                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                      Nos. 03-4643/04-3168

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES,                                   )
                                                 )
       Plaintiff-Appellee,                       )
                                                 )
v.                                               )    ON APPEAL FROM THE UNITED
                                                 )    STATES DISTRICT COURT FOR THE
RAUL TORO and URSO J. CASTILLO-                  )    NORTHERN DISTRICT OF OHIO
MEJIA,                                           )
                                                 )
       Defendants-Appellants.                    )




       Before: COLE and SUTTON, Circuit Judges; BARZILAY, Judge.*


       SUTTON, Circuit Judge. On June 17, 2003, a federal grand jury charged Raul Toro, Urso

J. Castillo-Mejia and 17 other individuals with conspiracy to possess with the intent to distribute

more than 1,000 grams of heroin in violation of 21 U.S.C. § 841(a)(1), § 841(b)(1)(A) and § 846.

Toro pleaded guilty, and the district court sentenced him to 135 months of imprisonment. Castillo-

Mejia opted for trial, a jury convicted him and the district court sentenced him to 121 months of

imprisonment.


       Toro and Castillo-Mejia raise distinct claims on appeal. Toro argues (1) that he should be

resentenced in the aftermath of United States v. Booker, 125 S. Ct. 738 (2005), and (2) that his



       *
         The Honorable Judith M. Barzilay, Judge for the United States Court of International Trade,
sitting by designation.
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United States v. Toro

counsel provided ineffective assistance by failing to object to the disparity between his sentence and

the sentences of his co-defendants. Castillo-Mejia asks for a new trial, claiming that the district

court improperly admitted (1) the hearsay statements of co-conspirators under Rule 801(d)(2)(E) of

the Federal Rules of Evidence and (2) “other crimes” evidence in violation of Rule 404(b). With the

exception of granting Toro’s request to be resentenced in accordance with Booker, we reject the

appellants’ arguments.


                                                  I.


          On June 17, 2003, a federal grand jury in the Northern District of Ohio returned a

superseding indictment charging Toro, Castillo-Mejia and 17 other co-defendants with conspiracy

to possess with the intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1), § 841(b)(1)(A)

and § 846. The grand jury also charged Toro with two counts of violating 18 U.S.C. § 1952 for

transporting heroin (in interstate commerce) in aid of an illegal enterprise.


       Toro pleaded guilty to the conspiracy count, and the government dismissed the two remaining

counts in return. In the plea agreement, Toro stipulated that he was responsible for at least 3

kilograms but less than 10 kilograms of heroin, resulting in a base offense level of 34. JA 118.

Toro, a citizen of Colombia, also agreed not to contest his deportation after the completion of his

prison sentence, in exchange for the government’s recommendation of a two-level downward

departure under U.S.S.G. § 5K2.0.




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       Starting with a base offense level of 34, the presentence report recommended that the district

court add a two-level enhancement if it determined that Toro possessed a firearm in connection with

the offense, see U.S.S.G. § 2D1.1(b)(1), and recommended a three-level enhancement for Toro’s role

as a manager or supervisor in the offense, see U.S.S.G. § 3B1.1(b). It also recommended a three-

level reduction for Toro’s acceptance of responsibility, see U.S.S.G. § 3E1.1. A mandatory

minimum sentence of 120 months applies to Toro’s offense. See 21 U.S.C. § 841(a)(1), §

841(b)(1)(A).


       At Toro’s sentencing hearing on December 2, 2003, Toro’s counsel objected to the firearm

and role-in-the-offense enhancements. The district court agreed that the firearm enhancement did

not apply but that the three-level enhancement for Toro’s role in the offense did. The court also

found, at the urging of Toro’s counsel, that Toro’s deportation concession warranted a two-level

reduction and that Toro’s acceptance of responsibility warranted a three-level reduction. After

accounting for these adjustments, the district court calculated an offense level of 32, which when

coupled with a Criminal History Category of I created a Guideline range of 121 to 151 months of

imprisonment. The district court sentenced Toro to 135 months in prison and ordered him to

surrender to immigration authorities for deportation upon his release. From the record, it appears

that the sentences of the conspirators ranged from 32 months to 135 months, Toro being the only

defendant to receive 135 months.


