United States v. Valdez

United States Court of Appeals
Fifth Circuit
F I L E D
June 15, 2006
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 04-50499
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
CESAR ARRNOLDO VALDEZ,
HECTOR RAUL VALDEZ,
Defendants-Appellants.
_________________________
Appeals from the United States District Court
for the Western District of Texas
_________________________
Before SMITH, GARZA, and OWEN,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Hector and Cesar Valdez appeal their con-
victions and sentences on various drug charges.
We affirm the convictions and Hector’s sen-
tence. We vacate Cesar’s sentence and remand
for re-sentencing.
I.
This case involves a drug conspiracy to
transport large quantities of marijuana and, on
at least two occasions, cocaine from Del Rio,
Texas, to Dallas, Texas. Five defendants were
charged in an eight-count indictment for their
alleged involvement in the operation, but only
the appellants, Hector and Cesar Valdez, were
convicted following a jury trial.1
1 One co-defendant pleaded guilty and the other
(continued...)

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2
Hector and Cesar were found guilty of con-
spiracy to possess with intent to distribute
1,000 kilograms or more of marihuana, in vio-
lation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and
846 (Count One). Hector was also found guilty
of aiding and abetting possession with intent to
distribute more than 50 kilograms of marihuana
on or about June 11 to June 13, 2001, in viola-
tion of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C),
and 18 U.S.C. § 2 (Count Two); he was found
not guilty of the two cocaine-related charges
against him (Counts Seven and Eight). Cesar
was found guilty of aiding and abetting posses-
sion with intent to distribute more than 100
kilograms of marihuana on or about October
16, 2001 (Count Four), and on or about De-
cember 2, 2001 (Count Five), in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1)(B), and 18
U.S.C. § 2.
The court sentenced Hector to 360 months
of imprisonment on Count One (the conspir-
acy/marihuana charge) and 240 months on
Count Two (the aiding and abetting charge),
the sentences to run concurrently; 5 years of
supervised release; and a $25,000 fine. Cesar
was sentenced to 360 months on each of
Counts One (conspiracy), Four (aiding and
abetting/October 16, 2001) and Five (aiding
and abetting/December 2, 2001), the sentences
to run concurrently; 5 years of supervised re-
lease; and a $25,000 fine.
Hector and Cesar appeal, alleging that the
evidence is insufficient to support their convic-
tions and that the district court abused its dis-
cretion by denying their motions for severance,
made clearly erroneous factual findings with
regard to their relevant conduct and alleged
leadership roles, and committed reversible
Booker error.
II.
Where, as here, the defendants moved for
judgment of acquittal at the close of the evi-
dence, we decide whether the evidence is suf-
ficient by “viewing the evidence and the infer-
ences that may be drawn from it in the light
most favorable to the verdict” and determining
whether “a rational jury could have found the
essential elements of the offenses beyond a
reasonable doubt.” United States v. Pruneda-
Gonzalez, 953 F.2d 190, 193 (5th Cir. 1992).
The jury has the sole responsibility for weigh-
ing the evidence and making credibility deter-
minations. United States v. Jaramillo, 42 F.3d
920, 923 (5th Cir. 1995). “It is not necessary
that the evidence exclude every rational hy-
pothesis of innocence or be whollyinconsistent
with every conclusion except guilt, provided a
reasonable trier of fact could find the evidence
establishes guilt beyond a reasonable doubt.”
Pruneda-Gonzalez, 953 F.2d at 193. “How-
ever, we must reverse a conviction if the
evidence construed in favor of the verdict
gives equal or nearly equal circumstantial sup-
port to a theory of guilt and a theory of inno-
cence of the crime charged.”2
A.
To prove conspiracy to possess and dis-
tribute a controlled substance, the government
must show beyond a reasonable doubt (1) the
existence of an agreement between two or
more persons to violate narcotics laws; (2) the
defendant’s knowledge of the agreement; and
1(...continued)
two were acquitted.
2 Jaramillo, 42 F.3d at 923; see also United
States v. Gonzales, 436 F.3d 560, 571 (5th Cir.),
cert. denied, 126 S. Ct. 2045 (2006), and cert.
denied, 2006 U.S. LEXIS 4372 (U.S. June 5,
2006) (No. 05-1324), and cert. denied, 2006 U.S.
LEXIS 4373 (U.S. June 5, 2006) (No. 05-10509).

