                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 January 5, 2007

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-30324



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

     versus

EDUARDO TORRES,

                                    Defendant-Appellant.

.................................................................



                            No. 05-30326



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

     versus

LESLIE “BEAU” KIMES,

                                    Defendant-Appellant.



          Appeal from the United States District Court
              for the Western District of Louisiana



Before GARWOOD, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
     Defendants Eduardo “Eddie” Torres (Torres) and Leslie “Beau”

Kimes (Kimes) were each found guilty of conspiracy to possess

with intent to distribute fifty grams or more of methamphetamine

and 500 grams or more of a mixture or substance containing a

detectable amount of methamphetamine in violation of 21 U.S.C.

§§ 841(a)(1) and 846.   Kimes was also found guilty of two

additional charges: attempt to possess with intent to distribute

five grams or more of methamphetamine in violation of 21 U.S.C.

§ 841(a)(1) and 18 U.S.C. § 2; and possession with intent to

distribute methamphetamine in violation of 21 U.S.C § 841(a)(1)

and 18 U.S.C. § 2.   Torres was subsequently sentenced to 168

months of imprisonment and Kimes was sentenced to ninety-seven

months of imprisonment.   Torres does not challenge his conviction

but does challenge his sentence, arguing that he was incorrectly

held responsible for twelve pounds of methamphetamine based on

the unreliable and uncorroborated testimony of a co-conspirator.

Kimes challenges the sufficiency of evidence supporting his

convictions.   Finding no reversible error, we affirm as to both

Kimes and Torres.



                 BACKGROUND FACTS AND PROCEEDINGS

     In July 2003, John Auger, II (Auger) began cooperating with

FBI special agent Greg Adams (Adams) and the FBI Metro Safe



under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

                                 2
Streets Task Force (FBI), which was investigating a

methamphetamine ring in Union Parish and northeast Louisiana.    As

part of his cooperation, Auger made consensually monitored

telephone calls to and provided information regarding the other

members of the methamphetamine distribution conspiracy.    During

this time, Auger also arranged for his supplier, Torres, to

continue to sell him methamphetamine and ship it to him in

Louisiana.   Initially, Matt Zancanilla, Quinn Campbell, and Wes

Goodrich—each of whom obtained their methamphetamine from

Torres—supplied Auger with methamphetamine, but in late 2002 they

put Auger directly in touch with Torres.   At all times, Torres,

who resided in Madera, California, was the ultimate supplier of

the methamphetamine Auger distributed.   Auger testified that each

purchase from Torres was in a one-pound amount and cost $6,500 a

pound.

     Upon receipt of his order from Torres, Auger would then

front portions of those one-pound shipments among the

co-conspirators Jason Murray, Neal Pace, and Kimes.    Murray would

then send to Torres via FedEx the money owed to him.    During this

period of cooperation, Auger double-crossed the FBI twice by

having Torres ship drugs to him surreptitiously at different

addresses—successfully in July 2003 and unsuccessfully on August

15, 2003 when the FBI intercepted the package.   Each package

contained the usual one-pound amount of methamphetamine.    Auger



                                 3
was arrested when his betrayal was discovered but continued to

cooperate with investigators with the incentive of potential

leniency at sentencing.

     In the course of the taped phone calls, the conspirators

informed Auger of the amounts of drugs they wanted to purchase

from him and arranged a meeting place and time.   All except

Torres were arrested when they arrived at their scheduled August

15, 2003 meeting.   Law enforcement agents arrested Torres when

they searched his home in August 2003 and found 434.55 grams of

methamphetamine, FedEx labels, an envelope, a scale, and a

firearm.   Torres “admitted [to agents] he ‘messed up’ and

distributed methamphetamine.”   On September 10, 2003, a federal

grand jury indicted Kimes,1 Torres,2 and three other named

     1
      Kimes was ultimately found guilty of Counts One, Five, and
Seven in the indictment, which he now appeals:
     “COUNT 1 (CONSPIRACY)
           Beginning in the summer of 2001 and continuing
     through August 21, 2003, the exact dates being
     uncertain, in the Western District of Louisiana, and
     elsewhere, the defendants, [Torres, Kimes, and others]
     did knowingly and intentionally conspire and agree
     together to possess with intent to distribute 50 grams
     or more of methamphetamine and 500 grams or more of a
     mixture or substance containing a detectable amount of
     methamphetamine, a Schedule II controlled substance,
     all in violation of Title 21, United States Code,
     Sections 841(a)(1) and 846. . . .

