IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-40367 _____________________
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
RICARDO FLORES; JULIAN MEDRANO
Defendants - Appellants
_________________________________________________________________
Appeals from the United States District Court for the Southern District of Texas, Laredo Division No. L-98-CR-608-1 _________________________________________________________________ November 26, 2001
Before KING, Chief Judge, and JOLLY and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Defendants Ricardo Flores and Julian Medrano appeal their
convictions and sentences for violations of 21 U.S.C.
§ 841(a)(1). For the reasons that follow, we AFFIRM the
defendants’ convictions and sentences.
* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. I. Factual and Procedural History
In July 1997, Border Patrol agents seized 1,143 kilograms of
cocaine from a truck driven by Eleazar Eggers. As a result of
Eggers’s cooperation after his arrest, agents focused their
investigation on Zenon Cantu and Pablo Santos Chapa. Pursuant to
the investigation, agents obtained a search warrant for and
conducted a search of Cantu’s residence. During the search,
agents seized telephone and address books, ledgers, documents,
communication devices, radios, and cellular telephones. This
evidence suggested a cocaine conspiracy and implicated Vicente
Alvarado-Valdez, Julian Medrano, and Ricardo Flores. Cantu and
Eggers were indicted for conspiracy to possess with intent to
distribute cocaine in violation of 21 U.S.C. § 841(a)(1). Cantu
agreed to cooperate with DEA agents, and as a result of
information obtained from Cantu, Flores, Alvarado-Valdez, Chapa,
and Medrano were charged on July 21, 1998, with conspiracy to
“possess with intent to distribute a Schedule II controlled
substance, to wit: a quantity in excess of 5 kilograms of
cocaine,” also in violation of 21 U.S.C. § 841(a)(1). The jury
trial commenced on October 26, 1998.
Evidence introduced at trial included testimony by Cantu,
Flores, and Medrano, as well as documentary evidence and
telephone logs seized during the investigation. The jury
returned a guilty verdict for both Flores and Medrano on November
2 13, 1999. Flores and Medrano were sentenced on March 1, 2000.
The district court sentenced Flores to thirty years of
imprisonment, ten years of supervised release, and a $100 special
assessment. Medrano received a sentence of twenty-six years of
imprisonment, five years of supervised release, and a $100
special assessment.
On appeal Flores argues (1) that there is insufficient
evidence to support his conviction and (2) that his prison
sentence violates Apprendi v. New Jersey, 530 U.S. 466 (2000).
Medrano argues (1) that there is insufficient evidence to support
conviction, (2) that his prison sentence violates Apprendi,1 (3)
that the district court improperly admitted unfairly prejudicial
evidence, and (4) that the district court improperly enhanced his
sentence for obstruction of justice.2
II. Sufficiency of the Evidence
Both Flores and Medrano argue that the evidence presented to
the jury was insufficient to support their convictions. Neither
Flores nor Medrano moved for a judgment of acquittal at the close
of evidence. We review, therefore, under the “manifest
1 Medrano claims that the jury instructions and his sentence contain two separate Apprendi errors. Because of the nature of our Apprendi analysis, we must view those claims as raising one issue. 2 Notably, neither Flores nor Medrano challenges his term of supervised release.
3 miscarriage of justice” standard. See United States v. Johnson,
87 F.3d 133, 136 (5th Cir. 1996); United States v. McCarty, 36
F.3d 1349, 1358 (5th Cir. 1994). Such a miscarriage of justice
can be shown if “there is no evidence of the defendant’s guilt,”
United States v. Villasenor, 236 F.3d 220, 222 (5th Cir. 2000),
or “the evidence on a key element of the offense [is] so tenuous
that a conviction would be shocking,” McCarty, 36 F.3d at 1358
(quoting United States v. Pierre, 958 F.2d 1304, 1310 (5th Cir.
1992) (en banc)).