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3
(3) his voluntary participation in the conspir-
acy.3
Mere presence at a crime scene or associa-
tion with conspirators is not enough to prove
participation in a conspiracy, but the “agree-
ment, a defendant’s guilty knowledge and a de-
fendant’s participation in the conspiracy all may
be inferred from the development and colloca-
tion of circumstances.”4 “[A] defendant may be
convicted on the uncorroborated testimony of
a coconspirator who has accepted a plea bar-
gain unless the coconspirator’s testimony is
incredible.” United States v. Villegas-Rodri-
guez, 171 F.3d 224, 228 (5th Cir. 1999).
“Testimony is incredible as a matter of law only
if it relates to facts that the witness could not
possibly have observed or to events which
could not have occurred under the laws of na-
ture.” United States v. Bermea, 30 F.3d 1539,
1552 (5th Cir. 1994).
There is ample evidence to support the con-
spiracy charge against Hector. Although much
of the evidence consisted of testimony by three
coconspirators—Alfred Garcia, Pedro Ramirez,
and Javier Cardenas—who accepted plea bar-
gains and hoped for sentence reductions in ex-
change for their testimony, their testimony is
not incredible, and each coconspirator’s testi-
mony tends to corroborate the testimony of the
other coconspirators. Moreover, the jurors
were adequately informed during direct and
cross-examination about the coconspirators’
motivation for testifying, and the jury was free
to believe or disbelieve their testimony.
Garcia testified that Hector and Ramirez
started transporting marihuana out of Garcia’s
house in January 2001. Hector and Ramirez
would pick up the marihuana from a supplier
in Mexico, load it into Hector’s truck, and
take it back to Garcia’s house to break up and
repackage in duffle bags. Hector was occa-
sionally involved in breaking down the mari-
huana and would wear socks on his hands to
keep from getting fingerprints on the drugs.
Hector’s truck would be used to transport the
drugs to Dallas, where a man named Rudy
would buy them. Hector and Ramirez would
pay him when he transported the drugs from
Del Rio to Dallas.
Garcia’s testimony was corroborated by
Ramirez, who testified about the same agree-
ment, which involved picking up the mari-
huana from the border, repackaging it into duf-
fle bags at Garcia’s, and transporting it to
Dallas in Hector’s truck. According to Ramir-
ez, the money for each load would sometimes
be split three ways between Ramirez, Hector,
and Garcia, although sometimes Garcia would
get paid less. Hector was paid regardless of
whether he actuallytransported the marihuana.
Ramirez also stated that Hector came up with
the idea of leaving at 5:30 a.m. to avoid the
Border Patrol.
Cardenas’s testimony further corroborates
the existence of the conspiracy and Hector’s
participation therein. Cardenas testified that
Ramirez recruited him to drive a load to Dal-
las. Ramirez corroborated this testimony.
Cardenas further testified that he picked up the
marihuana by the river and unloaded it at Gar-
cia’s house; Garcia corroborated this testimo-
ny. Ramirez drove him to Hector’s house to
3 United States v. Pompa, 434 F.3d 800, 806
(5th Cir. 2005); United States v. Sacerio, 952 F.2d
860, 863 (5th Cir. 1992).
4 United States v. Lentz, 823 F.2d 867, 868 (5th
Cir. 1987); see also United States v. Norman, 415
F.3d 466, 471 (5th Cir. 2005), cert. denied, 126 S.
Ct. 1087 (2006).

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4
pick up Hector’s truck with which to transport
the drugs. According to Cardenas, once he got
to Hector’s place, Hector wanted him to drive
Ramirez and Hector around the block so they
could talk without the next-door neighbor, a
sheriff, overhearing.
Cardenas was arrested on June 13, 2001, be-
fore reaching Austin, and he was driving Hec-
tor’s truck with over 200 pounds of marihuana
and over 130 pounds of cocaine. The arresting
officer testified about the arrest and stated that
an insurance card, bearing Hector’s name, was
found in the truck.5 A rational jury could have
found Hector guilty of conspiracy beyond a rea-
sonable doubt on the basis of all the evidence.
B.
As we have explained, the evidence was suf-
ficient to support the finding that a conspiracy
to possess with intent to distribute marihuana
existed between Hector, Ramirez, and Garcia
starting in January 2001. There is similarly
ample evidence supporting the finding that
Cesar had knowledge of the conspiracy and
voluntarily participated in it sometime between
January 2001 and October 2002.
Garcia and Ramirez testified that, after
Cardenas was busted with marihuana and co-
caine in Hector’s truck, Cesar took over Hec-
tor’s role in the operation. They testified that
Cesar would recruit drivers to go pick up the
marihuana at a rest area outside of Comstock
(which is near Del Rio) and that the marihuana
would be loaded onto Cesar’s blue Chevy
Silverado (although Cesar would not always
accompany the drivers). According to Ramir-
ez and Garcia, the marihuana was often taken
from Comstock to Cesar’s trailer in Austin be-
fore it was repacked and moved north to
Dallas, although sometimes the loads were
taken straight to Dallas.
Garcia testified that Cesar would be paid
the same amount that his brother, Hector, had
been paid during his involvement. Ramirez
stated that, after Cesar took over Hector’s
role, the same person in Mexico was supplying
the marihuana, and the same person in Dallas
was buying the loads and paying the same
amount as before.
The testimony of Antonio Reyes also cor-
roborated Garcia’s and Ramirez’s testimony
regarding Cesar’s knowledge of and participa-
tion in the conspiracy. He testified that he saw
large quantities of marihuana at Cesar’s trailer
home and that Cesar kept a large amount of
money under his mattress. He also stated that
Cesar had recruited him.6
5 Testimony by Hector’s mistress, Julie Morales,
corroborates the existence of the conspiracy and his
involvement in it. Julie testified that she met Hector
at the Cora Street home (Garcia’s house), where she
saw Hector and Ramirez unload what looked like
bales of hay. When Julie asked Hector what the
bales were, he said “skunk weed.” Julie was fright-
ened by the large quantity of the drugs, and she
called a friend to pick her up. Hector told her not to
tell anyone what she had seen, and he “joked” that
he would burn her in her car and have her followed
if she did. After the incident, Julie said Hector “was
always paranoid about who [she] was talking to”
and “would pat [her] down to make sure [she]
wasn’t wired.” Finally, she testified that Hector told
her he had made $275,000 from the drug business
and that he had it stashed away somewhere. (This
money was not recovered in a search of Hector’s
residence.)
6 Reyes further testified that, on one occasion,
Cesar offered him $8,000 to drive to Comstock to
pick up marihuana and that Cesar accompanied
him on the trip. Reyes testified that he and Garcia
(continued...)

