IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-40207

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

ZERRICK EDWARD WALKER, also known as Roscoe; KODY DWAYNE 

ARDOIN, 

 Defendants - Appellants

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

Consolidated w/ 17-41016

UNITED STATES OF AMERICA,

 Plaintiff - Appellee

v.

KRISTOPHER GEORGE ARDOIN, also known as Football,

 Defendant - Appellant

Appeals from the United States District Court 

for the Eastern District of Texas

USDC No. 1:15-CR-119-6

USDC No. 1:15-CR-119-2

United States Court of Appeals

Fifth Circuit

FILED

September 28, 2018

Lyle W. Cayce

Clerk

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Before SMITH, CLEMENT, and COSTA, Circuit Judges.

GREGG COSTA, Circuit Judge:*

For about two decades, the home at 1107 Avenue A in Beaumont was the 

headquarters of a family-operated business. Crack cocaine was the product. 

The operation included the mother and father, their five sons, several cousins,

and other family friends. Local police would occasionally make arrests, and 

some family members served time on state charges, but others would quickly 

pick up the slack and continue the operation. Taking a new approach, a federal 

investigation led to a grand jury indictment of thirteen people for conspiring to 

distribute 280 grams or more of crack cocaine between January 2006 and May

2016. Six were also charged with conspiring to possess firearms in furtherance 

of the drug trafficking. 

Three defendants went to trial: two of the sons, Kristopher and Kody 

Ardoin, and one of the cousins, Zerrick Walker. All three faced the drug 

conspiracy charge. Only Kristopher was charged with the firearm conspiracy. 

The jury found them guilty on all counts, attributing 280 grams or more of 

crack to both the drug conspiracy and each defendant individually. The district 

court sentenced Kody to 27 years, Walker to a mandatory minimum of 20 years, 

and Kristopher to concurrent sentences of mandatory life for the drug offense

and 20 years for the firearms conviction. The defendants all challenge the 

sufficiency of the evidence presented at trial, and Kody and Walker challenge 

their sentences.

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

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I.

Each defendant properly moved for a judgment of acquittal, so we review 

the sufficiency of the evidence de novo. United States v. Fuchs, 467 F.3d 889, 

904 (5th Cir. 2006). Challenges to the sufficiency of the evidence are reviewed 

by taking all evidence—including credibility choices and reasonable 

inferences—in the light most favorable to the verdict. United States v. Lewis, 

774 F.3d 837, 841 (5th Cir. 2014).

A.

For the drug convictions, the defendants do not dispute the jury’s finding 

that they joined a conspiracy to traffic crack cocaine. They limit their appeal 

to the jury’s holding them responsible for 280 grams or more. That finding had 

significant effect. It required sentences on the drug counts of at least 10 years 

for Kody, 20 years for Walker who had a prior drug felony, and life for

Kristopher who had two prior drug felonies. 21 U.S.C. § 841(b)(1)(A). Drug 

quantity that results in a mandatory minimum must be proven beyond a 

reasonable doubt. See Alleyne v. United States, 570 U.S. 99, 108 (2013); United 

States v. Daniels, 723 F.3d 562, 570 (5th Cir. 2013). In this circuit, the 

defendant’s liability is limited to the quantity of drugs with which he was 

directly involved or that was reasonably foreseeable to him.1 United States v. 

Haines, 803 F.3d 713, 741–42 (5th Cir. 2015). 

Defendants argue that quantity was not proven because police did not 

seize 280 grams. But the government need not seize the actual amount 

charged to meet its burden. That is especially true here as all parties 

acknowledge that 1107 Avenue A operated as a site of persistent drug 

 

1 Most circuits take this individualized approach, while a few require only that the 

government prove that the whole conspiracy trafficked in the charged quantity. See United 

States v. Stoddard, 892 F.3d 1203, 1220 (D.C. Cir. 2018) (recognizing split). 