The elements of a § 841(a)(1) drug conspiracy are (1) an
agreement to possess narcotics with the intent to distribute, (2)
knowledge of the agreement, and (3) voluntary participation in
the agreement. See Unites States v. Fierro, 38 F.3d 761, 768
(5th Cir. 1994). A jury may infer these elements from
circumstantial evidence. See United States v. Morgan, 117 F.3d
849, 853 (5th Cir. 1997). Although mere association with
conspirators is insufficient to prove knowing participation in an
agreement, such association combined with other circumstantial
evidence may support a conspiracy conviction. See United States
v. Cortinas, 142 F.3d 242, 249 (5th Cir. 1998).
Cantu, the primary witness for the prosecution, testified to
the existence of a drug conspiracy and Flores’s and Medrano’s
knowing participation in that conspiracy. Flores and Medrano
argue that their convictions cannot rest solely on the
uncorroborated testimony of Cantu, a coconspirator who agreed to
4 cooperate with the government. We disagree. A conviction may
rest upon the uncorroborated testimony of an accomplice who has
entered into a leniency agreement with the government, as long as
the testimony is not incredible as a matter of law. See United
States v. Posada-Rios, 158 F.3d 832, 861 (5th Cir. 1998).
Cantu’s testimony was not incredible as a matter of law because
it did not “relate[] to facts that [Cantu] could not possibly
have observed or to events which could not have occurred under
the laws of nature.” Id. Furthermore, Cantu’s testimony was
supported by documentary evidence and phone records. It is the
jury’s duty to evaluate the credibility of a compensated witness.
See United States v. Bermea, 30 F.3d 1539, 1553 (5th Cir. 1994).
Because we find sufficient evidence to convict both Flores and
Medrano, we will not second-guess the jury’s guilty verdicts.
III. Apprendi Error Analysis
In Apprendi, the Supreme Court established that “[o]ther
than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable doubt.”
530 U.S. at 490. This court has noted that “[t]he decision in
Apprendi was specifically limited to facts which increase the
penalty beyond the statutory maximum.” United States v. Doggett,
230 F.3d 160, 166 (5th Cir. 2000). Medrano and Flores were
5 prosecuted under 21 U.S.C. § 841(a)(1). For a § 841(a)(1)
violation involving an unspecified drug quantity, § 841(b)(1)(C)
establishes the statutory maximum penalty of twenty years of
imprisonment.3 Under Apprendi, a defendant charged with a
§ 841(a)(1) violation may not be sentenced beyond the twenty-year
statutory maximum unless a drug quantity triggering a higher
maximum penalty under § 841(b)(1)(A) or (B) was alleged in the
indictment and submitted to a jury to find beyond a reasonable
doubt. See United States v. Keith, 230 F.3d 784, 787 (5th Cir.
2000).
Both Flores and Medrano argue that their sentences, thirty
years and twenty-six years respectively, are impermissible under
Apprendi. They contend that because no drug quantity was
submitted to the jury to find beyond a reasonable doubt, the
district court was not authorized to sentence them beyond the
§ 841(b)(1)(C) twenty-year statutory maximum.4 Under our cases,
to establish Apprendi error, Flores and Medrano must show that:
(1) their sentences are longer than the applicable statutory
maximum penalty and (2) drug quantity was not submitted to the
jury to find beyond a reasonable doubt. See United States v.
Slaughter, 238 F.3d 580, 582-83 (5th Cir. 2001) (noting that only
3 A prior conviction for a felony drug offense raises this statutory maximum penalty to thirty years of imprisonment. 21 U.S.C. § 841(b)(1)(C) (1999). 4 Both Flores and Medrano concede that their indictments adequately allege drug quantity.
6 facts which increase the penalty for a crime beyond the statutory
maximum must be submitted to the jury to find beyond a reasonable
doubt).
A. Medrano’s Sentence
Medrano and Flores were charged in Count One of the
indictment with conspiracy to “possess with intent to distribute
a Schedule II controlled substance, to-wit: a quantity in excess
of 5 kilograms of cocaine.” When giving the jury instructions,
the district court read Count One of the indictment and then
stated:
For you to find the Defendant guilty of conspiring to possess with intent to distribute as charged in Count One of the indictment, you must first be convinced that the Government has proved each of the following with respect to the Defendant beyond a reasonable doubt: First, that two or more persons made an agreement to commit the crime of possession with intent to distribute as charged in Count One of the indictment; Second, that the Defendant knew the unlawful purpose of the agreement and joined in it willfully, that is, with the intent to further the unlawful purpose.