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5
Reyes testified that he drove to Del Rio on
two other occasions for Cesar; on the first, the
marihuana was never delivered, and on the sec-
ond, he was arrested. On December 2, 2001,
Reyes, according to his testimony and that of
the arresting officer, was arrested transporting
256 pounds of marihuana; he was driving a
Chevrolet Blazer that he claimed was provided
by Cesar.
Macabee Memmen further corroborated Ce-
sar’s involvement in the conspiracy. He testi-
fied that Cesar would occasionally store mari-
huana for brief periods at his apartment. Cesar
asked him to pick up a load of marihuana in
Comstock, but he declined. Memmen stated
that he and his fiance accompanied Cesar to
Dallas one time, and they followed Jose Leal,
who was driving a load of marihuana in Cesar’s
Chevrolet Silverado. Based on all the tes-
timony, a rational jury could have concluded
that Cesar had knowledge of and voluntarily
participated in the conspiracy.
C.
Defendants complain that the evidence does
not support the jury’s finding, in response to a
special interrogatory, that the amount of mari-
huana involved in the conspiracy was 1000 kil-
ograms or more (approximately 2200 pounds).
This claim is without merit. According to Gar-
cia, Hector was actively involved in the drug
transportation operation from January to June
2001, during which time 10 loads were trans-
ported, with each load weighing between 500
and 1000 pounds. Garcia testified that he oc-
casionally weighed the loads.
Ramirez similarly testified that 10 loads
were transported between January and June of
2001, but he estimated that each load weighed
between 400 and 500 pounds. His estimate
was based on the amount of money paid for
each load, which was between $15,000 and
$20,000. At $50 per pound, this would actu-
ally yield 300 to 400 pounds per load. Finally,
over 200 pounds of marihuana was seized
from Hector’s truck in June 2001, in addition
to approximately 130 pounds of cocaine.
A rational jury could have concluded that
based on the quantity of drugs seized, at least
330 pounds of marihuana was transported
each time, because when cocaine was not
transported, more marihana was transported in
its place. Thus, even a conservative estimate
based on the testimony and actual seizure
would yield at least 3300 pounds of marihuana
during Hector’s involvement in the conspiracy,
which is in excess of 1000 kilograms.
Similarly, Ramirez testified that 10 loads of
marijuana were transported after the June 13
bust, when Cesar took over Hector’s role and
was plainly participating in the conspiracy.
Garcia testified that, after the June bust, each
load was closer to 100 to 200 kilograms.
Moreover, the actual loads seized in October
and December 2001 were just over 100 kilo-
grams, yielding a conservative estimate of
1000 kilograms. A rational jury could have
concluded that at least 1000 kilograms was
transported during Cesar’s involvement in the
conspiracy.
6(...continued)
picked up the marihuana and that Garcia and Cesar
were supposed to follow Reyes back to Austin. Ac-
cording to Reyes, however, Cesar had planned to
steal that particular load and instructed Antonio to
“lose” Garcia and Cesar. Reyes testified that Cesar
further instructed him to take the load to an apart-
ment in Austin, where a guy named Macabee
Memmen lived; Macabee corroborated this account.

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6
D.
Defendants complain that the evidence ob-
viously shows that neither Hector nor Cesar
was involved in the conspiracy throughout the
time alleged in the indictment, or on or about
January 1, 2001 until on or about October 14,
2002. “[A]n allegation as to the time of the of-
fense is not an essential element of the offense
charged in the indictment,” and, within reason-
able limits, the offense need only occur before
the return of the indictment and within the stat-
ute of limitations. Russell v. United States, 429
F.2d 237, 238 (5th Cir. 1970) (per curiam).
Moreover, the “prosecution, as a consequence
of the use of the ‘on or about’ designation, was
not required to prove the exact date; it suffices
if a date reasonably near is established.” United
States v. Grapp, 653 F.2d 189, 195 (5th Cir.
Unit A Aug. 1981). Therefore, that defendants
may not have been involved in the conspiracy
throughout its existence does not undermine the
jury’s decision that during the time that each of
them was plainly involved, 1000 kilograms or
more of marihuana was transported.
III.
Defendants challenge the sufficiency of the
evidence as to their aiding and abetting convic-
tions. “To prove aiding and abetting of a crim-
inal venture, the government must show that
the defendant ‘(1) associated with the criminal
enterprise; (2) participated in the venture; [and]
(3) sought by his action to make the venture
succeed.’” Norman, 415 F.3d at 471 (quoting
United States v. Tenorio, 360 F.3d 491, 495
(5th Cir.), cert. denied, 542 U.S. 930, and cert.
denied, 542 U.S. 930 (2004)).7
A.
There was ample evidence supporting a
guilty verdict on the count charging Hector’s
aiding and abetting Javier Cardenas’ posses-
sion with intent to distribute (Count Two).
Javier, driving Hector’s truck, was arrested on
June 13, 2001, with 210.5 pounds of marihua-
na. The evidence recounted above could be
rationally construed as showing that Hector
voluntarily lent his truck to Javier for the pur-
pose that Javier transport the marihuana and
that Hector thus voluntarily associated with,
participated in, and “sought by his action” of
lending the truck to make the distribution ven-
ture succeed.
B.
The evidence was sufficient to support a
guilty verdict on the count charging Cesar’s
aiding and abetting Garcia’s possession with
intent to distribute (Count Four). On October
16, 2001, Garcia was arrested after the police
discovered 236 pounds of marihuana at his
house on Cora Lane. The jury could have ra-
tionally construed the following testimony as
demonstrating that Cesar aided and abetted
Garcia’s possession with intent to distribute.
First, Reyes’s testimony about the load he
ran for Cesar in December 2001 supports a ra-
tional inference that Cesar was still involved in
the conspiracy in October 2001, at the time of
the seizure. Moreover, Garcia testified that,
although his house was not generally utilized
for the transportation scheme following the
June 13 bust, it was being used on this partic-
ular occasion. He explained that the Com-
stock location that they had been using became
suspicious after Reyes “lost” a load he had 7 To convict of possession of marihuana with
intent to distribute, the government must prove
(1) possession, (2) knowledge, and (3) intent to dis-
tribute. United States v. Cartwright, 6 F.3d 294,
299 (5th Cir. 1993). Intent to distribute may be in-
(continued...)
7(...continued)
ferred from the large quantity of drugs involved.
Id.