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transactions for nearly two decades. Compare that to Daniels, in which the 

evidence was insufficient because the government seized only 1.535 kilograms 

of the 5 kilograms charged and provided no testimony about the quantity sold 

to other customers. 723 F.3d at 571. Testimony can support the verdict if it 

demonstrates that the amount of drugs attributed to the defendant meets the 

statutory threshold. See, e.g., United States v. Wallace, 759 F.3d 486, 492–93 

(5th Cir. 2014); United States v. Hinojosa, 749 F.3d 407, 415 (5th Cir. 2014). 

The jury can find a drug quantity by extrapolating from the testimony. Cf. 

United States v. Valdez, 453 F.3d 252, 267 (5th Cir. 2006) (allowing 

extrapolation when a court acts as the factfinder in assessing drug quantity 

under the Sentencing Guidelines). So, if a witness testifies that he bought a 

gram of crack each week for a year, the jury can do the basic math and conclude 

that the defendant sold about 50 grams. That type of inference goes a long way 

toward supporting these verdicts. 

(1) Evidence about the conspiracy generally. Numerous people in the 

community told police about buying crack at 1107 Avenue A. A constant 

stream of people entered and exited the house, perhaps as many as 15 an hour, 

and the two-block surrounding area received hundreds of disturbance calls. 

Police found crack in the house (among other drugs and paraphernalia) while 

executing four different search warrants, seizing 151.6 grams in the 

investigation. One witness bought crack from each of the defendants between 

20–50 times after he began using in 2013. 

(2) Evidence specific to Kristopher. Police witnessed Kristopher openly 

engaging in hand-to-hand drug sales. Kristopher was present when police 

found crack inside 1107 Avenue A while executing two different warrants. 

After an arrest, Kristopher had to be taken to the hospital because he 

swallowed 10 crack rocks, presumably to hide them. On another occasion, 

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Kristopher tossed away a bag of crack as he attempted to escape police on foot 

after a car wreck; crack was in the wrecked car, too. 

(3) Evidence specific to Kody. Witnesses also observed Kody repeatedly 

engaging in hand-to-hand drug transactions. He was present when police 

found crack during three searches of 1107 Avenue A. When police found crack 

after searching another house a block away, Kody was again at the scene. After 

one arrest, Kody informed an officer that he had hidden crack in his anal 

cavity; when recovered it weighed about 5.5 grams. A customer said he had 

observed Kody with as much as 28 grams of crack cocaine on one occasion. 

Another explained that Kody “rented” his car in exchange for crack cocaine for 

five months, giving him about an ounce a week (about 28.3 grams), an amount 

Kody later told him was worth more than $20,000. This witness noted that he 

sometimes rode with Kody and Walker as they sold drugs from his car. 

(4) Evidence specific to Walker. The quantity question is closer for

Walker because he was in prison for most of the conspiracy’s charged 

timeframe—2006 to 2015. But after a traffic stop of Walker, when police found 

him with two of the scales that are a common tool of drug traffickers, he 

admitted that he had sold crack cocaine in 2006 before going to prison later 

that year. He joked that, both before and after his prison term, even Ray 

Charles could see the drug operation in the house. Walker also admitted that 

he returned to 1107 Avenue A just two weeks after his release and resumed 

selling crack, though he claimed it was for only a week. He said that during 

that week he sold about an eighth-ounce to a quarter-ounce a day (about 3.5–

7 grams per day). Walker was present during two searches when officers found

powder or crack cocaine. Police also found about seven grams of crack during 

a consensual search at the apartment of Walker’s girlfriend, and found more 

during two searches of 1107 Avenue A when Walker was present. 

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The following table conservatively estimates the drug quantity that 

could be attributed to each defendant. It does not include the high-level of foot 

traffic and drug activity at 1107 Avenue A, though as we have explained the 

jury could reasonably extrapolate from that testimony in assessing drug 

quantity. The chart also does not include several times when crack cocaine 

was found but quantity was not determined. It includes only testified drug 

quantities for the defendants who could have reasonably foreseen the drug 

trafficking event, excluding Walker from events during the period of his 

imprisonment and any amount that may have been seized before his release. 

