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

                                                                             FILED
                                                                         November 16, 2007

                                       No. 07-50316                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee
v.

GUADALUPE SANCHEZ GALINDO, JR.

                                                   Defendant-Appellant



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:06-CR-156-2


Before WIENER, DeMOSS, and PRADO, Circuit Judges.
PER CURIAM:*
       Appellant Guadalupe Sanchez Galindo, Jr. (“Galindo”) was charged with
aiding and abetting the possession with intent to distribute 500 grams or more
of cocaine.1 Following his jury trial conviction, the district court sentenced


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
       1
         The language of the indictment must be read as charging each defendant with
possession with intent to distribute and with aiding and abetting the possession with intent
to distribute. The trial judge instructed the jury as to the requirements for finding the
defendant guilty of both possession with intent to distribute and aiding and abetting. The jury
form, however, permitted only a verdict of guilty as charged in the indictment, which includes
both possession with intent to distribute and aiding and abetting. As the jury could have found
                                       No. 07-50316

Galindo to 93 months in prison. Galindo timely appealed alleging three points
of error: (1) that the evidence was insufficient to support his conviction, (2) that
the district court erred in admitting certain testimony over hearsay and
confrontation clause objections, and (3) that the district court erred in refusing
to grant Galindo a two level reduction for his role as a minor participant. For the
following reasons, we affirm.
                                              I.
       By grand jury indictment dated August 23, 2006, Galindo was charged
with one count of aiding and abetting the possession with intent to distribute
500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and
18 U.S.C. § 2. He pleaded not guilty and proceeded to a jury trial.
       The investigation that ultimately resulted in Galindo’s indictment began
when informant William Carter Ray (“Ray”) agreed to assist police by
coordinating a cocaine purchase. Ray testified that on July 27, 2006, he
contacted his normal supplier, Victor Alvarez, in Mexico and agreed to purchase
one kilogram of cocaine for $17,000. Ray testified that Alvarez informed him that
Galindo and his associate, Jose Gardea, were “out on a job,” but that they would
send someone to deliver the cocaine when they got back. Ray further testified
that he was acquainted with Galindo and that Galindo and Alvarez had “done
business” together in the past. Ray stated that he believed Alvarez and Galindo
were still dealing drugs together. In return for Ray’s testimony, the Government
recommended a reduced sentence for his pending drug charge.
       Ray told police that he believed the drugs would come from a house that
police identified from Ray’s description as 1016 North Lee in Odessa, Texas.
That same day, police set up surveillance at that address and observed several


the defendant guilty of (1) the substantive crime of possession with intent to distribute, (2)
aiding or abetting the possession with intent to distribute, or (3) possession with intent to
distribute and aiding abetting the possession with intent to distribute, we address all three
possibilities.

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individuals, including Galindo, Chris Vargas, and Jose Gardea, coming and
going from the residence. Late in the afternoon, Vargas left 1016 North Lee and
went directly to Ray’s residence, where police arrested Vargas, who was in
possession of one kilogram of cocaine.
      Shortly after Vargas left the 1016 North Lee residence, police arrested
Galindo and Gardea as they attempted to leave. Police then obtained a warrant
and searched the residence. During the search, officers found cocaine powder on
the kitchen table and floor, a box containing two baggies of cocaine in a kitchen
cabinet, a bowl with white powder residue, two bags of marijuana, some cocaine
wrapped in a dollar bill, digital scales, and empty bottles of inositol and acetone,
which, according to testimony at trial, are used as cutting agents for cocaine. The
parties stipulated that police recovered more than one kilogram of cocaine at the
residence. Additionally, testimony established that Galindo’s fingerprint was
found on one of the baggies of cocaine.
      In addition to finding the drugs and related items, police recovered
evidence tying Galindo to the residence, including personal mail and bills
addressed to him there. The Government presented additional evidence
indicating that Galindo resided at 1016 North Lee: (1) the water utility for the
residence was in Galindo’s name, (2) Galindo gave the 1016 North Lee address
as his of place residence when he was arrested, and (3) the property was owned
by Robert and Nadia Galindo, presumably relatives of Galindo.
      Based on this evidence, the jury convicted Galindo of the sole count of the
indictment. The district court sentenced Galindo to 93 months in prison, refusing
Galindo’s request for a two-point offense level reduction based on his allegedly
minor role in the crime. As mentioned, Galindo argues that: (1) the evidence was
insufficient to support his conviction, (2) the district court erred in admitting
certain testimony over hearsay and confrontation clause objections, and (3) the



