IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-41284

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

ENRIQUE MENDEZ, also known as Kike, also known as Jaiba, also known 

as El Patron; CARLOS JAVIER FLORES, SR.; CARLOS JAVIER FLORES, 

JR., 

 Defendants - Appellants

Appeals from the United States District Court

for the Southern District of Texas

USDC No. 5:12-CR-560-1

Before KING, JOLLY, and PRADO, Circuit Judges.

PER CURIAM:*

The appellants, Enrique Mendez, Carlos Flores, Sr., and Carlos Flores, 

Jr., were convicted of conspiracy to distribute more than five kilograms of 

cocaine. In addition, Mendez was convicted of conspiracy to launder money, 

and three counts of aiding and abetting the transfer of currency from the 

United States to Mexico to promote drug trafficking. Flores Sr. was also 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

April 13, 2016

Lyle W. Cayce

Clerk

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convicted of aiding and abetting possession with intent to distribute five 

kilograms or more of cocaine. 

On appeal, the defendants assert a host of arguments regarding both 

their convictions and their sentences. We find no reversible error, and 

accordingly affirm the district court’s judgment.

I.

This case involves a drug trafficking conspiracy. Cocaine was 

transported from the border city of Laredo, Texas, to Atlanta, Georgia, for 

distribution, and the resulting proceeds were transported from Atlanta back to 

Laredo. A principal was Elbert Figueroa. Figueroa has been involved in the 

drug trafficking business in Mexico for many years. In 2006, Figueroa moved 

to Laredo from Mexico, where he was put in charge of coordinating the delivery 

of cocaine from Laredo to Atlanta, and the return of cash to Mexico. Flores Sr. 

and Flores Jr. were involved on the drug trafficking side of the operation. They 

carried large amounts of cocaine from the nearby town of Zapata, Texas, to 

Laredo for eventual shipment to Atlanta and, as noted, Figueroa moved the 

cocaine on to Atlanta. Mendez, who owned a trucking company, arranged 

transport of the proceeds from Atlanta back to Laredo. Figueroa was arrested 

in 2010 for his involvement in the conspiracy at issue and, as a cooperating 

witness in this case, helped to shatter the operation.

Eduardo Delgadillo was another important figure in this conspiracy. 

Delgadillo worked for Mendez, helping coordinate the transport of proceeds 

from Atlanta to Laredo. According to Delgadillo, he served as the point of 

contact between Figueroa and Mendez. Delgadillo was also arrested in 2010, 

and was also a cooperating witness in the prosecution of the appellants.

Finally, there are two important forms of documentary evidence in this 

case. First, upon arresting Figueroa, law enforcement officers seized a ledger 

documenting cocaine and cash shipments. The ledger includes dates, names 

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(although often trafficking pseudonyms), and the amounts of drugs/cash 

involved in each transfer. Second, law enforcement obtained Title III wire taps 

for both Figueroa’s and Delgadillo’s cell phones. According to the government, 

many of the intercepted calls record the appellants’ discussions of drug activity.

A.

Police began monitoring Figueroa’s phone calls in early 2009. Mendez 

spoke with Figueroa over the phone several times in March 2009, each time 

complaining that he did not receive the cut he was promised. He also 

complained about his trafficking pseudonym, “Kike.” Mendez preferred “La 

Jabia.” On March 25, 2009, Figueroa and Mendez again spoke on the phone 

after approximately $500,000 in drug proceeds was seized. 

In May 2009, Figueroa called Delgadillo to arrange for transport of 

approximately $1 million in drug proceeds from Atlanta to Laredo. Delgadillo 

testified that he, in turn, spoke to Mendez about moving the cash. Mendez 

arranged for the transfer to occur on May 21, 2009, but became nervous when 

he noticed an airplane—actually a Drug Enforcement Agency (“DEA”) spotter 

plane—circling his trucking business on the day of the transaction. 

Nevertheless, Mendez instructed Delgadillo to proceed with the transfer 

attempt. The cash was ultimately seized when local law enforcement pulled 

over the courier. Later that evening, Figueroa spoke with Mendez on the 

phone, and demanded that Mendez obtain some official documentation of the 

seizure so that Figueroa could show his bosses in Mexico what happened to the 

money.

In July 2009, after yet another cash seizure by law enforcement, 

Figueroa demanded to meet with Mendez in person. Mendez and Figueroa met 

at a grocery store in Laredo. Delgadillo was also present. The group travelled 

to a nearby restaurant, where they had a conversation regarding the recent 

uptick in cash seizures. Law enforcement officials surveilled this meeting.

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B.