       Castillo-Mejia pleaded not guilty and went to trial on the conspiracy charge on September

15, 2003. The trial proceedings included the testimony of co-defendants John Calderone, Juan

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United States v. Toro

Carlos Gonzales-Perez, Danny Hill and Bruce Wright as well as the testimony of government agents

Warner Irizarry (FBI), Lee Lucas (DEA) and Stephen Vogt (FBI). Over defense counsel’s objection,

the district court admitted several hearsay statements of Castillo-Mejia’s co-conspirators under Rule

801(d)(2)(E) of the Federal Rules of Evidence. Also, over defense counsel’s objection, the court

admitted testimony regarding Castillo-Mejia’s dealings with one of his co-defendants prior to the

beginning of the conspiracy (late fall of 2000) under Rule 404(b) of the Federal Rules of Evidence.

On September 19, 2003, a jury convicted Castillo-Mejia on the conspiracy charge and found that he

conspired to possess with the intent to distribute one kilogram or more of heroin. On December 22,

2003, the district court sentenced Castillo-Mejia to 121 months of imprisonment. Castillo-Mejia’s

offense also carries a mandatory minimum of 120 months. See 21 U.S.C. § 841(a)(1), §

841(b)(1)(A).


                                                    II.


                                                    A.


        We consider Toro’s Booker claim first. Because he did not raise a Sixth Amendment

challenge below, we may remand his sentence only if he shows plain error. See United States v.

Olano, 507 U.S. 725, 731 (1993); see also Fed. R. Crim. P. 52(b). To satisfy this standard, the

defendant must show an “(1) error, (2) that is plain, and (3) that affects substantial rights. If all three

conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but

only if (4) the error seriously affect[ed] the fairness, integrity, or public reputation of judicial


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United States v. Toro

proceedings.” Johnson v. United States, 520 U.S. 461, 466–67 (1997) (quotations and citation

omitted).


        In the aftermath of our decision in United States v. Oliver, 397 F.3d 369 (6th Cir. 2005),

there can be little doubt that Toro has met this standard. Indeed, while the government continues to

disagree with Oliver, it concedes that the decision controls this case: “Assuming Oliver remains the

law of the Circuit, the district court’s resort to judicial fact-finding to increase the defendant’s base

level, though correct at the time, now amounts to plain error[] and requires a remand to the district

court for resentencing.” Gov’t Supp. Br. at 2. Accordingly, we vacate Toro’s sentence and remand

the case to the district court for the limited purpose of resentencing him under Booker.


                                                   B.


        Toro next argues that his attorney provided ineffective assistance of counsel by failing to

object to the length of his sentence in comparison to the shorter sentences of his co-defendants. As

we have said on many occasions, however, it is not our practice to entertain claims of ineffective

assistance of counsel on direct appeal. See United States v. Bradley, 400 F.3d 459, 462 (6th Cir.

2005). While there may be “rare exceptions where ‘the record is adequate to assess the merits of the

defendant’s allegations,’” id. (quoting United States v. Wunder, 919 F.2d 34, 37 (6th Cir. 1990)), it

is “customary procedure” for a defendant to raise ineffective-assistance claims in post-conviction

proceedings under 28 U.S.C. § 2255, United States v. Hill, 30 F.3d 48, 51 (6th Cir. 1994). Because

the “evidence introduced at trial . . . will be devoted to issues of guilt or innocence, [ ] the resulting


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record [on direct appeal] in many cases will not disclose the facts necessary to decide” an ineffective-

assistance claim. Massaro v. United States, 538 U.S. 500, 505 (2003); see id. at 504 (“[A] motion

brought under § 2255 is preferable to direct appeal for deciding claims of ineffective-assistance.”)


