Stemley’s sentence and REMAND for resentencing consistent with this

opinion.

           AFFIRMED IN PART, VACATED IN PART, AND REMANDED IN PART




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