* Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 01-21048

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ARMANDO RAMIREZ, JR.; ARMANDO RAMIREZ, SR.,

Defendants-Appellants.

--------------------

Appeals from the United States District Court

for the Southern District of Texas

USDC No. H-01-CR-72-2

--------------------

January 31, 2003

Before BARKSDALE, DEMOSS and BENAVIDES, CIRCUIT JUDGES.

PER CURIAM:*

Armando Ramirez, Jr., and Armando Ramirez, Sr., appeal from

their convictions and sentences for conspiracy to possess with

intent to distribute five kilograms or more of cocaine and aiding

and abetting the possession with intent to distribute five

kilograms or more of cocaine in violation of 21 U.S.C. §§ 841 and

846 and 18 U.S.C. § 2. Both defendants argue that the district

court erred by enhancing their sentences for leadership roles under
2

U.S.S.G. § 3B1.1. We conclude based on the trial testimony and

information in the presentence reports that it was not implausible

that each defendant at some point directed the actions of coconspirator Eloy Garcia and that it was not clearly erroneous for

the district court to apply the enhancements for leadership roles.

See United States v. Cooper, 274 F.3d 230, 247 (5th Cir. 2001);

United States v. Ocana, 204 F.3d 585, 592 & n.7 (5th Cir. 2000);

United States v. Valencia, 44 F.3d 269, 272 (5th Cir. 1995).

The defendants also argue that the district court incorrectly

attributed drug quantities to them. We conclude that, at a

minimum, the evidence and testimony at trial was sufficient to hold

each defendant responsible under relevant conduct for the drug

amounts involved in the June 1999 and January 2000 loads, and

therefore the district court did not clearly err in assigning the

highest base offense level to each defendant. See United States v.

Buchanan, 70 F.3d 818, 829 (5th Cir. 1995); see also U.S.S.G. §§

2D1.1, 1B1.3.

The defendants next argue that the Government engaged in

prosecutorial misconduct during closing arguments by improperly

vouching for the credibility of cooperating witnesses and by

misstating the elements of the offense. The defendants concede

that no objection was made in the district court to the alleged

misconduct, and therefore our review is for plain error. See

United States v. Washington, 44 F.3d 1271, 1278 (5th Cir. 1995);

see also FED. R. CRIM. P. 52(b). We conclude that the defendants
3

have not shown plain error in the prosecutor's comments concerning

the truthfulness of the witnesses or his comments asking the jury

to believe that a telephone conversation involved a discussion of

cocaine. See Washington, 44 F.3d at 1278. They have also not

shown impropriety in the prosecutor's comments allegedly shifting

the burden of proof to them. Moreover, even if the comment was

improper, there is no showing that the comment affected their

substantial rights given that the district court correctly

instructed the jury on burden of proof. See Zafiro v. United

States, 506 U.S. 534, 540 (1993)("'juries are presumed to follow

their instructions'")(citation omitted). Likewise, the defendants

have not shown that the prosecutor misstated the elements of the

offense by failing to stress that the jury had to find a drug

quantity in order to convict. Further, the district court properly

instructed the jury on this element of the offense, and there is no

plain error.

Lastly, the defendants rely on Apprendi v. New Jersey, 530

U.S. 466 (2000), to argue that their sentences were improper

because the district court, rather than the jury, made

determinations under the sentencing guidelines concerning their

leadership roles and the specific drug quantities. The defendants

concede that the district court's determinations did not increase

their sentences beyond the statutory maximum. We have held that

guideline factors that enhance a sentence within the statutory

sentencing range do not implicate Apprendi. See United States v.
4

Keith, 230 F.3d 784, 787 (5th Cir. 2000). We are bound by this

precedent. United States v. Taylor, 933 F.2d 307, 313 (5th Cir.

1991). 

AFFIRMED.