(emphasis added). Medrano did not object to the adequacy of the
jury instructions at trial. The jury found Medrano guilty, and
the district court sentenced him to twenty-six years of
imprisonment, six years greater than the maximum allowed under
§ 841(b)(1)(C).5
5 The twenty year statutory maximum penalty applies to Medrano because he has no prior felony drug convictions.
7 On appeal, Medrano argues that United States v. Clinton, 256
F.3d 311 (5th Cir. 2001), which involved a similar jury
instruction that the court found flawed under Apprendi, mandates
reversal of his conviction. Because Medrano failed to object to
the jury instructions at trial, we review the alleged Apprendi
violation for plain error only. See United States v. Johnson,
520 U.S. 461, 469 (1997) (reviewing for plain error when the
defendant failed to object to an omission in the jury
instructions at trial). This deferential standard of review
dictates that before this court can correct an error not raised
at trial, there must be (1) an “error,” (2) that is “plain,” (3)
that “affect[s] substantial rights,” and (4) that “seriously
affect[s] the fairness, integrity, or public reputation of
judicial proceedings.” United States v. Olano, 507 U.S. 725, 732
(1993) (internal citations and quotations omitted).
Assuming arguendo that these facts establish an Apprendi
error, it does not amount to plain error under the Johnson-Olano
standard. At trial, Cantu testified that Medrano voluntarily
transported approximately 840 kilograms of cocaine to New York.
Cantu’s testimony is supported by documentary evidence and phone
records. Medrano testified that he drove a truck of furniture to
New York for Cantu and did not knowingly transport cocaine.
Having disclaimed any knowledge of the cocaine, Medrano
understandably offered no evidence as to the amount of cocaine
involved, and there is no suggestion in the record that a
8 quantity of cocaine less than 840 kilograms could have been
involved. Accordingly, the evidence that at least 840 kilograms
of cocaine was transported is overwhelming, and we have no basis
for concluding that the alleged Apprendi error “seriously
affect[ed] the fairness, integrity or public reputation of
judicial proceedings.” Johnson, 520 U.S. at 470. Accordingly,
we affirm Medrano’s sentence.
B. Flores’s Sentence
In arguing that his sentence of thirty years of imprisonment
violates Apprendi, Flores incorrectly assumes that the applicable
statutory maximum is twenty years. Having been convicted of a
prior felony drug offense, Flores is subject to a statutory
maximum of thirty years of imprisonment. § 841(b)(1)(C);6 see
also Keith, 230 F.3d at 786 (noting that the defendant’s maximum
prison sentence under § 841(b)(1)(C) is thirty years because of
his prior felony conviction). We find Apprendi error only in
those cases where a defendant’s sentence exceeds the statutory
maximum. See United States v. Salazar-Flores, 238 F.3d 672, 673-
74 (5th Cir. 2001). Because Flores’s sentence of thirty years of
imprisonment does not exceed the statutory maximum applicable to
him, it does not violate Apprendi. Accordingly, we affirm
Flores’s sentence.
6 Section 841(b)(1)(C) provides that “[i]f any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment of not more than 30 years.”
9 IV. Evidence of Medrano’s Prior Drug Transactions
Medrano argues that the district court improperly admitted
documents and testimony referencing past, unrelated drug
transactions under Federal Rule of Evidence 404(b) (“Rule
404(b)”).7 Although at one point during trial Medrano objected
to some documentary evidence referencing past drug transactions,
his objection was a hearsay objection. Medrano never objected to
documentary or testimonial evidence concerning prior drug
transactions on Rule 404(b) grounds. Despite the lack of a Rule
404(b) objection, the district court explicitly ruled that the
extrinsic act evidence relating to past drug transactions was
admissible under Rule 404(b).8
Generally, we review the district court’s rulings regarding
admissibility of extrinsic act evidence under Rule 404(b) for
abuse of discretion. See Alarcon, 261 F.3d at 424. Because
7 Rule 404(b) provides that: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. 8 Medrano argues that the district court erred because it did not articulate on the record its balancing of probative value and prejudice. Because Medrano did not request that the district court perform this analysis, however, the court need not do so on the record. See United States v. Alarcon, 261 F.3d 416, 424 (5th Cir. 2001).