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7
picked up there (the load that Cesar actually
stole) and that they had to go back to using his
trailer. Garcia’s testimony supports a rational
inference that the load seized from his house on
October 16, 2001, was part of the conspiracy in
which Cesar took part.
Therefore, the jury could have rationally in-
ferred that the load seized from Garcia’s house
was part of the criminal venture of which Cesar
was a participant and that Cesar sought to
make the venture succeed by aiding with the
distribution of the marihuana: by lending his
truck for the marijuana to be transported, by
recruiting drivers for the distribution, and/or by
allowing the marihuana to be stored at his
house in Austin. That is, the jury could have
rationally inferred that the load found at Gar-
cia’s house was meant to be transported (from
the quantity of the drugs seized and the circum-
stances of the conspiracy) and that Cesar facili-
tated the transportation/distribution part of the
venture. As we have noted repeatedly, the type
of evidence that supports a conspiracy convic-
tion typically supports an aiding and abetting
conviction. United States v. Casilla, 20 F.3d
600, 603 (5th Cir. 1994).
C.
Count Five involved the arrest of Antonio
Reyes on December 2, 2001; the evidence pre-
viously recounted emphatically supports a con-
viction on this aiding and abetting count. Reyes
testified that he was picking up a load for
Cesar, in a vehicle Cesar had provided, when he
was arrested with 256 pounds of marihuana.
Reyes’s testimony supports a rational inference
that this load was a part of the same criminal
venture and that Cesar sought to make the ven-
ture succeed by providing a vehicle with which
to transport the marihuana.
IV.
Defendants’ argument that the district court
erred in denying the motion for severance is
without merit. We review a denial of sever-
ance for abuse of discretion. United States v.
Ramirezza, 78 F.3d 179, 184 (5th Cir. 1996).
Rule 8(b) of the Federal Rules of Criminal
Procedure allows for joinder of defendants in
a single indictment “if they are alleged to have
participated . . . in the same series of acts or
transactions constituting an offense or offens-
es.” As a general rule, “persons indicted to-
gether should be tried together, especially in
conspiracy cases.” United States v. Pofahl,
990 F.2d 1456, 1483 (5th Cir. 1993). Federal
Rule of Criminal Procedure 14 allows, how-
ever, severance of properly joined defendants
on a showing of prejudice to a defendant or
the government.
To show that the denial of severance was
an abuse of discretion, the defendant must de-
monstrate that “(1) the joint trial prejudiced
him to such an extent that the district court
could not provide adequate protection; and
(2) the prejudice outweighed the government’s
interest in economyof judicial administration.”
United States v. Richards, 204 F.3d 177, 193
(5th Cir. 2000) (internal quotations and cita-
tions omitted).
Neither Hector nor Cesar has shown preju-
dice. They argue that the trial was complex
and that the acquittal of two of the codefen-
dants, based on largely the same evidence pre-
sented against Hector and Cesar, shows that
the jury was confused by the evidence.8 First,
8 Hector’s motion was not timely under Federal
Rule of Criminal Procedure 12 because he did not
make it pre-trial. The district court still considered
the motion, though, along with Cesar’s timely
(continued...)