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district court erred in refusing to grant Galindo a two level reduction for his role
as a minor participant. We examine each in turn.
                                         II.
                        A. Sufficiency of the Evidence
      Galindo argues that the evidence presented at trial was insufficient to
sustain his conviction. This court reviews properly preserved sufficiency of the
evidence claims “by viewing the evidence and the inferences that may be drawn
from it in the light most favorable to the verdict and determining whether a
rational jury could have found the essential elements of the offenses beyond a
reasonable doubt.” United States v. Arnold, 467 F.3d 880, 883 (5th Cir. 2006)
(internal quotation marks omitted). “[C]redibility determinations are the sole
province of the jury” and will not be disturbed by the court. See United States v.
Cathey, 259 F.3d 365, 368 (5th Cir. 2001). Further, the court only considers
whether “the jury made a rational decision,” not whether it correctly determined
the defendant’s guilt or innocence. United States v. Alarcon, 261 F.3d 416, 421
(5th Cir. 2001) (internal quotation marks omitted).
      The indictment alleged that Galindo, Gardea, and Vargas “aided and
abetted by each other, unlawfully, knowingly, and intentionally possessed with
intent to distribute . . . 500 grams or more of . . . cocaine.” This language allowed
the jury to find that Galindo intentionally possessed 500 or more grams of
cocaine with the intent to distribute, that Galindo aided and abetted the others
to do so, or both. See 18 U.S.C. § 2 (stating that anyone who “commits an offense
against the United States or aids [or] abets . . . is punishable as a principal”).
      To convict Galindo of possession with the intent to distribute, the
Government had to prove that Galindo (1) knowingly (2) possessed cocaine (3)
with the intent to distribute. See United States v. Rojas Alvarez, 451 F.3d 320,
333 (5th Cir. 2006). To convict under the aiding and abetting theory, the
Government had to prove that the underlying substantive offense occurred and

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that Galindo “(1) associated with a criminal venture; (2) participated in the
venture; and (3) sought by action to make the venture successful.” Id. (internal
quotation marks omitted).
      Regarding the first theory, the Government argues that the evidence
supports Galindo’s conviction. We agree. First, the Government presented
evidence that, if believed, clearly establishes that Galindo knowingly possessed
cocaine. Possession in this context can be actual or constructive. Arnold, 467
F.3d at 883. Constructive possession exists if “the defendant knowingly has
ownership, dominion or control over the contraband itself or over the premises
in which the contraband is concealed.” Id. (internal quotation marks omitted).
      The Government argues that Galindo resided at 1016 North Lee, and thus,
he had dominion and control over the premises either as a sole occupant or a
joint occupant. Although Galindo, his girlfriend, and acquaintance Ubaldo
Sanchez testified that Galindo did not reside at that address, the Government
presented substantial evidence to the contrary. For example, when Galindo was
arrested he gave the 1016 North Lee address as his place of residence, police
seized mail addressed to him at that address, the water utility for the home was
listed under his name, he had a key, and he was responsible for paying the
property taxes. This evidence allowed a rational jury to find that Galindo resided
at 1016 North Lee and to reject testimony to the contrary. Cf. Arnold, 467 F.3d
at 883 (finding the Government cited ample evidence of the defendant’s
dominion and control over the house when defendant (1) rented the property in
his name and paid rent, (2) changed the lock after moving in, (3) installed a
video surveillance system, (4) paid all utility bills, and (5) listed the address on
his driver’s license and automobile insurance). While the facts of this case differ
somewhat from Arnold, the evidence here would allow a rational jury to reach
the same result.



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      When only one person resides at an address they are deemed to have
dominion and control over the premises and items therein. See id. at 883-84.
However, in the case of joint occupants, constructive possession requires “some
evidence supporting at least a plausible inference that the defendant had
knowledge of and access to the illegal item.” United States v. Hinojosa, 349 F.3d
200, 204 (5th Cir. 2003) (internal quotation marks omitted). Even assuming that
Galindo was a joint occupant at 1016 North Lee, the evidence presented allowed
a rational jury to find that Galindo had actual knowledge of, and access to, the
cocaine.
      First, a search of the residence revealed cocaine powder on the kitchen
table and floor. Even more significant, police found Galindo’s fingerprint on a
bag of cocaine recovered from the house. These facts could lead a rational jury
to find that Galindo knew about all of the cocaine and had access to it. See id.
      Because the evidence allowed the jury to find that Galindo resided at 1016
North Lee and that he had knowledge and access to the cocaine present there,
a rational jury could have found that Galindo constructively possessed the
cocaine. See id. These facts also permit a finding that Galindo knowingly
possessed the cocaine. Regarding the intent to distribute element, intent may be
inferred from the quantity of drugs possessed by the defendant. United States
v. Kates, 174 F.3d 580, 582 (5th Cir. 1999). It is undisputed that over one
kilogram of cocaine was seized from the 1016 North Lee residence. This quantity
is consistent with an intent to distribute. See id. at 582-83.
      Galindo attempts to analogize our decision in United States v. Rojas
Alvarez to his case. In Rojas Alvarez, we found that co-defendant Huberto
Pinon’s conviction for aiding and abetting the possession of heroin and cocaine
with the intent to distribute within 1000 feet of a school was not supported by
sufficient evidence. 451 F.3d at 333-38. The evidence proved that Pinon’s wife
was dealing heroin and cocaine, and that the Government charged Pinon with