10 Medrano failed to object to the Rule 404(b) ruling, however, we
review the district court’s ruling for plain error. See United
States v. Smith, 203 F.3d 884, 890 (5th Cir. 2000). An error is
plain only when “in the context of the entire case, it is ‘so
obvious and substantial that [the district court’s] failure to
notice and correct it would affect the fairness, integrity or
public reputation of judicial proceedings.’” Id. (quoting United
States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991)).
When determining the admissibility of evidence under Rule
404(b), this court applies the two-part test established in
United States v. Beechum, 582 F.2d 898 (5th Cir. 1978). First,
we ask whether the extrinsic act evidence “is relevant to an
issue other than the defendant’s character.” Id. at 911. We
have held that evidence of past drug transactions is relevant in
a drug conspiracy prosecution to establish criminal intent. See
United States v. Misher, 99 F.3d 664, 670 (5th Cir. 1996).
Medrano placed his intent in issue by pleading not guilty. See
id.; see also United States v. Wilwright, 56 F.3d 586, 589 (5th
Cir. 1995). Therefore, evidence of Medrano’s past drug
transactions is relevant to show his intent, and the first step
of the Beechum inquiry is satisfied.
Second, we determine whether the probative value of the
extrinsic act evidence is substantially outweighed by its undue
prejudice. See Beechum, 582 F.2d at 911. When considering the
probative value of extrinsic act evidence, we examine the
11 following factors: “(1) the extent to which the defendant’s
unlawful intent is established by other evidence, (2) the overall
similarity of the extrinsic and charged offenses, and (3) the
amount of time that separates the extrinsic and charged
offenses.” United States v. Chavez, 119 F.3d 342, 346-47 (5th
Cir. 1997). First, Cantu’s testimony regarding Medrano’s past
drug transactions and the documentary evidence supporting that
testimony is critical to the government’s proof of Medrano’s
criminal intent. Medrano testified that he never knowingly
participated in drug transactions with Cantu. Because there is
little evidence of Medrano’s intent apart from his own testimony,
evidence tending to show that Medrano knowingly collaborated with
Cantu in prior drug transactions is very probative of Medrano’s
criminal intent regarding the cocaine transaction at issue. See
id. at 347 (finding a fifteen-year-old conviction to be probative
of intent, particularly “given the lack of other evidence of [the
defendant’s] intent”).
Second, the prior marijuana transactions are sufficiently
similar to the cocaine transaction at issue to be probative.
Both transactions involved Medrano and Cantu and the
transportation of large loads of drugs out of Laredo, Texas. The
fact that the prior transaction involved marijuana instead of
cocaine does not destroy the probative value of that transaction.
See id. at 347 (finding a past conviction for a cocaine
conspiracy probative in a case regarding a marijuana conspiracy).
12 Third, the time period between the marijuana transactions and the
cocaine transaction is probative of Medrano’s intent because the
marijuana transactions occurred mere months before the cocaine
transaction at issue.
Furthermore, when instructing the jury, the district court
cautioned that evidence of extrinsic acts must not be considered
“in deciding if the Defendant committed the acts charged in the
indictment.” The district court instructed the jury to consider
such evidence only “to determine whether the Defendant had the
state of mind or intent necessary to commit the crime charged in
the indictment.” Id. These jury instructions minimized any
potential prejudice to Medrano. See United States v. Gadison, 8
F.3d 186, 192 (5th Cir. 1993). These facts suggest that the
probative value of the extrinsic act evidence is not
substantially outweighed by its undue prejudice. For these
reasons, we find that the district court did not commit plain
error, or indeed any error at all, when it admitted evidence of
Medrano’s prior marijuana transactions under Rule 404(b).