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8
a “general description of the complexity of a
trial is not sufficient to show the ‘specific and
compelling prejudice’ necessary for reversal of
the denial of a motion to sever.” Id. More-
over, a review of the trial transcripts reveals
that the bulk of the testimony related to Hec-
tor’s and Cesar’s participation and leadership
roles in the conspiracy, so it is unlikely that the
jury could have been confused about the two
brothers’ identities or actions. If anything, the
fact that the jury acquitted two of the codefen-
dants and found Hector not guilty on the two
cocaine charges shows that it was able to parse
the evidence and consider it separately for each
defendant and each count.9
Finally, the district court gave the jury a cau-
tionary instruction to consider the evidence
against each defendant separately.10 Defen-
dants’ severance argument is completely with-
out merit.
V.
Although the appellants frame their third is-
sue as alleged Booker error,11 they seem to be
complaining, at least in part, that the district
court’s leadership adjustment and relevant
conduct determination—specifically the esti-
mation of the amount of marihuana involved
and the inclusion of cocaine—was unsupport-
ed by the evidence.12 This court reviews a dis-
trict court’s factual findings for clear error.13
We “will deem the district court’s factual find-
ings clearly erroneous only if, based on the
entire evidence, [the court is] left with the
definite and firm conviction that a mistake has
been committed.” Cabrera, 288 F.3d at 168
(internal citations and quotations omitted).
“A factual finding is not clearly erroneous
if it is plausible in light of the record read as a
whole.” Villanueva, 408 F.3d at 203 n.9. A
district court “may adopt the facts contained in
a [presentence report (“PSR”)] without further
inquiry if those facts have an adequate eviden-
tiary basis with sufficient indicia of reliability
and the defendant does not present rebuttal ev-
idence or otherwise demonstrate that the in-
formation in the PSR is unreliable.” Cabrera,
288 F.3d at 173–74. “The defendant bears the
burden of showing that the information in the
PSR relied on by the district court is materially
untrue.” United States v. Valencia, 44 F.3d
8(...continued)
motion.
9 United States v. Ellender, 947 F.2d 748, 755
(5th Cir. 1991) (“[A]cquittals as to some defendants
on some counts support an inference that the jury
sorted through the evidence and considered each
defendant and each count separately.”).
10 United States v. Hogan, 763 F.2d 697, 705
(5th Cir. 1985) (“Appropriate cautionary instruc-
tions can decrease the possibility that the jury will
improperly transfer proof of guilt from one defen-
dant to another.”).
11 See United States v. Booker, 543 U.S. 220
(2005).
12 See Appellants’ Brief at 46–48 (“Hector and
Cesar submit that there was not even a preponder-
ance of the evidence to add the cocaine amounts to
their sentences since the jury acquitted Hector on
all counts regarding cocaine, and Cesar was never
charged with any cocaine . . . . Moreover, there
was not ever a preponderance of the evidence that
Hector or Cesar Valdez were leaders in the conspir-
acy.”).
13 United States v. Cabrera, 288 F.3d 163, 168
(5th Cir. 2002); see also United States v. Villanue-
va, 408 F.3d 193, 203 n.9 (5th Cir.) (“Post-Book-
er, we continue to apply the same standard of
review to claims of erroneous fact-finding . . . .”),
cert. denied, 126 S. Ct. 268 (2005).

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9
269, 274 (5th Cir. 1995).
A.
Hector and Cesar argue that the evidence
does not support the four-level adjustment for
their alleged leadership roles in the organiza-
tion. Section 3B1.1(a) of the United States
Sentencing Guidelines authorizes this adjust-
ment if the “defendant was an organizer or
leader of a criminal activity that involved five or
more participants or was otherwise extensive.”
In making the leadership determination, the
court should consider such factors as the
“exercise of decision making authority, the
nature of participation in the commission of the
offense, the recruitment of accomplices, the
claimed right to a larger share of the fruits of
the crime, the degree of participation in plan-
ning or organizing the offense, the nature and
scope of the illegal activity, and the degree of
control and authority exercised over others.”
U.S.S.G. § 3B1.1 cmt. n.4 (2003). “The dis-
trict court may find that a defendant exercised
a leader/organizer role by inference from the
available facts.” Cabrera, 288 F.3d at 174.
The district court, after reviewing the trial
transcripts, adopted the factual findings in the
PSR, which indicated that Hector received a
greater amount of the profits, made technical
decisions about concealing the drugs, and
planned the route to be taken by the drivers.
Although Hector objected at the sentencing
hearing that the trial evidence supports, at
most, a three-level adjustment for his role as a
manager, Ramirez’s and Garcia’s testimonydis-
cussed above provides an adequate evidentiary
basis for the PSR’s findings.14
Based on this evidence, the district court
could have inferred that Hector exercised de-
cision-making authority and participated in or-
ganizing the offense to such a degree that he
was a leader rather than a manager. The fact
that Ramirez was also probably a leader (be-
cause he also received a larger share of the
profits, he recruited Hector, and he dealt with
the Mexican suppliers) does not undermine the
finding that Hector was a leader: A conspiracy
can have more than one leader. Morphew v.
United States, 909 F.2d 1143 (8th Cir.
1990).15
B.
In making the leadership determination as
to Cesar, the court adopted the factual findings
in the PSR, which stated that Cesar “made ar-
rangements with the buyers in the United
14 Specifically, Ramirez testified that he, Hector,
and Garcia would sometimes split the money for
each load three ways but that Garcia would get paid
(continued...)
14(...continued)
less when he was just storing the marihuana at his
house instead of transporting it to Dallas. Ramirez
testified that, unlike Garcia, Hector would get paid
the same regardless of whether he accompanied the
drivers when they transported drugs to Dallas.
Moreover, Garcia testified that “we” (seemingly
including Hector) would conceal the drugs in
Hector’s truck under a board, brown paper, fences,
and pipes to make it look like a farm truck, from
which the court could have rationally inferred that
Hector was involved in the decision-making of how
drugs would be concealed in his truck. Further-
more, Ramirez and Garcia testified that Hector
devised the plan for the drivers to leave at 5:30
a.m. by a particular route so as to minimize the
chance of being stopped by the Border Patrol.
15 See also United States v. Yeager, 331 F.3d
1216 (11th Cir. 2003) (holding that offense level of
each participant in conspiracy of two persons could
be enhanced for a leadership role if both exercised
authority and control over distinct portion of
criminal activity).