While coordinating with Mendez regarding the shipments of cash from 

Atlanta to Laredo, Figueroa also had dealings with Flores Sr. and Flores Jr. 

regarding cocaine to be shipped from Zapata to Laredo, and eventually to 

Atlanta. In coordinating these shipments, Figueroa had phone conversations 

with a man he knew only as “Gordo.” Figueroa documented these shipments 

in his ledger. Several government agents testified that, based on their 

familiarity with Flores Sr.’s voice, they believed that “Gordo” was actually 

Flores Sr. Testimony also showed that Flores Sr.’s actions were consistent 

with plans made between Figueroa and “Gordo” on the recorded phone calls.

On May 14, 2009, Figueroa and Gordo held several phone conversations 

during which they arranged for transfer of 100 kilograms of cocaine from 

Zapata to Laredo. Figueroa documented the cocaine shipment in his ledger as 

being attributable to Gordo. On September 13, 2009, Figueroa called Gordo

again, and arranged to meet at a nearby restaurant to exchange another large 

load (over 100 kilograms) of cocaine. Two unidentified men arrived in a small 

white SUV. One of the men accompanied Figueroa to his house, where they 

unloaded the cocaine. The exchange was once again surveilled by law 

enforcement, and is documented in Figueroa’s ledger as being attributable to 

Gordo. When following the white SUV to Figueroa’s home, agents noticed a 

second car following the vehicle, apparently attempting to discern whether the 

load car was being tailed by law enforcement. One of the agents testified that 

he “got a good look” at the second car’s driver, and that it was Flores Sr.

Two weeks later, on September 28, 2009, Gordo called Figueroa and 

arranged another drug exchange, this one to be held in the parking lot of a 

sporting goods store. Figueroa arrived at the store. Soon after, both Flores Sr. 

and Flores Jr. arrived in separate cars. Flores Sr. was in a white Cadillac 

Escalade; Flores Jr. was in a Nissan 350z. Flores Sr. was with his wife, and 

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did not have any direct contact with Figueroa. Instead, Flores Sr. and his wife 

went inside the sporting goods store, while Flores Jr. met with Figueroa in the 

Nissan. Flores Jr. explained to Figueroa how to access the hidden 

compartments in the car. Figueroa took Flores Jr.’s Nissan to his house, where 

he unloaded approximately 10 kilograms of cocaine. Again, this exchange was 

surveilled by law enforcement, and the transaction appeared in Figueroa’s 

ledger as attributable to Gordo.

Flores Sr. and Flores Jr. also were involved in transporting cocaine from 

Zapata, Texas, to Peachtree City, Georgia via airplane.1 Rene Perez, an 

associate of Flores Jr. and Flores Sr., was in charge of smuggling this cocaine. 

He became a cooperating witness. Beginning in April 2009, Perez flew at least 

five loads of cocaine into Peachtree City at Flores Jr.’s and Flores Sr.’s request, 

with the average load being approximately 200 kilograms. 

On August 29, 2009, law enforcement officials in Peachtree City were 

contacted by the Air Marine Operations Center, which notified them that 

Perez’s plane, currently en route from Zapata to Peachtree City, was 

considered a “suspicious flight.” An officer disguised as a courtesy van driver 

picked up Perez and the other passengers at the airport, and noticed that Perez 

was carrying four suitcases. Agents later witnessed Perez give the suitcases 

to another individual, who in turn gave them to an individual driving a green 

Ford Explorer. Officers eventually pulled over the Explorer, and found 173 

kilograms of cocaine in the suitcases. At trial, Perez testified that Flores Jr. 

had given him the suitcases. Perez also testified that, after a previous 

successful flight, he watched Flores Sr. and Flores Jr. load the resulting cash 

proceeds into a hidden compartment in Flores Sr.’s car. Figueroa apparently 

 

1 Peachtree City is approximately 20–30 minutes south of Atlanta.

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had no knowledge of these cocaine trafficking flights; he did not testify about 

them and no entries regarding the shipments appear in his drug ledger.

In December 2011, approximately fourteen months after Figueroa’s 

arrest, Laredo police pulled over Flores Sr. and his wife. The couple were 

travelling in the Nissan 350z that had been used in the cocaine exchange at 

the sporting goods store in September 2009. Flores Sr.’s wife was driving the 

car, and she consented to a search. Officers found a hidden compartment 

behind the passenger’s seat that contained approximately $150,000. Before 

being told of the discovery, Flores Sr. volunteered knowledge of the money and 

the hidden compartment, telling the officers that the money was his and that 

his wife did not know anything.

C.

The three appellants in this appeal, Mendez, Flores Jr., and Flores Sr.,

were indicted in June 2012. All three were charged with conspiracy to 

distribute more than five kilograms of cocaine, in violation of 21 U.S.C. § 841. 