We are not saying these are the full or actual amounts attributable to each 

defendant; the table just demonstrates the ease with which a jury could 

attribute 280 grams or more to each.

Kristopher Kody Walker

Seized & Tested Crack Cocaine 151.6g 151.6g

Kristopher’s 2010 Arrest2 3.9g 3.9g

Kody’s Car Stop 5.5g 5.5g

Broussard’s testimony3 63g 63g 63g

Roberson’s testimony4 255g 255g 255g

Walker’s admissions 24g 24g 24g

Total 503g 503g 342g

 

2 Assuming the size of the crack “rocks” were about the same as the ones found after 

Kody’s arrest. 

3 Assuming 20 sales of one-sixteenth of an ounce—half the weight that counsel 

disputed was typical at oral argument—plus the 28 grams Broussard saw Kody possess.

4 Assuming that Kody (with Walker occasionally delivering) “rented” Roberson’s car 

for 9 weeks, which is about two months. Ignores the unspecified amount of dealing that he

observed.

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The jury reasonably determined that all three defendants were involved 

with at least 280 grams of crack cocaine.

B.

As the district court observed, the evidence was weaker for the gun 

conspiracy charge against Kristopher.5 We have never addressed the elements 

of a conspiracy to possess a firearm in furtherance of a drug trafficking crime. 

18 U.S.C. § 924(o). But as with other conspiracy crimes that lack an overt act 

requirement, the government needed to prove 1) an agreement to commit the 

crime; 2) the defendant’s knowledge of the agreement; and 3) his voluntary 

participation in the agreement. United States v. Vargas-Ocampo, 747 F.3d 

299, 303 (5th Cir. 2014) (en banc); see also United States v. Isnadin, 742 F.3d 

1278, 1307 (11th Cir. 2014) (describing similar elements for 18 U.S.C. § 924(o)).

The easy part for the government was proving that there was a

conspiracy to possess guns in furtherance of the drug dealing. Police found a 

20-gauge shotgun under 1107 Avenue A, the drug operation’s headquarters. 

Next door, where Kristopher’s brother lived, police opened a safe with crack 

and two guns inside. Given the pervasiveness of the drug trafficking at these 

locations where the guns were found, no imagination is needed to deduce that 

the guns were, as they so often are, a tool of the drug trade. So ample evidence 

showed that at least some of the drug dealers also conspired to possess guns as 

protection for their crack business.

The tougher question is whether the evidence allowed the jury to find 

that Kristopher knew about and joined that conspiracy. An agreement to join 

a conspiracy need not, and rarely is, a formal one. United States v. Freeman, 

 

5 Given that we just affirmed the drug conviction that requires a life sentence for 

Kristopher, our decision on the gun charge likely has no practical effect on his sentence. We 

nonetheless still have a duty to consider this challenge to the separate conviction. 

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434 F.3d 369, 376 (5th Cir. 2005). A defendant’s involvement in a conspiracy 

can be inferred from conduct and circumstances. United States v. Grant, 683 

F.3d 639, 643 (5th Cir. 2012). The safe—the most damning evidence of the gun 

conspiracy—was found after Kristopher had already been in jail for months. 

The government emphasizes a jailhouse call in which Kristopher tells the 

woman on the other end to have “Boonie” give her a firearm. Standing alone, 

that discussion is too vague to place Kristopher in the gun conspiracy. But it 

does reveal his general awareness that his associates possessed firearms and

that he had control even over guns he did not possess. Kristopher’s general 

involvement with guns can be tied to the firearms conspiracy based on his

presence at two locations where both drugs and guns or ammunition were 

found. After police responded to a “shots fired” call involving 1107 Avenue A, 

they found Kristopher in possession of crack. Corroborating the call, police 

also found a shotgun under Kristopher’s residence. During a later search of 

the same residence, police found nine-millimeter bullets and a nine-millimeter 

magazine, as well as crack. Kristopher was again present. Where there are 

bullets, it’s fair to infer that a gun is nearby.