     COUNT 5 (ATTEMPT TO POSSESS WITH INTENT TO DISTRIBUTE)
          On or about August 16, 2003, in the Western
     District of Louisiana, the defendant, BEAU KIMES,
     knowingly attempted to possess with intent to
     distribute 5 grams or more of methamphetamine and 50
     grams or more of a mixture and substance containing a
     detectable amount of methamphetamine, a Schedule II

                                 4
defendants.

     The first trial resulted in a mistrial and the second trial

ended on June 14, 2004.   The jury in the second trial found

Torres guilty of conspiracy to distribute fifty grams or more of

methamphetamine and 500 grams or more of a mixture containing

methamphetamine, but found him not guilty of possession of a

firearm in furtherance of a drug trafficking crime.   Kimes was

found guilty of all three counts with which he was charged and




     controlled substance, all in violation of Title 21,
     United States Code, Section 841(a)(1) and Title 18,
     United States Code, Section 2. . . .

     COUNT 7 (POSSESSION WITH INTENT TO DISTRIBUTE)
          On or about August 16, 2003, in the Western
     District of Louisiana, the defendant, BEAU KIMES,
     knowingly possessed with intent to distribute
     methamphetamine, a Schedule II controlled substance,
     all in violation of Title 21, United States Code,
     Section 841(a)(1) and Title 18, United States Code,
     Section 2.” Kimes Rec. Excerpts, Tab 2.

     2
      Torres was ultimately found guilty of Count One in his
superseding indictment:
     “COUNT 1 (CONSPIRACY)
          Beginning in the summer of 2001 and continuing
     through August 21, 2003, the exact dates being
     uncertain, in the Western District of Louisiana, and
     elsewhere, the defendant, EDUARDO TORRES, and other
     persons both known and unknown to the grand jury, did
     knowingly and intentionally conspire and agree together
     to possess with intent to distribute 50 grams or more
     of methamphetamine or 500 grams or more of a mixture or
     substance containing a detectable amount of
     methamphetamine, a Schedule II controlled substance,
     all in violation of Title 21, United States Code,
     Sections 841(a)(1) and 846.” Torres Rec. Excerpts, Tab
     3.

                                 5
received a sentence of ninety-seven months’ imprisonment on each

of his three convictions at his March 8, 2005 sentencing hearing.

     At Torres’s sentencing hearing on March 7, 2005, the

district judge heard the testimony of defense witness Rogerio

Garza (Garza) in addition to argument from defense counsel and

from the government.   Garza testified as to conversations he had

with Auger while the two were cellmates for two months at the

Union Parish Detention Center from April to June of 2004.      Garza

testified that Auger confessed to him that Wes Goodrich was his

source of methamphetamine and he only received the single

intercepted package from Torres.       According to Garza, Auger said

“he was going to ‘blame the guys that they already had’ and he

was ‘going to lie’ because ‘all he wanted was to just go home.’”

The district court determined that there was sufficient

creditable evidence to support the conclusion that over the

course of the conspiracy Torres shipped at least twelve pounds of

methamphetamine to Auger to distribute in Louisiana and that

Garza’s testimony did not persuade him otherwise.3      Therefore,

     3
      The court stated in part in this connection:
     “. . . Defendant suggests through Garza that Auger had
     a motive to attribute his purchases of methamphetamine
     to the defendant rather than to his friend, Wes
     Goodrich.
           However, by attributing these amounts to the
     defendant, Auger, Auger implicated himself in the
     relevant conduct and increased his own potential
     sentence as a result. If, as he allegedly told Garza,
     he was willing to lie in order to avoid a prison
     sentence, he certainly had no motive to attribute
     amounts of methamphetamine to defendant that would only

                                   6
the resulting guidelines sentencing range was 168 to 210 months,

and the district court sentenced Torres to 168 months.