       Toro offers no good reason for departing from this practice. To the contrary, his ineffective-

assistance claim accentuates the necessity of this custom. While he contends that his counsel should

have made an argument regarding the comparatively short sentences of his co-defendants, the record

contains no information why his co-defendants received shorter sentences. On this record, in other

words, it is quite possible that the co-defendants made different plea agreements with the

government, offered substantial assistance to the government (which Toro may not have offered),

stipulated to different facts in their plea agreements or qualified for reductions or downward

departures for which Toro was not eligible. Nor does the record explain why defense counsel raised

some objections during Toro’s sentencing—and did so successfully—and did not raise others. For

all we know, defense counsel had a sound reason for not making the argument that Toro now claims

he should have made. Under these circumstances, if Toro still wishes to bring an ineffective-

assistance claim after his resentencing, he must do so by filing a § 2255 motion.


                                                   C.


       Castillo-Mejia first argues that the district erred in admitting the hearsay statements of co-

conspirators under Rule 801(d)(2)(E) of the Federal Rules of Evidence. We review a district court’s




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factual findings under the clearly erroneous standard and its legal conclusions de novo. United

States v. Gessa, 971 F.2d 1257, 1260–61 (6th Cir. 1992).


          A district court may admit hearsay statements of co-conspirators where “the government [ ]

establish[es] by a preponderance of the evidence that (1) the conspiracy existed, (2) the defendant

was a member of the conspiracy, and (3) the co-conspirator’s statements were made in furtherance

of the conspiracy.” United States v. Emuegbunam, 268 F.3d 377, 395 (6th Cir. 2001); see Fed. R.

Evid. 801(d)(2)(E). While the district court may consider the contents of the statement in making

this inquiry, the hearsay statement by itself may not prove the existence of the conspiracy and the

defendant’s participation in it. See id.; see also Bourjaily v. United States, 483 U.S. 171, 180–81

(1987).


          We disagree with Castillo-Mejia’s contention that the government did not meet its burden

in seeking the admission of this evidence. The co-conspirators offered direct testimony about

Castillo-Mejia’s acts and the acts of the other conspirators that were done to further the conspiracy.

Gonzales-Perez testified that Castillo-Mejia was an “associate” of Luis Ortiz, who (he also testified)

was in the business of selling heroin. Gonzales-Perez described two meetings in which Castillo-

Mejia was present with other members of the conspiracy, one of which ended in Castillo-Mejia

giving his car to Ortiz in payment for a heroin debt.


          Calderone testified that he traveled to Cleveland from Queens, New York in November of

2000 at Castillo-Mejia’s request and delivered 800 grams of heroin to him. Calderone testified that


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United States v. Toro

Castillo-Mejia paid him $2,400 for making the delivery and paid for his taxi once he arrived in the

Cleveland area. He also testified that Castillo-Mejia introduced him to a man named Balager, the

source of the heroin in New York. Calderone testified that after he delivered the heroin to Castillo-

Mejia, he saw Castillo-Mejia give some of it to an African-American male and that he traveled with

Castillo-Mejia to meet with Bruce Wright and a man named Vince, both of whom are named in the

conspiracy and both of whom Castillo-Mejia described to Calderone as his heroin “clients.” JA

354–56. Calderone testified that he made a second trip to deliver heroin from Balager in New York

to Castillo-Mejia in Ohio. This time, he testified, he transported 600 grams of heroin and Castillo-

Mejia paid him $1,800. Calderone testified that during this trip he stayed at Castillo-Mejia’s

apartment for several days and met with several individuals named in the conspiracy.


       Wright testified that in 1995 he “ran into an individual by the name of Manny” who was in

the cocaine and heroin business. He testified that, through Manny, he became involved in the

purchase and distribution of heroin and shortly thereafter met Manny’s partner, Castillo-Mejia.