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10
States,” “organize[d] the transportation of
drugs to Austin,” and hired drivers. Although
Cesar objected that, at most, he introduced
some drivers to Ramirez and Garcia, the tes-
timony at trial provides an adequate evidentiary
basis for the facts alleged in the PSR.16 Based
on all the evidence, the court did not clearly err
by adopting the findings in the PSR that Cesar
was a leader, so a four-level adjustment was
appropriate.
C.
Defendants complain of the district court’s
inclusion of cocaine in their relevant conduct
determinations. Specifically, adopting the find-
ings in the PSR, the court attributed 80 kilo-
grams of cocaine to both Hector and Cesar.
The guidelines assign a base offense level of 36
for quantities of marihuana between 10,000 and
30,000 kilograms, id. § 2D1.1(2); with the
four-level leadership adjustment, each defen-
dant had an offense level of 40, for which the
guidelines authorize a sentence of 292 to 365
months.17
Without the inclusion of cocaine, Hector
was attributed with 2,370 kilograms of mari-
huana, which would yield a base offense level
of 32. Id. § 2D1.1(4) (assigning an offense
level of 32 for at least 1000 but less than 3000
kilograms of marihuana). With the four-level
leadership adjustment, the offense level is 36,
for which the guidelines authorize a sentence
of 188 to 235 months. Cesar, who was attrib-
uted with 3509 kilograms of marihuana, would
have a base offense level of 34 and a total
offense level, with the leadership adjustment,
of 38, for which the guidelines authorize a
sentence of 235 to 293 months. Each defen-
dant was sentenced to 360 months, which
would have been well outside the guideline
range, had the district court excluded the
cocaine from the relevant conduct determina-
tion.
Hector’s argument that the cocaine cannot
be included in his relevant conduct because the
jury acquitted him of the cocaine charges is
meritless. “A jury’s verdict of acquittal does
not prevent the sentencing court from consid-
ering conduct underlying the acquitted charge,
so long as that conduct has been proved by a
16 Ramirez and Garcia testified that, after Hector
withdrew from the organization, Cesar took over his
brother’s role and share of the profits and began to
recruit drivers for the operation. There was also
evidence that Cesar made arrangements to pay the
drivers he recruited. Antonio Reyes testified that
Cesar recruited him to drive a few loads and offered
to pay him $8,000 for one of the loads. Memmen
similarly testified that Cesar recruited him to store
loads at his apartment on occasion and attempted to
recruit him to pick up a load from Comstock; Cesar
would pay Macabee with marihuana for personal
use.
Furthermore, according to Reyes, Cesar organ-
ized the theft of one load from the suppliers in
Mexico; Italo White testified that Cesar recruited
him to falsify a document for this endeavor to show
that the load had been seized by police. Moreover,
Cesar provided his truck for transporting loads of
marihuana, and the loads would often be repackaged
at his home in Austin before being transported
north. Cesar would also occasionally follow the
drivers when they transported the drugs to Dallas.
17 Under the guidelines, the cocaine is converted
into an equivalent quantity of marihuana: One
gram of cocaine is equivalent to 200 grams of
marihuana; thus, 80 kilograms of cocaine is equiv-
alent to 16,000 kilograms of marihuana. U.S.S.G.
§ 2D1.1 cmt. n.10.

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11
preponderance of the evidence.”18 There was
easily a preponderance of the evidence to
support the inclusion of cocaine in the relevant
conduct determination for Hector. Notably,
when Javier Cardenas was busted on June 13,
2001 driving Hector’s vehicle, the police seized
60 kilograms of cocaine along with the mari-
huana. Moreover, Ramirez testified that he and
Hector ran a 20-kilogram load of cocaine
before the June 13 bust.
D.
The inclusion of cocaine in Cesar’s relevant
conduct is more problematic. Although the
government’s failure to charge Cesar with a co-
caine offense does not prevent the district court
from including cocaine in his relevant conduct,
the finding must still be supported by a prepon-
derance of the evidence.19
According to the evidence produced at trial,
cocaine was only transported on June 13, 2001
and once before that. If Cesar did not join the
conspiracy until after the June 13 bust, the dis-
trict court could not attribute the cocaine quan-
tities to him.20 The court concluded, however,
that Cesar entered the conspiracy from its in-
ception and that the cocaine could be attrib-
uted to him.
The testimonywas somewhat ambiguous as
to whether Cesar was involved in the conspir-
acy from its inception. We do not decide that
question for the purpose of this issue, because
even if the court did not clearly err by finding
that Cesar joined the conspiracy at its incep-
tion, the sentencing guidelines would allow the
district court to include the cocaine in Cesar’s
relevant conduct only if it was a “reasonably
foreseeable act[] . . . of others in furtherance
of the jointly undertaken criminal activity.”21
Cocaine was transported twice during the
conspiracy. Ramirez stated that he and Hector
“did a load” of cocaine, weighing 20 kilo-
grams, before the June 13 bust. Sixty kilo-
grams of cocaine was seized in the bust, but it
was concealed in the bale of marihuana and
was not discovered until the crime lab cut the
bale open. The remainder of the testimony re-
garding the drug conspiracy describes it as a
marihuana transportation scheme. Although
the government attempts to describe the con-
spiracy as a “drug transportation” conspiracy,
which would make the cocaine foreseeable,
this begs the question of foreseeability, trans-
forming the inquiry into the nearly identical in-
quiry of whether this was a marihuana trans-
18 United States v. Cathey, 259 F.3d 365, 368
(5th Cir. 2001) (quoting United States v. Watts, 519
U.S. 148, 157 (1997)).
19 United States v. Partida, 385 F.3d 546, 566
(5th Cir. 2004) (“Due to a standard of proof at sen-
tencing lower than the proof necessary to convict at
trial, the scope of a sentencing court’s fact finding
is not limited to considering only the conduct of
which the defendant was formally charged or con-
victed.”), cert. denied, 544 U.S. 911 (2005).
20 U.S.S.G. § 1B1.3 cmt. n.2 (“A defendant’s
relevant conduct does not include the conduct of
members of a conspiracy prior to the defendant
joining the conspiracy, even if the defendant knows
(continued...)
20(...continued)
of that conduct.”).
21 U.S.S.G. § 1B1.3(a)(1)(B). Although the
“reasonably foreseeable” requirement does not ap-
ply to conduct in which the defendant was person-
ally involved or which the defendant aided and
abetted, the trial testimony does not support an in-
ference that Cesar was personally involved in, or
aided and abetted, the two cocaine distributions at
issue.

