                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                             March 18, 2005
                       FOR THE FIFTH CIRCUIT
                       _____________________             Charles R. Fulbruge III
                                                                 Clerk
                            No. 04-40377
                       _____________________

UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

                              versus

LORENZO HOWARD, also known
as Big Lo,

                                              Defendant-Appellant.
__________________________________________________________________

           Appeal from the United States District Court
                 for the Eastern District of Texas
                     USDC No. 6:03-CR-16-4-LED
_________________________________________________________________

Before REAVLEY, JOLLY, and PRADO, Circuit Judges.

PER CURIAM:*

     Lorenzo, a.k.a. “Big Lo” Howard (“Howard”) argues that his 16-

count conviction for gang-related conspiracy, racketeering, drug

and firearms offenses was not supported by sufficient evidence. He

also argues that his sentence to over 131 years’ imprisonment is so

disproportionate to the crime that it constitutes a violation of

the Eighth Amendment’s prohibition of cruel and unusual punishment,

especially considering that his co-conspirators received sentences

ranging from 10-20 years in prison pursuant to plea agreements.

Howard maintains that the district court committed various errors

     *
       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this opinion should not be published and is not precedent except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.
in   calculating       his   sentencing        range    under   the    Sentencing

Guidelines.         We find his arguments unavailing and affirm his

conviction and sentence.

      Testimony at trial demonstrated that Howard was among the

principal members of a violent street gang, the East Side Locos

(ESL), operating in Tyler, Texas.            Trial evidence also showed that

the ESL attempted to expand its influence in Tyler by killing

members   of    rival    gangs,      selling    drugs,     obtaining    firearms,

committing     burglaries,     and    generally        instilling   fear   in   the

community.

      Howard was convicted of a RICO conspiracy in violation of 18

U.S.C. § 1962(d); a drug distribution conspiracy and substantive

distribution counts in violation of 21 U.S.C. §§ 841(a)(1) and 846;

violent crimes in aid of racketeering in violation of 18 U.S.C. §

1959(a)(3); use or carrying of firearms during and in relation to

crimes of violence and drug trafficking crimes in violation of 18

U.S.C. § 924(c); possession of an illegal firearm in violation of

26   U.S.C.    §§    5841,   5861(d),   and     5871;    witness    tampering   in

violation of 18 U.S.C. § 1512(b); and being a felon in possession

of a firearm in violation of 18 U.S.C. § 922(g)(1).

      In contending that his sentence of 131 years’ imprisonment

violates the Eighth Amendment, Howard characterizes himself as one

of the least involved members of the conspiracy, who, because he

refused to accept a plea agreement, received a much longer sentence

than any of his co-conspirators, most of whom were more culpable

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than    he    for    the   offenses    committed       in     furtherance   of   the

conspiracy.         The record does not show that he was only minimally

involved in gang activity.             Furthermore, the disparity between

Howard’s sentence and those of his co-conspirators is a result of

Howard’s decision to reject the United States’ offer of a plea

agreement.      That was his decision, and is not a basis on which to

overturn a conviction or sentence as violative of the Eighth

Amendment.

       Of Howard’s total sentence, 110 years are attributable to the

five gun counts of which he was convicted.                       This portion of

Howard’s sentence is the result of mandatory minimum, consecutive

sentences established by Congress in 18 U.S.C. § 924(c).                    Pursuant

to § 924(c)(1)(A)(iii), if a firearm is discharged, the minimum

sentence       to    be    imposed    is       ten   years.       Furthermore,    §

924(c)(A)(C)(i) mandates that subsequent offenses under § 924(c)

should result in a minimum consecutive sentence of twenty-five

years.       The district court, thus, followed Congressional guidance

in sentencing Howard to ten years for Count 12 and to twenty-five

years for each of Howard’s four subsequent offenses under this

statute.

       With regard to the gun offenses, Howard argues that the

evidence was insufficient to support his conviction on Count 16,

which arose when police found three weapons in the house leased by

Howard.       Howard also contends that the Government did not prove

that he possessed the weapons in connection with a crime of

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violence or a drug trafficking crime, as required by 18 U.S.C. §

924(c).    Howard relies on the account of his brother, Rodgerick,

who testified at trial that the drugs found at the house were his

and that the weapons did not belong to Howard.      Trial testimony

also included statements by three ESL gang members who testified

that Howard and other gang members sold drugs out of that house and

that Howard possessed the guns found in the house.

     In reviewing a claim for insufficiency of evidence, we “must

view the evidence in the light most favorable to the verdict,

accepting all credibility choices and reasonable inferences made by

the jury[.]” United States v. McCord, 33 F.3d 1434, 1439 (5th Cir.

1995).    There was evidence before the jury that showed that Howard

leased the house, that Howard and other gang members used the house

for storing weapons and selling drugs, and that Howard possessed

the weapons seized at the house. Because we accord substantial

deference to the jury’s apparent acceptance of the gang members’

testimony over that of Howard’s brother, we find the evidence

supporting the conviction on this count sufficient.

     Howard further contends that the evidence supporting the other

gun counts was insufficient, largely because he was in jail at the

time the offenses were committed by ESL members.     These offenses

stemmed from three shootings that occurred in June and October 2000

and May 2001.    The record shows that Howard was in jail at those

times. Howard argues that he should not have been liable for these



                                  4
offenses    because       no   evidence      at    trial     demonstrated        that    he

participated in, encouraged, or even was aware of these offenses.

     Howard’s argument is unpersuasive.                  In a conspiracy “an overt

act of one partner may be the act of all without any new agreement

specifically       directed     to    that       act”   if     the   act    is   done    in

furtherance of that conspiracy.                  Pinkerton v. United States, 328

U.S. 640, 647 (1946).           Here, the record clearly shows that the

shootings were committed to advance the ESL’s goals of retaliating

against rival gangs and expanding its influence in Tyler. Although

Howard was in jail during the commission of these offenses, he was

indisputably a member of this gang who, the evidence at trial

showed, never attempted to withdraw from the conspiracy, even while

he was incarcerated. Moreover, his writing of a threatening letter

warning a fellow gang member not to cooperate with the police

investigation of the May 2001 shooting belies his argument that he

neither knew of nor encouraged the offense.                          Therefore, he was

appropriately      held    liable     under       Pinkerton      for    these    offenses

committed    by    the    other      gang    members      in    furtherance       of    the

conspiracy.

     We also find no error in the district court’s calculation and

application of the Sentencing Guidelines.                      Specifically, we note

that the record demonstrates that the district court properly

considered    as    relevant      conduct        the    April    1997      and   May   2001

attempted murders because the record shows that they were both


                                             5
foreseeable to Howard and were within the scope of the conspiracy

that he joined.         Trial testimony indicated that Howard was present

during the altercation that resulted in the April 1997 gunfight in

which one       ESL    member     was    killed.       Furthermore,       Howard    later

attended    a    meeting    at        which   gang    members    discussed    possible

retaliation for the killing.                  Howard wrote a threatening letter

from prison warning a fellow gang member not to cooperate in the

police    investigation          of    the    May    2001    attempted    murder.     We

therefore conclude that the district court did not err in including

these attempted murders as relevant conduct under U.S.S.G. § 1B1.3.

     We    have       reviewed    Howard’s        other     arguments    regarding   the

calculation and application of the Sentencing Guidelines and find

them unpersuasive.          In sum, we find no error in the district

court’s conviction of Howard and in its calculation and application

of the Sentencing Guidelines.                     Therefore, the conviction and

sentence imposed by the district court are

                                                                             AFFIRMED.




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