     Kimes appeals his convictions on counts 1 (conspiracy) and 7

(possession with intent to distribute), but not his conviction on

count 5 (attempted possession with intent to distribute).   Torres

appeals his sentence.

                            DISCUSSION

I. Sufficiency of the Evidence to Support Kimes’ Convictions

     Kimes challenges the sufficiency of the evidence to support

two of his convictions.   We review the evidence presented and all

reasonable inferences therefrom in the light most favorable to

the prosecution to determine whether a rational jury could have

found the essential elements of the offenses beyond a reasonable

doubt.   Jackson v. Virginia, 99 S.Ct. 2781 (1979); United States

v. Brugman, 364 F.3d 613, 615 (5th Cir. 2004); United States v.


     serve to increase his own prison sentence.
          Further, the Court had the opportunity to hear
     Auger’s testimony at trial as well as that of co-
     defendant Murray. Nothing contained in the presentence
     report and presented as evidence at trial was
     contradicted by the testimony of Garza. While he
     suggested Auger might have purchased more
     methamphetamine from Wes Goodrich than he did from
     defendant, defendant was not shown – has not shown a
     sufficient basis to find the witness’s testimony
     unreliable, untrue, or inaccurate as to the amounts
     that were attributed to the defendant.
          After considering the evidence presented at trial,
     the testimony of Rogerio Garza and the argument of
     counsel, the Court concludes that the defendant is
     appropriately attributed with 12 pounds of
     methamphetamine.”

                                 7
Garcia, 86 F.3d 394, 398 (5th Cir. 1996).      The jury is free to

choose among reasonable interpretations of evidence, and the

evidence need not exclude all possibility of innocence.      United

States v. Perrien, 274 F.3d 936, 939–40 (5th Cir. 2001).      We

accept all reasonable inferences and credibility determinations

that support the jury’s verdict.       United States v. Gonzales, 866

F.2d 781, 783 (5th Cir. 1989).   The jury’s credibility choices

are not to be disturbed absent a showing that the testimony

relates to facts the witness could not have observed or to events

which could not have possibly occurred. United States v. Bermea,

30 F.3d 1539, 1552 (5th Cir. 1994).

A. Count One: Conspiracy

     To convict Kimes of conspiracy to distribute

methamphetamine, the government must prove that Kimes: (1) had an

agreement with at least one other person to violate the narcotics

laws; (2) knew of the existence of the conspiracy and intended to

join it; and (3) voluntarily participated in the conspiracy.

United States v. Rena, 981 F.2d 765, 771 (5th Cir. 1993); 21

U.S.C. §§ 841(a)(1)4 and 846.5   The government may prove the


     4
      21 U.S.C. § 841(a) (2002) provides:
     “(a) Unlawful acts
     Except as authorized by this subchapter, it shall be
     unlawful for any person knowingly or intentionally--
     (1) to manufacture, distribute, or dispense, or possess
     with intent to manufacture, distribute, or dispense, a
     controlled substance; or
     (2) to create, distribute, or dispense, or possess with
     intent to distribute or dispense, a counterfeit

                                   8
existence of the conspiracy by circumstantial evidence alone.

United States v. Paul, 142 F.3d 836, 840 (5th Cir. 1998).   And,

we have upheld a conspiracy conviction that was based on the

uncorroborated testimony of a co-conspirator cooperating with the

government in exchange for leniency.    United States v. Medina,

161 F.3d 867, 872-73 (5th Cir. 1998).   “An express agreement is

not required; a tacit, mutual agreement with common purpose,

design, and understanding will suffice.” United States v.

Infante, 404 F.3d 376, 385 (5th Cir. 2005).

     Kimes argues that the government failed to produce

sufficient evidence showing he was involved in a conspiracy to

distribute methamphetamine.   Kimes contends that the evidence

merely indicates he was a buyer in several, unrelated

transactions and lacked any intent to distribute methamphetamine.