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12
portation conspiracy or a drug transportation
conspiracy.
Arguably, these two loads of cocaine, at
least one of which was hidden inside a bale of
marihuana, would not be reasonably foreseeable
to a member of the conspiracy who, according
to the trial testimony, dealt only with mari-
huana. That is, there is no evidence that Cesar
had a “leadership” role in the conspiracy before
June 13, so there is no indication that he had
knowledge of everything that was transported.
Given the isolated and secretive nature of the
two cocaine transports, the cocaine could be
reasonably foreseeable to Cesar only if his mere
involvement in the conspiracy automatically
makes the transportation of any drugs reason-
ably foreseeable to him. But “the reasonable
foreseeability of all drug sales does not auto-
matically follow from membership in the con-
spiracy.” United States v. Wilson, 116 F.3d
1066, 1077 (5th Cir.), vacated in part on other
grounds sub nom. United States v. Brown, 123
F.3d 213 (5th Cir. 1997) (en banc). Because
the evidence does not support an inference that
the cocaine was reasonably foreseeable to Ce-
sar, we vacate his sentence and remand for
resentencing.
E.
Defendants contest the adoption of the
PSR’s findings with respect to the total quantity
of marihuana attributable to them. The mar-
ihuana calculation only affects Cesar, how-
ever.22 The PSR states that he was responsible
for 3509 kilograms of marihuana.23 This
amount is unquestionably supported by the
evidence, with two exceptions that reduce the
quantity found by about 23 kilograms, so it
would not affect the base offense level.24
The evidence also supports the estimation
following the June 13, 2001, bust (i.e. eight
loads at 100 kilograms). Trial testimony indi-
cated that ten loads, weighing 100 to 200 kilo-
grams each, were transported following the
bust, and this estimate seemed to include the
two loads actually seized in October and the
one load seized in December. Because the
PSR’s count would yield eleven loads (eight
plus three), it appears that one load was dou-
ble counted. But, the discrepancy from the
double counting of a load (at most 111.7 kilo-
grams) would not affect the base offense level,
because the total marihuana would still exceed
22 Because of the amount of cocaine found in
Hector’s car during the June 13, 2001, bust (60
kilograms), Hector will have a base offense level of
36 regardless of the amount of marihuana attributed
to him.
23 The PSR calculates the total based on the
following estimates: (1) Between January and June
2001, 2275 kilograms of marihuana was stored at
Garcia’s house; (2) on June 13, 2001, 95 kilograms
of marihuana was seized from Javier Cardenas’s
truck; (3) between June 14, 2001, and December
2001, eight loads of marihuana weighing 100 kilo-
grams each (800 kilograms) were transported;
(4) on October 4, 2001, 109 kilograms of mari-
huana was seized from a vehicle containing Ramir-
ez’s belongings; (5) on October 16, 2001, 107 kilo-
grams of marihuana was seized from Garcia’s
home; (6) on December 2, 2001, Reyes was ar-
rested with 111.7 kilograms; and (7) on October
14, 2002, 17.9 kilograms was seized from Michelle
Diaz and Vanessa Ruiz.
24 First, the quantity reported for the seizure on
December 2, 2001, from Reyes’s vehicle (111.7
kilograms), is lighter than the amount to which the
witnesses testified, which was closer to 116 kilo-
grams. Second, the government presented no evi-
dence regarding a transaction on October 2002
(17.9 kilograms).