Additionally, Mendez was charged with conspiracy to launder money, and 

three counts of aiding and abetting the transfer of currency from the United 

States to Mexico to promote drug trafficking, in violation of 18 U.S.C. § 1956. 

Flores Sr. was also charged with aiding and abetting possession with intent to 

distribute five kilograms or more of cocaine, in violation of § 841. Finally, 

Mendez was charged with obstruction of justice for threatening a witness.

This case was tried from July 22 to July 30, 2013. The jury returned a 

guilty verdict as to all defendants on all drug-related counts. Mendez, 

however, was acquitted of the obstruction charge. Flores Jr. and Flores Sr. 

moved for a new trial, alleging both newly discovered evidence and the 

government’s failure to disclose exculpatory evidence. The district court 

denied the motion. Mendez was sentenced to 425 months as to the conspiracy 

count and 260 months as to the remaining counts, to run concurrently. Flores 

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Sr. was sentenced to 405 months as to the conspiracy count and the aiding and 

abetting count, to run concurrently. Flores Jr. was sentenced to 405 months 

as to the conspiracy court.

II.

As we have said earlier, the appellants assert myriad and occasionally 

overlapping arguments regarding both their convictions and their sentences. 

We address the appellants’ challenges to their convictions first. We then turn 

to the appellants’ arguments relating to their sentences. 

A.

First, all three appellants argue that the district court erred in allowing 

the government to project their respective photographs simultaneous with 

recordings of intercepted phone calls before the jury. The government 

introduced approximately 100 isolated segments of phone conversations 

between either Figueroa or Delgadillo and the appellants. Most of the 

recordings were in Spanish, and had to be translated for the jury. When 

playing the recorded tapes, the government used a computer program that 

displayed in real time the English translation of the recorded Spanish 

conversation. The computer program also projected photographs of the 

purported speakers for each conversation. According to the defendants, the 

purported speaker’s photograph was highlighted as the tapes played.2 

The photographs were part of a demonstrative aid to assist the jury in 

following along during the foreign language conversations. They are thus 

subject to Fed. R. Evid. 611. See United States v. Ollison, 555 F.3d 152, 162 

(5th Cir. 2009). “[A]llowing the use of . . . pedagogical devices intended to 

 

2 The photographs were apparently taken from the appellants’ drivers licenses. In 

other words, they were not mugshots and did not, on their own, suggest involvement in 

criminal activity. Also, the government denies that the photographs were highlighted at any 

point, and the district court judge noted that, from her point of view, the photographs did not

appear to be highlighted.

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present the government's version of the case is within the bounds of the trial 

court's discretion to control the presentation of evidence. . . . Such 

demonstrative aids typically are permissible to assist the jury in evaluating 

the evidence, provided the jury is forewarned that [they] are not independent 

evidence.” United States v. Taylor, 210 F.3d 311, 315 (5th Cir. 2000) (internal 

quotation marks and footnotes omitted). As an issue within the ambit of Fed. 

R. Evid. 611, the district court’s decision to allow the photographic projection 

system is reviewed for an abuse of discretion. See United States v. Colomb, 419 

F.3d 292, 297 (5th Cir. 2005).

After thorough review, we conclude that the district court did not abuse 

its discretion in allowing the projection of appellants’ photographs when 

playing the recorded phone conversations. Before allowing the government to 

use the projection system at issue, the district court went to great lengths to 

explain to the jury that the photographs were being used merely to help the 

jury follow which individual, under the government’s theory of the case, was 

alleged to be speaking during the wiretap recordings. The district court 

advised the jury that:

You’ll see photographs of the speakers on [the screen containing 

the English language translation], just to help in you being able to 

keep track of who it is [] supposedly talking while the tape is 

playing through. But in the end it’s going to be up to you to 

determine if in fact those are the speakers on this particular call. 

And I’ll say not only this call but all the calls. Those are your 

determinations.

This instruction was not an outlier. On at least three other occasions during 

the trial, the district court cautioned the jury that the identity of the speakers 

was a matter for the jury to determine based solely on admitted evidence and 

testimony. The district court’s final jury instructions also informed the jury 

that “whether the transcript[s] correctly or incorrectly reflect the . . . identity 

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of the speakers, is entirely for you to determine based upon your own 

evaluation of the testimony you have heard.”