Indeed, evidence of no more than only a buyer–seller relationship

does not of itself provide sufficient support for a conspiracy

conviction. United States v. Casel, 995 F.2d 1299, 1306 (5th

Cir.1993).   However, evidence indicating both parties to the sale

knew that the drugs were meant for resale may suffice to


     substance.”
     5
      21 U.S.C. § 846 provides:
     “Any person who attempts or conspires to commit any
     offense defined in this subchapter shall be subject to
     the same penalties as those prescribed for the offense,
     the commission of which was the object of the attempt
     or conspiracy.”


                                 9
establish a distribution conspiracy between the parties. Id.

     Viewed in the light most favorable to the verdict, the

evidence presented at the trial supports a finding that Kimes

knowingly entered into an agreement with Auger to take possession

of a large amount of methamphetamine with the intent to

distribute it.   First, at the time of his arrest, Kimes was in

possession of drug paraphernalia indicative of intended

distribution including baggies and a sizeable amount of

methamphetamine as well as a police scanner.   Second, the

government put in evidence at trial taped conversations between

Auger and Kimes that contained references to Kimes’ plans to

distribute the drugs.   Agent Adams testified that in one of the

taped conversation between Auger and Kimes, Kimes had said that

an individual was present and wanting to buy a half gram of

methamphetamine.   Moreover, the agreed upon amount of

methamphetamine Kimes had negotiated to buy from Auger at the

August 2003 meeting was one-half pound, which Adams testified is

not commonly associated with personal use but with distribution.

     As further evidence of a conspiratorial relationship, Auger

fronted drugs to Kimes, “which indicates an ongoing relationship

of mutual trust and cooperation between these individuals rather

than a one-time buyer–seller transaction.” United States v.

Santos, No. 05-20177, 2006 WL 3028096, at *4 (5th Cir. Oct. 25,

2006) (citing United States v. Posada-Rios, 158 F.3d 832, 860



                                10
(5th Cir. 1998) (reasoning that drugs purchased on consignment

serves as strong evidence of membership in a conspiracy because

it demonstrates a strong level of trust and a mutually dependent

relationship)).   Auger testified that he normally fronted four or

six ounces at a time to Kimes, identified the individuals to whom

Kimes was selling methamphetamine, and testified he had no doubt

Kimes was distributing.   Finally, the large amounts of

methamphetamine involved (at least twelve pounds) could, under

these circumstances, indicate that all parties involved knew that

the methamphetamine was intended for distribution.

     We hold the evidence is sufficient to support the jury’s

verdict on the conspiracy count.

B. Count Seven: Possession with Intent to Distribute

     Kimes concedes that he possessed 3.69 grams of

methamphetamine at the time of his arrest but argues that the

evidence is insufficient to support the jury’s verdict finding

the required element of intent to distribute.   Kimes argues that

even if the evidence is sufficient to show he intended to

distribute the larger amounts for which he was found guilty in

the conspiracy charge, the evidence is insufficient to show he

intended to distribute the smaller amount he possessed at the

time of his arrest.   Rather, he asserts the evidence could only

show he intended it for personal use.

     To convict Kimes of methamphetamine possession with intent



                                11
to distribute, the government must prove that Kimes knowingly

possessed the drug and intended to distribute it.   Infante, 404

F.3d at 385; 21 U.S.C. § 841(a)(1).   An aider and abettor is

punishable as a principal. 18 U.S.C. § 2.   Distribution intent

may be inferred from an amount of drugs present inconsistent with

personal use or the presence of paraphernalia indicative of

distribution.   See United States v. Lucien, 61 F.3d 366 at 376

(5th Cir. 1995) (small amount of drugs with large amount of cash,

three weapons, and plastic bag with several foil packets held to

be sufficient evidence to establish intent to distribute); United

States v. Munoz, 957 F.2d 171, 174 (5th Cir. 1992) (holding that

small quantity of cocaine was sufficient to infer distribution

intent when augmented by evidence of distribution paraphernalia

or large quantities of cash); United States v. Pigrum, 922 F.2d

249, 251 (5th Cir. 1991) (two scales, coffee cup containing test

tube, and cutting agent held to be sufficient).

