     Case: 09-11190     Document: 00511255115          Page: 1    Date Filed: 10/06/2010




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

                                                  FILED
                                                                           October 6, 2010

                                       No. 09-11190                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff - Appellee
v.

JESUS FRANCISCO CHAVEZ-SALGADO; REYMUNDO RENDON-
ALVARADO; JOSE SANCHEZ,

                                                   Defendants - Appellants




                    Appeal from the United States District Court
                         for the Northern District of Texas
                              Case No. 4:09-CR-079-1


Before HIGGINBOTHAM, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM.*
        Defendant-Appellants Jesus Chavez-Salgado (Chavez), Reymundo Rendon-
Alvarado (Rendon), and Jose Sanchez (Sanchez) were convicted by a jury of
conspiring to possess with intent to distribute more than five kilograms of
cocaine in violation of 21 U.S.C. § 846 and were sentenced to 121 months, 188
months, and 135 months of imprisonment, respectively. Appellants assert
several errors by the district court, all contending that the government failed to


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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present sufficient evidence to prove the drug quantity alleged by the
government.1
       Appellants also argue that the district court clearly erred in determining,
for sentencing purposes, that appellants’ offense involved more than five
kilograms of cocaine. Rendon argues that the district court erred in increasing
the base level of his offense by two levels pursuant to § 3B1.1(c) based on his role
in the offense. Finally, Chavez argues that the district court erred by refusing
to give his requested jury instruction that would have required the government
to prove Chavez knew he conspired to possess more than five kilograms of
cocaine with intent to distribute. We disagree and affirm.
                                   I. BACKGROUND
       After receiving citizen complaints that the owner and employee of a tire
business in Fort Worth were engaged in drug activity, the Fort Worth Police
Department conducted an investigation where two undercover officers, Officer
Eric Martinez and Officer Jesus Cisneros, posed as high-level narcotics
traffickers. On April 21, 2009, Officers Martinez and Cisneros arrived at the tire
business carrying a “concealment mold,” used by drug traffickers to hide
contraband. Upon arrival, the officers encountered Chavez and asked for the
owner of the property. Chavez informed the officers that the owner was not
present, and inquired as to why the officers were looking for him. Officer
Martinez told Chavez that he had ten kilograms of cocaine to ship to Kentucky
and that he needed help concealing drugs in a tire. Officer Martinez also showed
him the concealment mold. Chavez informed Officer Martinez that he had
buyers in Fort Worth and Dallas who would be willing to buy the same amount,


       1
          Specifically, Appellants each argue the district court erred in denying their motions
for judgments of acquittal, made both at the close of the government’s case-in-chief and at the
close of all evidence. Sanchez argues the district court erred in denying his post-verdict joint
motion for acquittal and for new trial. Chavez argues the district court erred in submitting to
the jury the question of whether the conspiracy involved more than five kilograms of cocaine.

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ten kilograms, and inquired as to the quality and the price of the cocaine
Martinez was selling. Officer Martinez and Chavez exchanged telephone
numbers and the officers left the tire business.
      Subsequent to the initial meeting, Chavez phoned Officer Martinez to
inquire whether Martinez had received more cocaine or expected to receive more.
The two exchanged several phone calls over the next several days. A few days
later, Officers Martinez and Cisneros met with Chavez, who told Officer
Martinez he had a buyer for ten kilograms of cocaine and asked to check the
quality of the cocaine. After traveling to a warehouse, Officer Martinez offered
two cellophane-wrapped kilograms of cocaine to Chavez for inspection. Chavez
asked Officer Martinez to cut open the package, which he did, and Chavez
smelled the cocaine. Officer Martinez told Chavez the remaining eight kilograms
of cocaine were still inside the vehicle, and that they would not be removed until
the officers were sure that Chavez’s group had the money to pay for the drugs.
Chavez assured the officer that his group in Dallas had sufficient money and the
men parted ways.
      A few days later, Chavez called Officer Martinez to tell him the Dallas
group did not have sufficient money to complete the transaction. Later, Chavez
called Officer Martinez and said he had a different buyer out of Dallas who also
wanted ten kilograms, but only had enough cash for five kilograms. Chavez
asked Officer Martinez if he would be willing to trade vehicles for the other five
kilograms. Officers Martinez and Cisneros and Chavez met at Chavez’s home to
view the vehicles. When the officers arrived, however, there was only one vehicle
at the home. Sanchez was also present and was introduced to the officers as
“Chino.” Sanchez told Officer Martinez he was working for a man in Dallas who
wanted ten kilograms of cocaine. Chavez also told the officers that Sanchez was
there to represent the owner of the vehicles from Dallas. Sanchez also told the
officers that the group had money for five kilograms, and were willing to trade