V. Medrano’s Obstruction of Justice Enhancement
Medrano argues that the district court improperly imposed a
two-level sentence enhancement for obstruction of justice,
specifically perjury, pursuant to § 3C1.1 of the United States
Sentencing Guidelines (the “Guidelines”). See U.S. SENTENCING
13 GUIDELINES MANUAL § 3C1.1 (1998). Generally, we review the district
court’s interpretation and application of the Guidelines de novo
and its factual findings, such as a finding of obstruction of
justice, for clear error. See United States v. Huerta, 182 F.3d
361, 364 (5th Cir. 1999). We review the district court’s finding
of obstruction of justice for plain error, however, if the
defendant did not object to the sufficiency of the finding in the
sentencing hearing. See id. at 366.
During the sentencing hearing, Medrano objected to the
constitutionality of the two-level enhancement for obstruction of
justice. However, he never objected to the sufficiency of the
district court’s factual findings regarding his obstruction of
justice. Id. In Huerta, the defendant objected to the district
court’s obstruction of justice finding by arguing: (1) that there
was a lack of evidence showing that the defendant fled from the
arresting officers and (2) that mere flight to avoid apprehension
did not constitute obstruction of justice. See 182 F.3d at 363.
On appeal, Huerta raised those same arguments and also argued
that the district court had misapplied the Guidelines by not
explicitly addressing the issue of willfulness. See id. at 365-
66. This court reviewed that new challenge under the plain error
standard. See id. at 366. Our holding in Huerta suggests that a
specific objection to a two-level enhancement for obstruction of
justice before the district court does not preserve for appeal
other objections to the enhancement. Because Medrano only
14 objected to the constitutionality of the two-level enhancement
for obstruction of justice and did not specifically object to the
sufficiency of the district court’s factual findings regarding
that enhancement, we review the new objection for plain error
only.
The Presentence Report (the “PSR”) recommended a two-level
enhancement of Medrano’s sentence for obstruction of justice.
The PSR stated: “The defendant testified falsely at his trial.
[He] testified falsely concerning the offense, in regard to his
role and that of the codefendants. He has obstructed justice in
this case.” Id. The district court adopted the factual findings
set forth in the PSR. The commentary to § 3C1.1 of the
Guidelines states that perjury is one example of the type of
conduct to which a two-level enhancement for obstruction of
justice may apply. § 3C1.1 cmt. 4(b). In United States v.
Dunnigan, 507 U.S. 87 (1993), the Supreme Court explained that a
defendant commits perjury for purposes of § 3C1.1 if he “gives
false testimony concerning a material matter with the willful
intent to provide false testimony, rather than as a result of
confusion, mistake, or faulty memory.” Id. at 95. Although
favored, separate findings on each element of perjury are not
required. Id. Medrano concedes that by adopting the findings of
the PSR, the district court made findings concerning two elements
required for perjury: (1) false testimony and (2) concerning a
15 material matter. Medrano argues that the district court erred by
not explicitly finding willfulness.
In United States v. Morris, 131 F.3d 1136 (5th Cir. 1997),
the district court found that “Morris was untruthful at trial
with respect to material matters in this case.” Id. at 1140.
Despite the fact that the district court in Morris never
explicitly found willfulness, we found no clear error in the
court’s imposition of a two-level enhancement for obstruction of
justice. Id. Similarly, despite the lack of an explicit
district court finding regarding Medrano’s willfulness in the
instant case, there is no clear error and, thus, no plain error.
In spite of testimonial and documentary evidence to the
contrary, Medrano claimed throughout his trial that he had no
knowledge of the cocaine conspiracy. We find that the district
court’s findings regarding Medrano’s false testimony on material
matters are sufficient to support the two-level enhancement for
obstruction of justice.
VI. Conclusion
For all the foregoing reasons, we find (1) that there is
sufficient evidence to support Flores’s and Medrano’s guilty
verdicts, (2) that the alleged Apprendi error in Medrano’s prison
sentence was not plain error, (3) that Flores’s prison sentence
contains no Apprendi error, (4) that the district court’s
16 admission of evidence of Medrano’s past drug transactions was not
plain error, and (4) that the two-level enhancement of Medrano’s
sentence was not plain error. Thus, we AFFIRM the defendants’
convictions and sentences.
AFFIRMED.