Although it is a close call,6 there is just enough tying Kristopher to guns 

and drugs to support the jury’s view that he was part of the conspiracy to 

possess firearms to protect the drugs and cash regularly kept at the 

headquarters of his family’s crack operation. 

 

6 There was a more straightforward path to finding Kristopher liable for a gun offense. 

His involvement in the drug conspiracy made him liable for any foreseeable substantive 

firearm offense that furthered the drug trafficking. See Pinkerton v. United States, 328 U.S. 

640, 647–48 (1946); United States v. Gonzales, 841 F.3d 339, 351–52 (5th Cir. 2016) (finding 

defendant liable under Pinkerton for murder committed to further a drug conspiracy). But 

the government sought to hold Kristopher liable for a separate firearm conspiracy, not for a 

substantive firearm offense. 

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II.

We next address the sentencing issues that Kody and Walker raise.

A.

Kody disputes the 4.88 kilograms of crack cocaine the district court 

attributed to him in calculating his Guidelines range. The sentencing judge’s 

assessment of the drug quantity reasonably foreseeable to a defendant is 

reviewed for clear error. United States v. Alaniz, 726 F.3d 586, 618 (5th Cir. 

2013). 

The Presentence Report attributed 4.92 kilograms of crack cocaine to 

Kody based on witness testimony, traffic stops, officer surveillance, and search 

warrants. With two unremarkable exceptions, the report and the trial 

evidence present identical information. The judge relied on the PSR and 

attributed the slightly smaller amount to Kody.

Kody first argues this sentencing determination is at odds with the jury’s 

attributing exactly 280 grams to him. This ignores the words “or more” in the 

question the jury answered.

He next argues that the judge attributed at least 2.8 kilograms of crack 

cocaine to him based on only “nebulous” officer surveillance operations. But 

the drug quantity derived from surveillance was based on the trial testimony 

of police officers, in particular one officer who saw 10–15 transactions per hour

at 1107 Avenue A during his biweekly observations over five years. This 

testimony was sufficiently reliable to support the court’s drug quantity finding. 

See Valdez, 453 F.3d at 267. We find no error in Kody’s sentence.

B.

Walker contends that the district court improperly used a 2007 state 

drug conviction to enhance his sentence to a 20-year minimum. That 

enhancement is triggered if the district court finds that the defendant 

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committed the current offense after a prior felony drug conviction became final. 

21 U.S.C. § 841(b)(1)(A). Walker argues that the 2007 conviction was part of 

the drug conspiracy charged in this case, so it should not be the basis for the 

enhanced mandatory minimum. Walker did not raise this objection in the trial 

court, so plain error review applies. United States v. Bishop, 603 F.3d 279, 280 

(5th Cir. 2010). 

The district court did not err, even if Walker is correct that the district

court viewed the 2007 conviction as part of the charged federal conspiracy. We 

have held that an earlier conviction arising from the same conspiracy can be 

used to enhance the statutory minimum. United States v. Moody, 564 F.3d 

754, 759 (5th Cir. 2009). Moody noted that the purpose of mandatory 

minimums is to target recidivism, making it more appropriate to focus on the 

degree of criminal activity after a conviction rather than when the conspiracy 

began. Id. The district court correctly applied the enhancement. 

Because Walker was properly sentenced to a statutory minimum of 20

years, we need not reach his objections to the Guidelines calculation as it did 

not impact his sentence.7

AFFIRMED. 

 

7 Walker also raises an ineffective assistance of counsel claim. This is not the rare 

case when ineffective assistance of counsel should be considered on direct appeal. United 

States v. London, 568 F.3d 553, 562 (5th Cir. 2009).

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