The district court explicitly and repeatedly advised the jury that the 

photographs represented only the government’s contention, and nothing more, 

regarding who was speaking on the wiretap recordings; with such clear 

instructions to the jury, we cannot say that the use of the projection system 

amounts to an abuse of discretion. See United States v. Patino-Prado, 533 F.3d 

304, 313 (5th Cir. 2008) (per curiam) (“We will presume that jurors understand 

and follow their instructions, abandoning that presumption only when there is 

an overwhelming probability that the jury will be unable to follow the 

instruction and there is a strong probability that the effect is devastating.” 

(internal quotation marks omitted)).

The defendants attempt to transform this evidentiary issue into a due 

process violation by citing a string of Supreme Court cases regarding “overly 

suggestive” pretrial identification procedures. See, e.g., Manson v. Brathwaite, 

432 U.S. 98 (1977). These cases are, however, irrelevant to the situation here. 

The appellants are not alleging that law enforcement used overly suggestive 

techniques to coerce a witness’s in-court or out-of-court identification of a 

defendant. Instead, the appellants make what is essentially a Fed. R. Evid. 

403 argument, asserting that the photographic projections, although not 

actually evidence, nonetheless served to prejudice the defendants by 

suggesting that it was a settled fact that their voices appeared on the tapes. 

As explained, to the extent that the photographs could have prejudiced the 

appellants, the district court’s detailed and repeated limiting instructions were 

a sufficient safeguard. Accordingly, we hold that the district court did not 

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abuse its discretion in allowing the projection of the defendants’ photographs 

as part of a demonstrative aid.3

In a related argument, Flores Sr. asserts that the district court erred in 

allowing several law enforcement witnesses to identify his voice on the 

recorded conversations. This argument is without merit. These government 

witnesses stated that they had spoken with Flores Sr. in person, were familiar 

with his voice, and could identify it on the recordings. Any further

consideration of misidentity was a matter of weight for the jury, not a question 

of admissibility for the district court. See United States v. Lampton, 158 F.3d 

251, 259 (5th Cir. 1998) (stating that Fed. R. Evid. 901(b)(5) provides that 

“[i]dentification of a voice, whether heard firsthand or through mechanical or 

electronic transmission or recording, [can be testified to] by opinion based upon 

hearing the voice at any time under circumstances connecting it with the 

alleged speaker” (internal quotation marks omitted)).

B.

Mendez alone argues that the district court erred in not granting his 

motion for a mistrial after a government witness suggested that Mendez was 

also involved in another, uncharged drug offense. This court reviews a district 

court’s denial of a motion for mistrial based on prejudicial evidence for an 

abuse of discretion. United States v. Richardson, 781 F.3d 237, 246 (5th Cir. 

2015). Under this standard, “a new trial is required only if there is a significant 

possibility that the prejudicial evidence had a substantial impact upon the jury 

 

3 Although we hold that the district court did not commit reversible error in allowing 

the use of the projection system, we do admonish caution regarding the government’s use of 

such methods. Were it not for the district court’s detailed instructions regarding the role of 

the appellants’ photographs, as well as the significant amount of other evidence connecting 

the defendants to the conspiracy—including surveillance photos, drug ledger entries, 

cooperating witnesses’ testimony, eye-witness testimony from law enforcement, and actual 

seizures of cash and drugs from the defendants’ associates—we could be faced with a more 

difficult question.

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verdict, viewed in light of the entire record.” Id (internal quotation marks 

omitted). 

Mendez’s argument is based on testimony that occurred during the 

government’s redirect of DEA Agent Joe Semidey. On cross examination, 

Mendez’s defense attorney asked several questions regarding Semidey’s 

familiarity with Mendez’s voice. Semidey’s personal knowledge of Mendez’s 

voice having been challenged on cross examination, the government sought 

further foundational testimony regarding how Semidey was familiar with 

Mendez’s voice. This line of questioning led to the alleged prejudicial 

testimony:

Q: Okay. Did you identify Enrique Mendez’[s] voice on some of 

those audios?

A: Yes.

Q: How is it that you are able to identify his voice?

A: Because I have spoken to him before.

Q: How many times—well, when did you speak to him?

A: I spoke to him on September the 1st when we did the 

takedown, and prior to that, I had—back in 2007, I had 

spoken to him once relating [to] a seizure of some marijuana 

that was found in a ranch that belonged to him, that was 

adjacent to his—

Mendez contends that Semidey’s comments regarding the seizure of 

marijuana from his property amount to impermissible testimony of prior bad 

acts under Fed. R. Evid. 404(b). The district court’s prompt remedial action, 

however, cured any possible prejudice. The district court sustained Mendez’s 

objection, refused to admit the testimony for any purpose, and issued the 

following curative instruction:

There was a question that was asked and then an answer 

provided that referenced a seizure of marijuana on a property that 

allegedly belongs to Mr. Mendez. I’m instructing you right now, 

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you’re not to consider that in any way, shape, or form at all. Do not 

consider that. 