Wright testified that Manny was arrested at some point in 1995 and that Castillo-Mejia took over the

business, eventually making Ortiz and Calderone his partners. Wright testified that he and Castillo-

Mejia would meet at a Corvette shop and that Castillo-Mejia would give him anywhere from 100

to 200 grams of heroin, which he would distribute to his “customers,” many of whom were also

named in the conspiracy. JA 437. Wright also testified that Castillo-Mejia used his nephew Phil

Wright numerous times to pick up heroin from New York and deliver it to him in Ohio. And,

finally, Wright testified that he was involved in three other heroin transactions with Castillo-Mejia:


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United States v. Toro

in August 2002, he obtained 56 grams from him; in December 2002, he obtained 100 grams from

him; and in January 2003, he obtained an unspecified amount from him.


       Leaving aside the hearsay statements themselves, the testimony showed the following: (1)

a witness who claims that Castillo-Mejia paid him to transport heroin from New York and deliver

it to him in Cleveland on at least two occasions; (2) a witness who testified that Castillo-Mejia

supplied him with heroin continually for several years ending in late 2000 and three additional times

in 2002 and 2003; and (3) three witnesses who place him at meetings with, or having a connection

to, other members of the conspiracy. Nor did the district court, who had a ring-side view of these

proceedings, commit clear error in crediting the consistent testimony of these witnesses.        See

Emuegbunam, 268 F.3d at 395. On this record, there can be little doubt that a preponderance of the

evidence showed that a conspiracy existed and that Castillo-Mejia was a member of it. The out-of-

court statements of Castillo-Mejia’s co-conspirators were properly admitted.


                                                 D.


       Castillo-Mejia next argues that the district court erred in admitting Wright’s testimony about

his heroin dealings with Castillo-Mejia prior to the dates charged in the conspiracy. He argues that

the evidence violates Rule 404(b) of the Federal Rules of Evidence because it consists of “other

crimes, wrongs, or acts” that were separate from the charged conduct. Fed. R. Evid. 404(b). The

district court admitted this testimony as “background evidence” and, in the alternative, considered

it properly admissible under Rule 404(b). JA 430.


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       “Background evidence” is admissible when it constitutes “a prelude to the charged offense,

is directly probative of the charged offense, arises from the same events as the charged offense,

forms an integral part of a witness’s testimony, or completes the story of the charged offense.”

United States v. Hardy, 228 F.3d 745, 748 (6th Cir. 2000). Proper background evidence consists of

“acts that are inextricably intertwined with the charged offense,” and its introduction “does not

implicate Rule 404(b).” Id. In our view, Wright’s testimony about his dealings with Castillo-Mejia

prior to the fall of 2000 were properly admitted as background evidence. Wright testified that he

began receiving heroin from Castillo-Mejia shortly after they met in 1995 and that the relationship

continued into the early months of the conspiracy. He also testified that, after a year or so, Castillo-

Mejia resurfaced as one of his suppliers and that he engaged in three heroin transactions with

Castillo-Mejia in 2002 and 2003. The limited testimony regarding transactions between Wright and

Castillo-Mejia prior to the beginning of the conspiracy was necessary to show how Wright came to

be acquainted with Castillo-Mejia and how their heroin-dealing relationship began. The testimony

served as a “prelude to the charged offense” and is “inextricably intertwined with the charged

offense.” Id.


       In response, Castillo-Mejia claims that Wright’s testimony regarding events prior to the fall

of 2000 involved “circumstances [that] were completely different” from the charged offense.

Castillo-Mejia Br. at 19. Yet Castillo-Mejia presents no support for that conclusory statement, the

testimony presented did provide a background to the relationship between the parties and nothing

in the record otherwise supports Castillo-Mejia’s contrary argument. As this testimony was properly


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admitted as background evidence, we need not consider its admissibility under Rule 404(b).

Castillo-Mejia’s conviction is affirmed.


                                               III.


       For these reasons, we affirm the judgment of the district court in all respects save one:

Toro’s sentence is vacated, and we remand his case to the district court for the limited purpose of

resentencing him under Booker.




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