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aiding and abetting based on the fact that police found drugs and cash in a
hidden compartment in Pinon’s trailer. Id. at 324-25. The outcome turned on
whether Pinon knew of the drugs hidden inside his trailer, because, as the court
noted, “without Pinon’s knowledge of the drugs, the Government’s entire case
against him unravels.” Id. at 337.
      The Government conceded that, because the drugs were hidden, it could
not rely merely on Pinon’s ownership and control of the trailer to establish his
knowledge. Id. at 334. The court held that the Government failed to carry its
burden to produce additional evidence of Pinon’s knowledge because nothing
proved that Pinon was aware the secret compartment existed, much less that he
knew of its contents. Id. at 334-35.
      While Galindo’s knowledge of the cocaine found at 1016 North Lee is an
important issue here, the present case is readily distinguishable from Rojas
Alvarez. First, police discovered cocaine dust on the kitchen table and floor,
allowing a rational jury to believe that a resident of that house would have been
aware of the cocaine. Of course, this is different from Rojas Alvarez, where the
only drugs in the trailer were found in a hidden compartment. See id. at 325.
Second, Galindo’s fingerprint was on a bag of cocaine. This fact also allowed a
rational jury to infer that Galindo knew about the cocaine. In contrast, no such
evidence existed in Rojas Alvarez. See id. These facts clearly distinguish this
case from Rojas Alvarez, where the Government attempted to “cobble together
inferences from the testimony” to prove the defendant knew about the drugs.2
See id. at 337.
      In sum, the evidence allowed a rational jury to find that all three elements
for possession with the intent to deliver were satisfied beyond a reasonable


      2
       The evidence of Galindo’s knowledge of the contraband also distinguishes this case
from United States v. Williams, upon which Galindo relies. See 985 F.2d 749, 756 (5th Cir.
1993).

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doubt. Galindo’s initial admission to police that 1016 North Lee was his address,
coupled with the other evidence tying him to that residence, allowed a rational
jury to conclude he resided there. Further, the fact that cocaine was discovered
in plain view in the house and Galindo’s fingerprint was found on a bag of
cocaine, could have led a rational jury to conclude that Galindo knew about the
cocaine and had access to it. A finding of these facts would allow a jury to
conclude that Galindo had knowledge and constructive possession of the cocaine.
Further, the amount of cocaine seized allows an inference of an intent to
distribute. See Kates, 174 F.3d at 582-83.
      Alternately, we agree that the evidence supports conviction under an
aiding and abetting theory. To prove aiding and abetting the Government had
to show that the underlying substantive offense occurred and that Galindo “(1)
associated with a criminal venture; (2) participated in the venture; and (3)
sought by action to make the venture successful.” United States v. Infante, 404
F.3d 376, 385 (5th Cir. 2005). The evidence showed that Galindo had knowledge
and constructive possession of the cocaine at 1016 North Lee, that he allowed
Gardea and Vargas access to the house, and that his fingerprint was recovered
from a bag of cocaine inside the house. A rational jury could conclude that this
evidence proves that Galindo associated with and participated in a criminal
venture and that took action seeking to make it successful.
                  B. Hearsay and Confrontation Clause
      Galindo argues that the district court erred by allowing Ray to testify
about statements made by Victor Alvarez during the July 27, 2006 phone
conversation. The Government contends that these statements were admissible
under Federal Rule of Evidence 801(d)(2)(E), which provides that “a statement
by a coconspirator of a party during the course and in furtherance of the
conspiracy” is not hearsay. “We review the admission of hearsay evidence under
the non-hearsay definition of Rule 801(d)(2)(E) for abuse of discretion.” United