Mr. Mendez has not been charged with that act, and I will 

tell you that there was an individual named Mr. Gamez who 

apparently was leasing that property from Mr. Mendez [and] has 

already been convicted for that particular marijuana. 

So out of your minds, you cannot consider that, that has 

nothing to do with this case. Does everybody understand? 

Such a detailed and forceful curative instruction remedied any prejudice 

caused by Agent Semidey’s remark. See Richardson, 781 F.3d at 246, 249 

(“[P]rejudice may be rendered harmless by a curative instruction.”). 

Accordingly, the district court did not err in denying Mendez’s motion for a 

mistrial.

C.

Flores Sr. and Flores Jr. urge that the district court erred in admitting 

evidence regarding the cocaine trafficking flights from Laredo, Texas, to 

Peachtree City, Georgia. Defendants contend that the trafficking flights were 

“extrinsic” to the single cocaine trafficking conspiracy charged in the 

indictment, and that introduction of the evidence essentially violated Fed. R. 

Evid. 404(b). Flores Sr. further argues that evidence regarding the $150,000 

seized during the December 2011 traffic stop is extrinsic to the charged 

conspiracy. 

This court reviews evidentiary rulings for an abuse of discretion; 

furthermore, the harmless error doctrine applies when deciding whether to 

reverse for erroneous admission of extrinsic evidence. See United States v. Liu, 

960 F.2d 449, 452 (5th Cir. 1992). In assessing violations of Rule 404(b), this 

court asks (1) whether the evidence is relevant to an issue other than the 

defendant's character; and, if it is relevant, (2) whether the evidence possesses 

probative value that is not substantially outweighed by the danger of unfair 

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prejudice (i.e., a Rule 403 assessment). See United States v. Beechum, 582 F.2d 

898, 911 (5th Cir. 1978) (en banc). 

With certainty, we can say that the district court did not abuse its 

discretion in admitting the evidence regarding the cocaine trafficking flights. 

As this court has stated numerous times, “[t]he mere entry of a not guilty plea 

in a conspiracy case raises the issue of intent sufficiently to justify the 

admissibility of extrinsic offense evidence.” United States v. Booker, 334 F.3d 

406, 411 (5th Cir. 2003) (internal quotation marks omitted); see also United 

States v. Chavez, 119 F.3d 342, 346 (5th Cir. 1997) (“The admission of extrinsic 

evidence is permissible under Rule 404(b) when a defendant places his intent 

at issue in a drug conspiracy case by pleading not guilty.”).

Furthermore, the evidence was not unfairly prejudicial. The evidence of 

the Atlanta trafficking flights is particularly probative, as it undercuts any 

assertion that the defendants lacked the intent or the means to traffic large 

amounts of cocaine from southern Texas to the Atlanta area. In addition, the 

cocaine trafficking flights were on-going during the period of the charged 

conspiracy; thus, the probative value of evidence relating to the flights is not 

weakened by a lack of temporal proximity to the charged conspiracy. See id.

Similarly, the district court did not abuse its discretion in admitting 

evidence regarding the $150,000 seized during the traffic stop of Flores Sr. and 

his wife. Evidence of the seizure showed that Flores Sr. was aware of the 

hidden compartment in his car, as Flores Sr. volunteered knowledge of the 

money and the hidden compartment before the arresting officers asked about 

it. Furthermore, given Flores’s own admission that he knew of the money and 

the hidden compartment, as well as the significant evidence linking Flores Sr. 

to drug trafficking within the ambit of the charged conspiracy, a jury could 

conclude that the $150,000 was proceeds from the conspiracy, and thus 

intrinsic to the conspiracy at issue.

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Finally, even if we should assume that the district court erred in 

admitting the extrinsic evidence, the error was harmless. Under the harmless 

error doctrine, an evidentiary error is reversible only if it affects a party’s 

substantial rights. United States v. McCann, 613 F.3d 486, 498 (5th Cir. 2010). 

The government has offered ample evidence that Flores Sr. and Flores Jr. were 

involved in the conspiracy alleged; such evidence is wholly independent of the 

two “extrinsic” incidents challenged here. Accordingly, the district court’s 

failure to exclude the extrinsic evidence at issue did not affect the appellants’ 

substantial rights.4

D.