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vehicles for the other five kilograms. Sanchez also asked about the quality of the
cocaine and asked to take one kilogram for testing, but the officers refused and
ended the meeting.
      As the officers drove back to their office, Chavez called Officer Martinez
and asked him to continue negotiations. Officer Martinez agreed, and the officers
again met with Chavez and Sanchez. Chavez and Sanchez were persistent in
their request to take one kilogram of cocaine for testing, and Sanchez said he
would return and purchase the other nine kilograms if the cocaine was of an
acceptable quality. Officer Martinez refused and the negotiations ended.
      Five days later, Chavez called Officer Martinez and said he had cash
sufficient to buy five kilograms of cocaine and vehicles in his possession. Officers
Martinez and Cisneros and two other undercover officers drove to Chavez’s
house. Sanchez was there, and handed over titles to three vehicles parked at the
residence. Sanchez told Officer Martinez that his boss was parked at a nearby
park, and asked for a sample kilogram of cocaine to take to the boss. Officer
Martinez again refused to release any cocaine until seeing the money. After an
argument with Officer Martinez, Sanchez used the phone, and then agreed to
take Martinez to see the money. Officer Martinez, Officer Cisneros, and Sanchez
then drove to the park. The parties were alarmed by a suspicious truck in the
parking lot.2 A few minutes later, a different truck pulled next to the trio,
carrying Rendon as a passenger.3 After all the parties exited the vehicles, Officer
Martinez again asked to see the money. Rendon agreed to show Officer Martinez
the money, and motioned to the driver of the truck to open its hood. Rendon
pointed to a bag lodged between the truck battery and the frame of the truck,



      2
        In actuality, the suspicious truck was a Bureau of Alcohol, Tobacco, and Firearms
(ATF) rescue team.
      3
          The driver of the truck, Mario Barrera-Luna, was found not guilty at trial.

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and Officer Martinez was able to see United States currency in the bag.4 At some
point during the meeting at the park, Officer Martinez told Rendon that “[w]hat
made you look bad is working with [Chavez].” Rendon replied, “I don’t know
[Chavez] or what happened.” The driver of the truck then said, in Spanish, “it’s
hot here,” which Officers Martinez and Cisneros took to mean that he thought
it was too dangerous to continue the transaction at the park. The parties agreed
to complete the transaction at Chavez’s house. Upon their return to Chavez’s
house, Officer Martinez and Rendon exited the vehicle and began talking in front
of the residence. Prior to exiting, Officer Martinez gave the prearranged arrest
signal and arrest teams from the ATF and the Fort Worth Police Department
took the men into custody.
       Chavez, Rendon, and Sanchez were each indicted on a single count of
conspiracy to possess with intent to distribute more than five kilograms of
cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A). At trial, the
government called only two witnesses, Officers Martinez and Cisneros.5 At the
close of the government’s case-in-chief, Appellants moved for a judgment of
acquittal, arguing that there was no evidence of any agreement by the
Appellants, and also no evidence that Appellants agreed to distribute more than
five kilograms of cocaine. The district court denied the motion. Chavez called two
character witnesses in his defense. Rendon, Sanchez, and Barrera-Luna called
no witnesses. At the close of all evidence, the district court denied a second
motion for acquittal. Chavez and Sanchez also objected to the court submitting


       4
         A subsequent search of the bag revealed that it contained $29,910. Officer Martinez
testified that, by sight, he did not believe the bag contained enough money for all ten
kilograms, but contained enough for five kilograms.
       5
         Officer Cisneros testified only very briefly before Sanchez objected to his testimony
as cumulative. The court did not explicitly rule on Sanchez’s objection, but indicated its belief
that there was no need to have Cisneros testify to the same facts as Officer Martinez had. The
government asked two additional questions and ended its examination. None of the defendants
cross-examined Officer Cisneros.

