                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                     August 24, 2005

                        _______________________                Charles R. Fulbruge III
                                                                       Clerk
                              No. 04-50338
                        _______________________

                       UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                  versus

                   JOSE LOUIS RIVERA, a/k/a Big Joe;
                MICHAEL ANTHONY SANCHEZ, a/k/a 50-50;
                 ERNEST ANDRADE ZUBIATE, a/k/a/ Neto,

                                                    Defendant-Appellants.


           Appeals from the United States District Court
                 for the Western District of Texas,
                           Austin Division
                            03-CR-144(13)


Before DAVIS, JONES, and GARZA, Circuit Judges.

PER CURIAM:*

           Defendants Jose Louis Rivera, Michael Anthony Sanchez,

and Ernest Andrade Zubiate appeal their convictions and sentences

for participating in various criminal enterprises.           At trial, the

Government demonstrated that the three defendants were members of

a criminal gang known as the “Texas Syndicate.”           Finding no error

in their convictions or sentences, we AFFIRM.

           Appellant Rivera challenges his conviction and sentence

on five separate grounds. Rivera, who was charged and convicted on


     *
            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opinion should not be published and is not precedent except under the limited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.
drug conspiracy and RICO charges, claims that his sentence for the

drug conspiracy is multiplicitous of his sentence for the RICO

violation.     In Blockburger v. United States, 284 U.S. 299, 52

S. Ct. 180 (1932), the Supreme Court enunciated the proper test for

determining whether a defendant has been punished twice for the

same offense: “whether each provision requires proof of a fact

which the other does not.”         Id. at 304, 52 S. Ct. 180.       Applying

the Blockburger test does not involve detailed examination of the

facts; rather, the inquiry focuses on the elements of the statutory

offense.     United States v. Odutoya, 406 F.3d 386, 392 (5th Cir.

2005).   To establish a RICO conspiracy, the government must prove

facts beyond the commission of the RICO predicate crimes, even if

the   predicate     crimes   are   also   conspiracies.      See   18   U.S.C.

§ 1962(c); United States v. Krout, 66 F.3d 1420, 1432 (5th Cir.

1995).     Thus, because the RICO count requires proof of a fact

beyond that required to prove a drug conspiracy, the two counts and

sentences are not multiplicitous.            See also United States v.

Cauble, 706 F.2d 1322, 1351 (5th Cir. 1983)(“[A]n indictment

charging     RICO     predicates     as    separate   offenses      is    not

multiplicitous.”).

            Rivera also challenges his sentence under United States

v. Booker, 543 U.S. __, 125 S.Ct. 738 (2005).             Because Rivera did

not raise his Booker objection before the district court, he must

satisfy the plain error test.       United States v. Mares, 402 F.3d 511

(5th Cir. 2005).      Under Mares plain error review, Rivera has the

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burden to show that the error affected his substantial rights by

pointing to evidence in the record that the “sentencing judge--

sentencing under an advisory scheme rather than a mandatory one--

would have reached a significantly different result.”          Id. at 521.

Rivera contends that he need not meet this requirement because he

would automatically receive a life sentence under the Guidelines.

This argument is without merit. The district court could have made

a statement in opposition to the mandatory sentence in the same

manner a district court can state opposition to a guideline range.

Because Rivera points to no such statement, he cannot meet his

burden under Mares.

          Rivera also challenges the sufficiency of evidence for

his conviction on the drug conspiracy charge, and because that

charge served as a predicate crime under RICO, the RICO charge as

well.   This   court   considers   the   evidence   in   the   light   most

favorable to the verdict, drawing all reasonable inferences in

support of the verdict. See, e.g., United States v. Martinez-Lugo,

411 F.3d 597, 599 (5th Cir. 2005).       A jury may infer a conspiracy

from circumstantial evidence, United States v. Fierro, 38 F.3d 761,

768 (5th Cir. 1994), and the uncorroborated testimony of a co-

conspirator may be sufficient to sustain a conviction, Burton v.