Next, Flores Sr. and Flores Jr. argue that the district court erred in 

denying their post-verdict motion for a new trial. Although both Flores Sr. and 

Flores Jr. joined in the motion, the “new evidence” at issue concerns only Flores 

Sr. “Generally, motions for new trial are disfavored and must be reviewed with 

great caution.” United States v. Piazza, 647 F.3d 559, 565 (5th Cir. 2011). To 

receive a new trial on the basis of newly discovered evidence, a defendant must 

show that: “(1) the evidence is newly discovered and was unknown to the 

defendant at the time of trial; (2) failure to detect the evidence was not due to 

a lack of diligence by the defendant; (3) the evidence is not merely cumulative 

or impeaching; (4) the evidence is material; and (5) the evidence introduced at 

a new trial would probably produce an acquittal.” United States v. Franklin, 

 

4 We also reject the appellants’ argument that the district court erred in not 

instructing the jury regarding the difference between a single conspiracy and multiple 

conspiracies. Flores Jr. and Flores Sr. do not contend that the government failed to offer any

evidence connecting them to the conspiracy charged, and instead argue only that some of the 

evidence offered was extrinsic to the conspiracy at issue. Thus, an instruction regarding 

multiple conspiracies was not required. See United States v. Carbajal, 290 F.3d 277, 291 n.25 

(5th Cir. 2002) (“A multiple conspiracy instruction is required where the indictment charges 

several defendants with one (1) overall conspiracy, but the proof at trial indicates that some 

of the defendants were only involved in separate conspiracies unrelated to the overall 

conspiracy charged in the indictment.” (emphasis added) (internal quotation marks omitted)).

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561 F.3d 398, 405 (5th Cir. 2009). This court reviews a denial of a motion for 

new trial on the basis of newly discovered evidence for an abuse of discretion. 

Id.

First, Flores Sr. points to statements that an apparent co-conspirator, 

Humberto Gonzalez, made when interviewed by Flores Sr.’s investigator after 

trial. According to an affidavit completed by the investigator, Gonzalez, who 

was in prison at the time of the interview, asserted that he was one of the two 

men driving the white SUV that delivered cocaine to Figueroa on September 

13, 2009. After listening to the intercepted recording of “Gordo” and Figueroa 

arranging the transaction, Gonzalez asserted that the voice of Gordo was not 

that of Flores Sr., and instead belonged to a man named “Manitas.” Gonzalez 

further asserted that Manitas, not Flores Sr., hired him to deliver the cocaine. 

Gonzalez changed his story in a later interview, asserting that the voice on the 

tape was not Manitas, and that someone named “Maria” hired him to deliver 

the cocaine. Gonzalez also refused to sign a written affidavit, refused to testify

at any new trial or hearing, and asserted that he would no longer speak about 

his involvement in drug trafficking operations without the presence and advice 

of an attorney. It follows that the district court did not abuse its discretion in

denying the motion for a new trial on the basis of Gonzalez’s oral statements.

Flores Sr. also offers evidence that he argues shows he was at a friend’s 

house all day on September 13, 2009, mourning the death of one of the friend’s 

sons, and thus could not have been involved in the drug transaction that 

occurred that day. Flores Sr. claims that he forgot that he was at the 

gathering, but was reminded when photographs of the event appeared on 

Facebook in October 2014, which is over five years after the supposed event.

In November 2014, during a hearing on civil forfeiture and sentencing, the 

district court heard testimony from Flores Sr.’s friend and her other son. 

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Flores Sr. has not shown how his failure to offer this evidence during 

trial was not a product of a lack of diligence. As the district court noted, Flores 

Sr.’s “new evidence” does not depend on the Facebook photos; Flores Sr. could 

have, at any time, offered the alibi defense that he was at a friend’s house. 

Furthermore, given that so many other friends and family members were also 

at the gathering, it would have taken little in the way of retracing his steps for 

Flores Sr. to be reminded of this event, assuming that Flores Sr. was at the 

gathering for the entire day as he now contends.5 Accordingly, the district 

court did not abuse its discretion in denying Flores Sr.’s motion for a new trial.

Finally, Flores Sr. asserts that the government failed to disclose 

exculpatory evidence. This argument fails, however, for the simple reason that 

he has not identified any exculpatory or impeaching evidence that was 

supposedly withheld. At oral argument, Flores Sr. contended that the 

government withheld Humberto Gonzalez’s involvement in the September 13, 

2009 drug transaction. Flores Sr. asserts that the government had evidence 

suggesting that Gonzalez delivered the cocaine to Figueroa on September 13th. 

The government, however, has never contended that Flores Sr. actually 

delivered the cocaine on that date. Instead, government agents testified that 

Flores Sr. followed an unidentified individual—apparently Gonzalez—in a 

separate car, and served as a lookout for any law enforcement tails. Even if 

Gonzalez were driving the “load” car, this does nothing to exculpate Flores Sr., 

as the government never sought to prove that Flores Sr. actually delivered the 

cocaine on September 13th.