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to the jury the issue of whether the conspiracy involved more than five kilograms
of cocaine.6 The judge overruled the objection. The jury convicted Chavez,
Rendon, and Sanchez of the charge listed in the indictment, conspiring to
possess with intent to distribute more than five kilograms of cocaine. Post-
verdict, the district court denied Sanchez’s joint motion for acquittal and for new
trial.
         At sentencing, Rendon and Chavez objected to the use of ten kilograms of
cocaine to calculate their sentences, arguing that the amount attributed to each
should be less than five kilograms.7 The district court overruled their objections,
specifically noting that the jury had found the amount of cocaine attributable to
the conspiracy was more than five kilograms. Rendon additionally objected to
the application of an adjustment to the base level of his offense of two levels due
to his role as a supervisor in the conspiracy under U.S.S.G. § 3B1.1(c). The
district court also overruled this objection. The district court imposed a 121-
month term of imprisonment as to Chavez, 135 months as to Sanchez, and 188
months as to Rendon. Appellants timely appealed.
                                      II. ANALYSIS
A.       Sufficiency of the Evidence to Support the Cocaine Conspiracy
         Conviction

         1.     Standard of Review
         A motion for a judgment of acquittal is a challenge to the sufficiency of the
evidence. United States v. Moreno, 185 F.3d 465, 470 (5th Cir. 1999). Appellants


         6
          The government and Rendon disagree as to whether Rendon properly objected to the
district court’s submission to the jury of the greater-than-five kilogram charge. In light of the
ultimate disposition of this appeal, however, we need not address this issue.
         7
         Sanchez did not object to the district court’s calculation of his guidelines range, but
contends that his motions for acquittal and a new trial sufficiently preserved the objection.
The government disagrees, and argues Sanchez waived any error as to the quantity of cocaine
for sentencing purposes. In light of the ultimate disposition of this appeal, however, we need
not address this issue.

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moved for a judgment of acquittal at the close of the government’s case, renewed
the motion at the close of all evidence, and Sanchez renewed the motion again
after the jury verdict. Therefore, their challenge to the sufficiency of the evidence
is preserved for de novo appellate review. See F ED. R. C RIM. P. 29(a), (c)(1);
United States v. Izydore, 167 F.3d 213, 219 (5th Cir. 1999). This court reviews
the denial of a motion for new trial under an abuse of discretion standard.
United States v. O’Keefe, 128 F.3d 885, 893 (5th Cir. 1997). “This standard is
necessarily deferential to the trial court because we have only read the record,
and have not seen the impact of witnesses on the jury or observed the demeanor
of the witnesses ourselves, as has the trial judge.” Id. “Although grant or denial
of the motion is entrusted to the sound discretion of the judge, motions for new
trial are not favored, and are granted only with great caution.” Id. at 897.
      As to Appellants’ related argument that the district court improperly
submitted to the jury the issue of whether the conspiracy involved more than
five kilograms of cocaine, “we must first decide whether the court’s charge, as a
whole, is a correct statement of the law and whether it clearly instructs jurors
as to the principles of law applicable to the factual issues confronting them”.
United States v. Mendoza-Medina, 346 F.3d 121, 132 (5th Cir. 2003) (quotations
omitted). The trial court’s charge must not only be “legally accurate, but also
factually supportable”; “the court may not instruct the jury on a charge that is
not supported by evidence.” Id. (quotations omitted). “In assessing whether the
evidence sufficiently supports the district court’s charge, we view the evidence
and all reasonable inferences that may be drawn from the evidence in the light
most favorable to the Government. Any error is subject to harmless error
review.” Id. (quotations omitted).
      2.     Discussion
      “To prove that a defendant is guilty of conspiring to distribute illegal drugs
under 21 U.S.C. § 846, the Government must prove beyond a reasonable doubt:

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(1) the existence of an agreement between two or more persons to violate
narcotics laws, (2) knowledge of the conspiracy and intent to join it, and (3)
voluntary participation in the conspiracy.” United States v. Turner, 319 F.3d 716,
721 (5th Cir. 2003). In this case, the indictment alleges a conspiracy involving
the distribution of a quantity greater than five kilograms of cocaine, an amount
that triggers a statutory minimum penalty of ten-years imprisonment.
Therefore, a fourth element applies, and the government must prove the drug
quantity alleged in the indictment beyond a reasonable doubt. Id. at 722.
      At trial, Appellants argued that the government did not prove the
existence of an agreement between them sufficient for a conviction under § 846.
On appeal, however, Appellants do not challenge the government’s proof as to
the first three elements of § 846, but rather argue that the government failed to
prove that the conspiracy involved more than five kilograms of cocaine—put
more simply, Appellants do not dispute that they conspired to sell cocaine, but
argue they never agreed to sell more than five kilograms of cocaine. Having
reviewed the record, we disagree, and hold that the evidence before the jury was
sufficient to support the verdict.
      As Chavez concedes in his brief, the evidence at trial showed Chavez and
Sanchez each represented to the officers that they had an agreement between
themselves to purchase ten kilograms of cocaine from the officers. While
Appellants argue that, in fact, they had no such agreement, our review is
“limited to whether the jury’s verdict was reasonable, not whether we believe it
to be correct.” United States v. Williams, 264 F.3d 561, 576 (5th Cir. 2001).
Chavez and Sanchez’s representations to the officers support the jury’s
conclusion.