     At the time of his arrest, Kimes was in possession of

methamphetamine, a pipe, a police scanner, and numerous baggies

of the type used to package drugs of this nature for

distribution.   To support his argument that the drugs were

indisputably for his personal use and that an intent to

distribute cannot be inferred, Kimes relies primarily on two

cases where the small amount of drugs found on the defendant at

the time of arrest was legally insufficient to support an



                                12
inference of intent to distribute. United States v. Hunt, 129

F.3d 739, 742, 744 (5th Cir. 1997) (razor blade, small amount of

crack, blunts, and gun insufficient to establish distribution

intent); United States v. Skipper, 74 F.3d 608, 611 (5th Cir.

1996) (presence of razor and noted absence of smoking

paraphernalia found to be insufficient and observing,

“Paraphernalia that could be consistent with personal use does

not provide a sound basis for inferring intent to distribute.”).

Kimes claims that the additional paraphernalia found in his

possession with the amount of methamphetamine were consistent

with personal use rather than distribution and, therefore, do not

support such an inference.   Additionally, Kimes points to Auger’s

testimony at his sentencing hearing where Auger testified that he

had used drugs with Kimes every time they met and agreed that

Kimes had a drug problem.    Auger also admitted in that sentencing

testimony that he and Kimes had consumed up to a half ounce

(fourteen grams) of methamphetamine in a single day.

     Kimes has not succeeded in overcoming his heavy burden.

First, we cannot consider evidence presented at the sentencing

hearing in evaluating the sufficiency of the evidence presented

at trial to sustain a conviction.     Also, the fact that Kimes was

also a user of the drug does not exclude the possibility that the

jury may have found he distributed as well.    Further, this case

is distinguishable from both Hunt and Skipper due to the presence



                                 13
of the distribution-related paraphernalia in addition to the

drugs he possessed at the time of his arrest.   In both Hunt and

Skipper, each jury was essentially able to consider only the

presence of a razor with a relatively small amount of drugs,

which was held not to be a sufficient basis for inferring an

intent to distribute.   See Hunt, 129 F.3d at 741–43; Skipper, 74

F.3d at 610–11.   Here, in contrast, the jury was also able to

consider Auger’s testimony in which he named individuals to whom

Kimes distributed regularly; Auger’s testimony describing the

sizeable amounts of methamphetamine Kimes purchased from him;

Adams’s testimony that these amounts are consistent with

distribution and not just personal use; and Kimes’s possession at

time of arrest of distribution paraphernalia including a police

scanner tuned to the local police channel and numerous baggies.

Also, Kimes was arrested en route to a meeting where he intended

to acquire from Auger up to a half-pound of additional

methamphetamine to add to the amount he already possessed.6

     Viewing the evidence in the light most favorable to the

government, we find that a reasonable trier of fact could

conclude that Kimes intended to distribute the methamphetamine he

possessed at the time of his arrest despite its limited quantity.

The evidence as presented at trial is sufficient to sustain


     6
     This was the basis for Kimes’s conviction on the charge of
attempted possession with intent to distribute, which he does not
appeal.

                                14
Kimes’s conviction of possession of methamphetamine with intent

to distribute.

II. Determination of Drug Amount for Torres’s Sentencing

     We review de novo the sentence imposed by the district

courts under advisement from the United States Sentencing

Guidelines (U.S.S.G.), applying a clear error standard of review

to claims of erroneous fact-finding regarding the application of

adjustments under the guidelines. United States v. Villanueva,

408 F.3d 193, 202–03 (5th Cir. 2005); United States v. Booker,

125 S.Ct. 738 (2005).   A factual finding is not clearly erroneous

if it is plausible after reviewing the record as a whole. United

States v. Thomas, 12 F.3d 1350, 1368 (5th Cir. 1994).