 

5 The district court was skeptical of the testimony regarding Flores Sr.’s presence at 

the gathering, asserting that the family friend and her son had nearly identical accounts of 

Flores Sr.’s presence at the gathering, but could not remember any of the other events from 

that day or week.

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Flores Sr. and Flores Jr. also seize upon one agent’s testimony that, 

while investigating the defendants, law enforcement was also conducting a 

“parallel investigation” of various individuals involved in the conspiracy at 

issue, including the defendants themselves. The defendants now contend posttrial that they are entitled to a review of all files pertaining to the parallel 

investigation to see whether any information within those files could have been 

used to impeach the government witnesses here. As the district court noted, 

defendants are essentially requesting post-trial discovery, not contending that 

the government actually withheld exculpatory or impeaching information. 

Furthermore, Flores Sr. and Flores Jr. have not taken issue with the 

government’s assertion that this “parallel investigation” was merely an 

investigation by another federal agency into the defendants’ drug trafficking 

activities. Accordingly, the district court did not abuse its discretion when 

denying the defendants’ motion for a mistrial based on the withholding of 

exculpatory evidence.

III.

We now turn to the appellants’ challenges to their sentences. Mendez 

brings several sentencing-related arguments, contending primarily that (1) the 

district court erred in imposing a four-level “leadership” enhancement under 

U.S.S.G. § 3B1.1(a); and (2) the district court erred in considering the 

allegations that Mendez threatened a government witness, since he was 

acquitted of that charge. Mendez also makes a vague, unpreserved argument 

regarding the procedural and substantive reasonableness of his sentence.

Flores Sr. and Flores Jr. contend only that the district court erred in 

attributing over 450 kilograms of cocaine to them for the purposes of setting a 

base offense level under the guidelines.

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A.

We first consider Mendez’s argument that the district court erred in 

assessing a four-level “leadership” enhancement. Mendez does not dispute that 

his convictions placed him at a base offense level of 38 under the sentencing 

guidelines, which recommends a sentence ranging from 235–327 months. The 

district court, however, relied upon U.S.S.G. § 3B1.1(a) to impose a four-level 

increase, as the court considered Mendez to be an “organizer or leader” of the 

drug trafficking operation at issue. See U.S.S.G. § 3B1.1(a).

The question of a “leadership” role in a criminal organization is a factual 

determination that is reviewed for clear error. United States v. Valdez, 453 

F.3d 252, 263 (5th Cir. 2006). When making these factual determinations, the 

district court may rely on the information in the Presentence Report (“PSR”) 

“so long as the information has some minimum indicium of reliability.” United 

States v. Shipley, 963 F.2d 56, 59 (5th Cir. 1992) (per curiam) (internal 

quotation marks omitted). The defendant must present rebuttal evidence to 

demonstrate that the information contained in the PSR is “materially untrue, 

inaccurate or unreliable.” United States v. Washington, 480 F.3d 309, 320 (5th 

Cir. 2007) (internal quotation marks omitted). “Mere objections do not suffice 

as competent rebuttal evidence.” United States v. Parker, 133 F.3d 322, 329 

(5th Cir. 1998).

That Mendez was a “leader or organizer” for the purposes of the fourlevel enhancement is demonstrated by evidence that Mendez was the primary 

individual in charge of moving drug proceeds from Atlanta to Laredo. He used 

his trucking company to transport large amounts of cash, and employed at 

least eight drivers in furtherance of this objective. Mendez organized the 

transport of—under the most conservative estimate—at least $2.5 million in 

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drug proceeds,6 and he was entitled to a flat 5% fee. Mendez offers no evidence 

rebutting these findings; instead, he merely contends that he is more 

accurately described as a mere “supervisor” because the most obvious “leader” 

of the drug trafficking operation was Figueroa. There can, however, be more 

than one individual who qualifies as a “leader or organizer.” See United States 

v. Cooper, 274 F.3d 230, 247 (5th Cir. 2001). Accordingly, Mendez’s argument 

that the district court erred in assessing a four-level increase lacks merit.