United States, 237 F.3d 490, 498 (5th Cir. 2000).        With respect to

the drug conspiracy charge, the individual defendant’s actual

possession of more than five kilograms of cocaine is not necessary

to prove the drug conspiracy charge, as the crux of the offense is

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the agreement.     See United States v. Prieto-Tejas, 779 F.2d 1098,

1103 (5th Cir. 1986) (“In a drug conspiracy prosecution, the

government does not need to show an overt act in furtherance of the

agreement.”).     Further, a guilty defendant need only play a minor

role in the overall scheme to distribute drugs.           Id.    At trial,

several witnesses testified as to the Texas Syndicate’s activities

involving drug distribution and Rivera’s participation therein.

The evidence is sufficient to sustain the drug conspiracy charge,

and consequently, the RICO charge.

           Rivera also challenges his RICO conviction on the grounds

that the Jove Rios murder was unrelated to the criminal enterprise.

This claim fails because a rational jury could have linked that

murder   with    the   enterprise,   as    witnesses   testified     to   the

enterprise’s involvement in and reasons for the murder.

           Rivera, along with appellant Zubiate, argue that the

district court erred in denying their separate motions to sever.

A district court should grant a severance only if a defendant is

able to show that “there is a serious risk that a joint trial would

compromise a special trial right of one of the defendants, or

prevent the jury from making a reliable judgment about guilt or

innocence.”     Zafiro v. United States, 506 U.S. 534, 113 S. Ct. 933,

938   (1993).     Both   Zubiate   and    Rivera   complain   that   it   was

prejudicial for the jury to hear crimes committed by the other

defendants, yet such evidence would have been permissible even if

Zubiate and Rivera were tried alone on RICO charges.            See United

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States v. Castillo, 77 F.3d 1480, 1491 (5th Cir. 1996); see also

Krout, 66 F.3d at 1425 (“The government is not limited in its proof

of   a   conspiracy   or   racketeering   enterprise   to   the   overt   or

racketeering acts alleged in the indictment.”). The district court

committed no error in denying the motions to sever.

            Zubiate further contends that no rational trier of fact

could have found the existence of facts necessary to establish the

elements of his drug conspiracy conviction. As noted above, a jury

may infer a conspiracy from circumstantial evidence, Fierro, 38

F.3d at 768, and the uncorroborated testimony of a co-conspirator

may be sufficient to sustain a conviction, Burton, 237 F.3d at 498.

Here, a witness testified that he supplied Zubiate with drugs for

resale.     Such evidence, combined with the other testimony, was

sufficient to convict.

            Zubiate also challenges his sentence, arguing that it was

error for the district court to refuse to depart downward in

calculating his sentence on the basis that Zubiate’s punishment was

greater than that of his co-defendant Sanchez. Although a district

court may depart downward based on sentence disparities, it is not

mandated to do so.     See United States v. Wright, 211 F.3d 233, 239

(5th Cir. 2000).      The record reveals that the district court was

aware of its discretion to         depart downward, and chose not to

exercise that discretion.      There is no error.1


      1
            Zubiate does not challenge his sentence under United States v.
Booker, 543 U.S. __, 125 S.Ct. 738 (2005).

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               Finally,     Appellant     Sanchez         argues      that    §     5G1.3(b)

prohibits his sentence to run consecutively with his life sentence

for capital murder in the state court. Section 5G1.3(b) would only

apply if Sanchez’s state murder conviction and sentence were “the

basis    for    an   increase      in   the       offense   level     for    the     instant

offense.”         The     record    reveals        that     Sanchez’s       state    murder

conviction was used solely as part of his criminal history, and

that his offense level was based on his drug activity.                                  The

district court did not err in imposing consecutive sentences.                           See

United    States     v.    Marrone,     48        F.3d   735,   738    (3d    Cir.    1995)

(explaining that “where a defendant has previously been convicted

for a RICO predicate act, that conviction should be factored into

the defendant’s criminal history score”).

               Finding no merit to appellants’ various challenges, we

AFFIRM the convictions and imposed sentences.




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