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13
3000 kilograms.25 Moreover, the estimate
adopted by the district court as to the quantity
transported after the June bust was actually
lighter than that supported by the evidence (be-
cause each load after the bust was reported to
weigh as much as 200 kilograms).
With respect to the quantity of marihuana
transported from January to June 2001, the
finding that Cesar joined the conspiracy since
its inception is not clearly erroneous.26 There
fore, the marihuana transported during that
period is attributable to Cesar, who also chal-
lenges the reliability of the estimate for this
time frame because of the inconsistency among
the witnesses’ estimations, and between those
estimations and the marihuana actually
seized.27
Thus, the question is whether the PSR’s
estimation that 2275 kilograms was transport-
ed from January to June 2001 has an adequate
evidentiary basis with sufficient indicia of reli-
ability. United States v. Alford, 142 F.3d 825,
832 (5th Cir. 1998). A “district court may
consider ‘estimates of the quantity of drugs for
sentencing purposes.’” Id. The court may
extrapolate the quantity from “any information
that has ‘sufficient indicia of reliability to
support its probable accuracy,’ including a
probation officer’s testimony, a policeman’s
approximation of unrecovered drugs, and even
hearsay.” Id. (quoting United States v. Huskey,
137 F.3d 283, 291 (5th Cir. 1998) (citing
U.S.S.G. § 6A1.3 cmt.)).
Although the witnesses’ estimations of the
quantity of marihuana per load are somewhat
25 U.S.S.G. § 2D1.1(3) (assigning a base offense
level of 34 for at least 3,000, but less than 10,000,
kilograms of marihuana).
26 Garcia testified that, after the June 13 bust,
“[w]e then approached Hector’s brother Cesar, and
we asked him if he wanted to start, you know, if we
could start using his truck and we would just pay
him what we were paying his brother.” This testi-
mony could be interpreted as suggesting that Cesar
was not previously involved in the conspiracy. Ra-
mirez’s testimony is likewise uncertain as to Cesar’s
involvement in the conspiracy before the June 13
bust. Ramirez testified that, after the bust, Cesar
“took over” his brother’s role. When the prosecutor
asked Ramirez whether Cesar was involved in the
conspiracy before June 13, Ramirez responded that
Cesar “was getting his own thing, too . . . . He was
just getting loads of marihuana, too.”
When the prosecutor asked Ramirez whether he
delivered any loads to Cesar before the June 13
bust, he testified that “we dropped about 20 pounds,
15 pounds” on the way to Dallas. Although the
testimony is less than pellucid, the district court,
hearing the evidence firsthand, could have rationally
interpreted this testimony to mean that Cesar was
involved in a more minimal role before June 13 but
became a leader after that. Specifically, the testi-
mony could mean that Cesar was receiving loads of
marihuana on occasion from the other conspirators
before the bust but did not begin recruiting drivers
(continued...)
26(...continued)
and participating in the organization of the scheme
until after the bust.
27 Ramirez testified that, between January and
June 2001, ten loads of marihuana were trans-
ported, each between 400 and 500 pounds (roughly
180 to 227 kilograms). Garcia testified that each
of the ten loads was between 500 and 1000 pounds
(roughly 227 to 450 kilograms). The load seized
on June 13, 2001, contained a much lower quantity
of marihuana—210 pounds (roughly 95 kilo-
grams), but it also contained 132 pounds of co-
caine (roughly 60 kilograms) concealed within the
marihuana; so the total weight of the seizure was
342 pounds (or 155 kilograms).

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14
inconsistent and are not supported by the
amount of drugs seized, the information in the
PSR bore a sufficient indicia of reliability for
the district court to rely on it. The PSR’s esti-
mate of 2275 kilograms seems to be based on
ten loads of marihuana at roughly 227 kilo-
grams a load (or 500 pounds), which would be
consistent with Ramirez’s and Garcia’s testi-
mony (at the high end of Ramirez’s and the low
end of Garcia’s estimates).
VI.
Defendants contend the district court com-
mitted reversible Booker error. They concede
that neither of them made a constitution-based
objection at sentencing, and a review of the rec-
ord further reveals that they objected solely to
the factual findings in the PSR and not to the
fact that the court was making factual findings.
Thus, we review for plain error. United States
v. Mares, 402 F.3d 511, 520 (5th Cir.), cert.
denied, 126 S. Ct. 43 (2005).
“An appellate court may not correct an error
the defendant failed to raise in the district court
unless there is ‘(1) error, (2) that is plain, and
(3) that affects substantial rights.’” Id. (quoting
United States v. Cotton, 535 U.S. 625, 631
(2002)). If these conditions are met, the “court
may then exercise its discretion to notice a for-
feited error but only if (4) the error seriously
affects the fairness, integrity, or public reputa-
tion of judicial proceedings.” Id. Because these
sentences were enhanced based on judge-found
facts that were not admitted by the defendants
or found by the jury, there is error that is plain.
Id. at 521.
As in Mares, however, there is no showing
that the error affected substantial rights. De-
fendants have the burden of showing that the
district judge, “sentencing under an advisory
scheme rather than a mandatory one, would
have reached a significantly different result,”
id., and they have not met this burden. The
court made no affirmative statements at sen-
tencing that indicate that it would have
reached a significantly different result under an
advisory scheme.
In fact, the court commented, after defen-
dants’ pleas for mercy, that “I hear you both
asking for mercy because basically this is the
rest of your life in prison . . . . [N]obody has
asked mercy for those people that got hooked
on the drugs that you were moving so that you
could make a living, so that you could live in
a nice house and you could drive a nice car.
What about those folks? Anybody want to ask
mercy for them?” In these circumstances, de-
fendants have not met the standard set forth in
Mares. Although they urge us to discard Mar-
es and use the plain error standard for Booker
error adopted by other circuits, this panel is
bound by Mares.
The judgments of conviction are
AFFIRMED. The sentence of Hector Valdez
is AFFIRMED. The sentence of Cesar Valdez
is VACATED and REMANDED for
resentencing.

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