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       Officer Martinez’s testimony and transcripts of audio recordings 8 of
conversations between the Appellants and the undercover officers also support
the jury’s verdict. While Appellants make much of the fact that Officer Martinez
is apparently the only person to definitively use the words “ten kilograms” on the
audio recordings, “[t]he agreement and the defendant[s’] knowledge and
participation in the conspiracy may be inferred from the development and
collocation of circumstances.” United States v. Hayes, 342 F.3d 385, 390 (5th Cir.
2003) (quotations omitted). Appellants seize on portions of the audio transcript
that, in their view, demonstrate that they were not going to be able to
consummate a deal for ten kilograms. But the audio transcripts are not the only
evidence     of   conversations      between     Appellants      and    the    undercover
officers—indeed, several conversations were not recorded. Officer Martinez
testified that the parties, specifically Chavez and Sanchez, agreed to a ten-
kilogram transaction. While Appellants advanced at trial that the $29,100 and
the five vehicles offered in exchange for the cocaine are more consistent with
their theory that the agreement was to buy an amount less than ten kilograms,
Officer Martinez testified that the vehicles were offered in good faith to reassure
the officers that the ten-kilogram transaction would be completed.
       Appellants’ intimation that they only intended to take possession of less
than five kilograms of cocaine on the day they were arrested is largely
irrelevant9 —an inchoate crime such as conspiracy only requires the conspiracy
to be proven, “it is not necessary to show completion of the objective of that
inchoate crime.” United States v. Rey, 641 F.2d 222, 224 n.6 (5th Cir. 1981 Unit



       8
        Transcripts were used because the conversations between the relevant parties were
all conducted in Spanish.
       9
        To the extent Appellants argue that they did not have the resources to purchase ten
kilograms of cocaine, “factual impossibility does not preclude a conviction for conspiracy or
attempt.” United States v. Burke, 431 F.3d 883, 886 (5th Cir. 2005).

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A). Moreover, even assuming arguendo that Appellants did only intend to
purchase less than five kilograms of cocaine on the day they were arrested, we
have held that piecemeal transactions of smaller amounts can be aggregated to
define the total amount of drugs attributable to a conspiracy. See, e.g., Turner,
319 F.3d at 724 (“Because Jiminez dealt in one-kilogram quantities only, any
additional request by Robinson of Jiminez would have pushed the total drug
quantity involved in the conspiracy over five kilograms. . . . the inference that
more than five kilograms were involved is reasonable.”). Thus, while Rendon in
particular points to portions of the audio transcripts suggesting that he only
intended to purchase two kilograms of cocaine, Officer Martinez testified that
Rendon was to purchase two kilograms on a specific day, not only two kilograms
of cocaine in total. Viewing the evidence in the light most favorable to the
Government, the inference that more than five kilograms were involved in the
conspiracy is reasonable. As such, neither the district court’s denial of
Appellants’ motions for acquittal nor Sanchez’s motion for new trial was in error.
B.      Attributing More Than Five Kilograms of Cocaine for Sentencing
        Purposes
        “A district court’s findings about the quantity of drugs implicated by the
crime are factual findings reviewed under the clearly erroneous standard.”
United States v. Young, 981 F.2d 180, 185 (5th Cir. 1992) (quotations omitted).
“Such fact findings are not clearly erroneous if they are plausible in light of the
record as a whole.” Turner, 319 F.3d at 724 (quotations omitted). “The
sentencing judge is entitled to find by a preponderance of the evidence all the
facts relevant to the determination of a Guideline sentencing range.” United
States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). Appellants acknowledge that
their argument that the district court clearly erred in determining that their
offenses involved ten kilograms of cocaine turns on the success of the failed
sufficiency of the evidence argument advanced above. For the same reasons