We also reject Mendez’s argument that the district court erred in 

considering acquitted conduct during sentencing. Mendez contends that the 

district court imposed a two-level enhancement for “obstruction of justice” 

under U.S.S.G. § 3C1.1, and that it was improperly based on the obstruction

charge for which Mendez was acquitted. Mendez’s argument is, however, 

contradicted by the district court’s conclusion at sentencing that Mendez’s total 

offense level was 42. Mendez does not dispute that his base offense level was 

38, and the only enhancement imposed was the four-level enhancement for his 

role as a “leader” in the drug trafficking operation. Thus, the record does not 

support Mendez’s assertion that he was assessed a two-level increase for the 

obstruction charge.7

Finally, we reject Mendez’s unpreserved argument regarding the 

procedural and substantive reasonableness of his sentence. Because Mendez 

failed to object during sentencing, our review is for plain error. United States 

v. Dominguez-Alvarado, 695 F.3d 324, 327 (5th Cir. 2012). This court finds 

 

6 This figure is simply the amount of cash actually seized. Relying on Figueroa’s 

ledgers, the district court found that Mendez was responsible for aiding in the transport of 

over $40 million in drug proceeds.

7 Furthermore, even to the extent that the district court did consider the allegations 

of witness tampering, a district court is not foreclosed from considering acquitted conduct at 

sentencing, so long as the conduct is proven by a preponderance of the evidence. See United 

States v. Watt, 519 U.S. 148, 157 (1997) (per curiam).

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plain error when: (1) there is error; (2) the error is plain; (3) the error affects 

substantial rights; and (4) we may exercise our discretion to remedy the error 

if it seriously affects the fairness, integrity, or public reputation of judicial 

proceedings. See United States v. Cedillo–Narvaez, 761 F.3d 397, 401–02 (5th 

Cir.) cert. denied, 135 S. Ct. 764 (2014); United States v. Mares, 402 F.3d 511, 

520 (5th Cir. 2005). “[W]hen a sentencing judge imposes a properly calculated 

Guidelines sentence, ‘[this court] will give great deference to that sentence.’” 

United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006) (quoting Mares, 402 

F.3d at 520). 

Mendez has failed to show that the district court committed any error, 

much less “plain error.” Mendez does not contend that, absent the four-level 

increase for a “leadership” role, the guidelines range chosen by the district 

court was improperly calculated. Furthermore, contrary to Mendez’s 

assertions, the district court acknowledged its obligation to consider the 

sentencing factors listed in 18 U.S.C. § 3553. There is also nothing in the 

record indicating that the district court failed to appreciate its discretion to 

downwardly depart from the applicable guidelines range if warranted. 

Therefore, Mendez fails to satisfy the first two prongs of plain error review, 

and his sentence is due to be affirmed.

B.

Flores Sr. and Flores Jr. also challenge their sentences, contending that 

the district court erred in attributing over 450 kilograms of cocaine to them 

when setting a base offense level under the guidelines. See U.S.S.G. § 2D1.1 

(stating that an offense involving in excess of 450 kilograms of cocaine has a 

base offense level of 38). The district court’s determination of the quantity of 

drugs used to establish a defendant’s base offense level is a factual finding 

made under the preponderance of the evidence standard and reviewed for clear 

error. United States v. Betancourt, 422 F.3d 240, 247 (5th Cir. 2005).

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The district court did not err in finding that Flores Sr. and Flores Jr. 

were responsible for over 450 kilograms of cocaine, thus in setting a base

offense level of 38. Ample evidence supports the district court’s finding. 

Figueroa testified that his cocaine connection in Zapata was a man named 

“Gordo,” and Figueroa’s drug ledger indicates that he received well over 450 

kilograms from Gordo. Several agents testified that the voice of “Gordo” was 

that of Flores Sr., and further testimony places Flores Sr. at the scene of at 

least two drug exchanges arranged with “Gordo.” Regarding Flores Jr., 

intercepted phone recordings between Figueroa and Flores Jr. indicate that 

Flores Sr. and Flores Jr. worked together closely in their drug trafficking 

business.8 In response, Flores Sr. and Flores Jr. assert only that the district 

court erred in attributing drugs to them that, although arguably were within 

the scope of the conspiracy, were not “reasonably foreseeable” to them

individually. The district court, however, made clear during sentencing that, 

in finding that the defendants were responsible for over 450 kilograms of 

cocaine, it relied only on drug quantities that were directly attributable to the 

defendants’ actions. Thus, the appellants’ argument is meritless.

IV.

Mendez, Flores Sr., and Flores Jr. have failed to show reversible error on 

the part of the district court. Accordingly, the judgment of the district court is

AFFIRMED.

 

8 In addition, there is evidence that both Flores Jr. and Flores Sr. were personally 

involved in shipping approximately 800 kilograms of cocaine from Zapata to Atlanta via a 

series of private plane flights. Even assuming that this evidence is “extrinsic” to the 

conspiracy at issue, the district court is allowed to use “similar transactions” to gauge the 

scope of a defendant’s trafficking operation. See U.S.S.G. § 2D1.1 cmt. n.5.

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