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States v. Solis, 299 F.3d 420, 443 (5th Cir. 2002) (internal quotation marks
omitted).
      Rule 801(d)(2)(E) allows admission of Alvarez’s statements if the
Government establishes “(1) the existence of a conspiracy, (2) the statement was
made by a co-conspirator of the party, (3) the statement was made during the
course of the conspiracy, and (4) the statement was made in furtherance of the
conspiracy.” See id. Galindo claims that two of these prongs are not met.
      First, Galindo contends that the second prong is not met because the
evidence was insufficient to prove the existence of a conspiracy between Alvarez
and Galindo. Ray conceded that Alvarez did not mention Galindo by name
during the telephone conversation and that he (Ray) did not know how Alvarez
transferred the cocaine to Galindo. Further, Ray admitted that he never spoke
to Galindo personally about the July 27, 2006 drug transaction.
      However, Galindo’s claim that no evidence links him to Alvarez is
inaccurate. Ray, whose statements to police about the conspiracy’s operations
were repeatedly corroborated by subsequent events, testified that it was his
understanding that Galindo was involved in the conspiracy. He stated, “It was
my understanding that [Alvarez] would call Mr. Galindo . . . then the runner
would be sent to my house.” Ray based his understanding on the fact that he
knew that Alvarez and Galindo had done business in the past and because “we
were all selling dope, everybody kind of knows what everyone else is doing.”
Additionally, Ray testified that he dealt indirectly with Galindo on past drug
deals. Ray further testified that he had a telephone conversation with Vargas on
July 27th and Vargas told him that Galindo and Gardea were “out on a job” and
that the cocaine would be delivered “[w]hen they got back from their job.”
Further, the same day Ray ordered the cocaine from Alvarez, police observed
Vargas leave Galindo’s house to deliver the cocaine to Ray. Galindo was present
at the house that day—the same day police recovered large quantities of cocaine

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there, with at least one package bearing Galindo’s fingerprint. Taken together,
this evidence makes clear that the district did not abuse its discretion in finding,
by a preponderance of the evidence, that Galindo and Alvarez were involved in
the same conspiracy to distribute cocaine. See Solis, 299 F.3d at 443.
      Second, Galindo argues that because Ray was arrested the day before the
telephone conversation with Alvarez, that conversation did not occur during the
course of the conspiracy. We have held that “ordinarily, a person’s participation
in a conspiracy ends when the person is arrested for his role in the conspiracy.”
United States v. Arce, 997 F.2d 1123, 1128 (5th Cir. 1993) (internal quotation
marks omitted). However, as some courts have explicitly recognized, and the
language of Rule 801(d)(2)(E) makes clear, the declarant’s statement need not
be made to a coconspirator. See United States v. Edmond, 52 F.3d 1080, 1111
(D.C. Cir. 1995); see also United States v. Williamson, 53 F.3d 1500, 1519 (10th
Cir. 1995); see also FED. R. EVID. 801(d)(2)(E) (excluding from the hearsay rule
“a statement by a coconspirator of a party”). It is enough that the declarant,
Alvarez in this case, was Galindo’s co-conspirator when the statement was made.
The fact that Ray (the person to whom the statement was made) could not have
been in the conspiracy by virtue of his arrest is of no consequence. See
Williamson, 53 F.3d at 1519. Further, we are satisfied that the statement was
made during and in furtherance of the conspiracy because the statement
concerned instructions and details relating to a pending drug transaction.
      Relatedly, Galindo argues that the admission of Alvarez’s statements
violated the Confrontation Clause as interpreted by Crawford v. Washington,
541 U.S. 36 (2004). Crawford prohibits admission of “testimonial” statements
from a declarant not present at trial without a showing that the declarant is
unavailable and that the defendant had the opportunity to cross-examine him.
See id. at 68. Crawford does not bar the testimony at issue here because that
case considered “statements in furtherance of a conspiracy” to be “not

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testimonial.” Id. at 56; see United States v. Robinson, 367 F.3d 278, 292 n.20 (5th
Cir. 2004) (recognizing, in a post-Crawford case, that statements made during
the course of a conspiracy are non-testimonial in nature).
      Based on the foregoing, the district court did not abuse its discretion in
admitting Ray’s testimony. Galindo’s related arguments concerning the
admissibility of Ray’s testimony are without merit and we need not address
them here.
                     C. Minor Participant Adjustment
      Galindo argues that he was entitled to receive a two-level reduction in his
offense level under the Guidelines because he was “minor participant” in the
crime. See U.S. SENTENCING GUIDELINES MANUAL § 3B1.2(b) (2005). To qualify
for this reduction a defendant must be “substantially less culpable than the
average participant.” Id. cmt. n.3(A). Further, “[a] defendant has the burden of
showing that he is entitled to the downward adjustment.” United States v.
Garcia, 242 F.3d 593, 597 (5th Cir. 2001). The district court denied Galindo’s
request for this reduction stating that his “role was not minor but actually
coextensive with the conduct for which he was held accountable.” The court’s
decision on this issue is reviewed for clear error. Id. at 598.
      Galindo claims he is entitled to this reduction because he merely “owned
the house where the drugs were kept.” This statement is inconsistent with the
evidence. The evidence showed that, in addition to residing in the house where
the drugs were kept, Galindo’s fingerprint was found on a bag of cocaine inside
the house. This fact is enough for us to conclude that the district court did not
clearly err in refusing to grant the reduction.
                                       III.
      For the reasons stated above, we AFFIRM Galindo’s conviction and
sentence.
AFFIRMED.

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