Furthermore, to preclude the district court’s reliance on

information in the PSR that does not facially appear unreliable,

the defendant’s rebuttal evidence against a PSR’s information

must normally show that it is materially untrue, inaccurate, or

unreliable.   United States v. Taylor, 227 F.3d 771, 724 (5th Cir.

2001).   U.S.S.G. § 6A1.3(a) provides:

     “When any factor important to the sentencing
     determination is reasonably in dispute, the parties
     shall be given an adequate opportunity to present
     information to the court regarding that factor. In
     resolving any dispute concerning a factor important to
     the sentencing determination, the court may consider
     relevant information without regard to its
     admissibility under the rules of evidence applicable at
     trial, provided that the information has sufficient
     indicia of reliability to support its probable
     accuracy.”


                                15
     Torres’s PSR concluded that Torres was responsible for at

least twelve pounds, or 5.448 kilograms, of methamphetamine based

on Auger’s statements that he obtained approximately that amount

from Torres between May 2002 and August 2003.   The resulting base

offense level was thirty-six, which was then reduced by two

points for acceptance of responsibility.   Torres argues that he

should not be held responsible for twelve pounds of drugs because

Auger was patently unreliable and any corroboration of Auger’s

testimony yielded only four to five pounds of methamphetamine

attributable to Torres, thereby resulting in a base offense level

of thirty-four and total offense level of thirty-two.7    Torres

claims he presented sufficient rebuttal evidence that any

uncorroborated information from Auger is unreliable, and

therefore such testimony should not be considered by the district

court because there is insufficient indicia of reliability: (1)

it is not disputed that Auger double-crossed the FBI, and

therefore lies, and (2) Auger’s former cell-mate, Garza,

testified as to the unreliability of Auger’s testimony.

     We are not persuaded.   There is nothing in the record to

show that the district court was clearly erroneous in finding

that Garza’s testimony did not demonstrate that less than twelve



     7
      Torres refers us to the trial testimony of a co-
conspirator, Murray, where he testifies he sent a total of
$13,000 to Torres for Auger, which supports a finding of two
pounds at the established $6,500/pound price, and received three
one-pound shipments of methamphetamine from Torres.

                                16
pounds were involved and that Auger’s testimony was sufficiently

reliable.   Also, while Torres objected to certain paragraphs of

his PSR, he did not present any evidence to challenge the

assertion that he was the ultimate supplier of Auger’s previous

suppliers, Goodrich and Zancanilla—which further supports the

findings of the methamphetamine amounts in the PSR.   Indeed,

Torres’s PSR details specific deliveries of methamphetamine in

one-pound quantities between late 2002 and August 2003.   Torres’s

sole argument is that Auger’s testimony is incredible.    However,

the district judge was able to evaluate the credibility of the

various witnesses, including Auger, continuously during the two

trials and the sentencing hearing, and found that Torres did not

uphold his burden to demonstrate that the PSR information was

materially untrue, inaccurate, or unreliable.   See note 3 supra.

     There is nothing in the record that warrants vacating

Torres’s sentence in the face of the clear error standard, and we

do not find that the district judge clearly erred in determining

Auger’s testimony to be sufficiently credible to support the

PSR’s assertions.   See, e.g., 18 U.S.C.§ 3742(3) (2003) (“The

court of appeals shall give due regard to the opportunity of the

district court to judge the credibility of the witnesses, and . .

. shall give due deference to the district court’s application of

the guidelines to the facts.”); United States v. Ocana, 204 F.3d

585, 593 (5th Cir. 2000) (“[Co-conspirators’] inconsistent



                                17
testimony alone . . . is not enough to demonstrate that this

testimony upon which the district court relied is materially

untrue.   The inconsistent pattern of their testimony in and of

itself does not command that we ignore the district court’s

appreciation of their testimony as reliable.”); Posada–Rios, 158

F.3d at 861.   Torres’s sentence is affirmed.

                            CONCLUSION

     For the foregoing reasons, we AFFIRM the convictions and

sentences of Torres and Kimes.

                             AFFIRMED.




                                 18