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discussed above, we hold that the district court did not clearly err in attributing
ten kilograms to each appellant.10
C.      Applying the Role Adjustment to Rendon
        “A district court’s interpretation and application of the [Sentencing]
Guidelines is reviewed de novo and its factual determinations are reviewed for
clear error.” United States v. Rhine, 583 F.3d 878, 884 (5th Cir. 2009). The
district court applied a two-level increase to Rendon’s base level of 32 based on
his role in the offense under § 3B1.1(c) of the Sentencing Guidelines. Under that
section, “[b]ased on the defendant’s role in the offense, increase the offense level
as follows: . . . [i]f the defendant was an organizer, leader, manager, or
supervisor in any criminal activity [not involving five or more participants or
otherwise extensive] increase by 2 levels.”             U.S. S ENTENCING G UIDELINES
M ANUAL § 3B1.1(c). The presentence investigation report (PSR) stated that
Rendon “directed the activities of Sanchez,” and that, therefore, a two-level
increase pursuant to § 3B1.1(c) was warranted. The PSR, mirroring the
testimony offered at trial, found that Sanchez “stated he worked for an
individual in Dallas, later identified as Rendon-Alvarado, who was interested in
purchasing 10 kilograms of cocaine” and that Sanchez wanted to “purchase 1
kilogram of cocaine to show his boss.” Furthermore, the PSR found that
“Sanchez stated [to Officer Martinez that] his boss had the money at the city
park . . . nearby” and that Rendon met Sanchez and Officer Martinez at the park
a short time later. Rendon objected to the PSR and argued that the evidence did
not show he directed Sanchez’s activities. At the sentencing hearing, the district




        10
         We note that, for sentencing purposes, there is no difference between a finding that
an offense involved five or ten kilograms of cocaine. See U.S. SENTENCING GUIDELINES MANUAL
§ 2D1.1(c)(4) (explaining that if the offense involved “at least 5 KG but less than 15 KG of
Cocaine,” the base offense level is 32).

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court overruled Rendon’s objection and applied the two-level increase “based on
the facts recited in the [PSR].”
        The district court did not clearly err when factually determining that
Sanchez was acting at Rendon’s direction. “To qualify for an adjustment under
this section, the defendant must have been the organizer, leader, manager, or
supervisor of one or more other participants.” U.S. S ENTENCING G UIDELINES
M ANUAL § 3B1.1 cmt. n.2 (2009). In light of the district court’s factual findings,
we hold that the district court did not err in applying a two-level increase to
Rendon’s base offense level based on his role in the conspiracy.11
D.      The District Court’s Failure to Instruct the Jury on Mens Rea for
        the Drug Quantity Alleged in the Indictment

        Finally, Chavez argues that the district court erred by refusing to give his
requested jury instruction that required the government to prove mens rea as
to the drug quantity alleged in the indictment. As Chavez acknowledges, this
argument is foreclosed by United States v. Gamez-Gonzalez, 319 F.3d 695 (5th
Cir. 2003). Chavez argues that the Supreme Court’s recent decision in
Flores-Figueroa v. United States, ___ U.S. ___, 129 S. Ct. 1886 (2009), strips
Gamez-Gonzalez of its binding force, but concedes that we have rejected this
argument. See United States v. Betancourt, 586 F.3d 303, 309 (5th Cir. 2009)
(“Flores-Figueroa did not overturn Gamez-Gonzalez, and the Government did not
need to prove beyond a reasonable doubt that [Appellant] knew the type and
quantity of drugs . . . .”). Accordingly, Chavez’s argument is foreclosed by court
precedent and we need not discuss it further.




        11
          At Rendon’s sentencing hearing, an agent from the Drug Enforcement Administration
testified that Rendon was identified by an unrelated investigation as being a member of a
Dallas-based cell of La Familia, a Michoacan, Mexico, based drug cartel, and was known as
“General.” We note that the district court applied the role-based adjustment before this
testimony.

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                              III. CONCLUSION
      For the foregoing reasons, we conclude that there was sufficient evidence
to show that Appellants were involved in a conspiracy to distribute more than
five kilograms of cocaine and that the district court did not clearly err in
attributing ten kilograms of cocaine to each Appellant for purposes of
sentencing. Nor did the district court clearly err in applying a two-level increase
to Rendon’s base offense level based upon his role in the offense. Finally, the
district court did not err in declining to give Chavez’s requested jury instruction
as to mens rea. We therefore AFFIRM.




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