* 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this opinion should not be published and is not precedent except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

June 28, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-40908

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

BRIAN MCCUISTON,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Southern District of Texas

No. 2:04-CR-676-2

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

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

Brian McCuiston challenges his conviction for conspiracy

to possess with intent to distribute more than 500 grams of

methamphetamine. The indictment alleged that the conspiracy

began on January 1, 1993, and continued until the time of the

indictment, November 23, 2004. McCuiston argues that a fatal

variance existed between the indictment, which alleged a single
No. 05-40908

-2-

conspiracy, and the proof at trial, which purportedly

established multiple conspiracies. Viewed in the light most

favorable to the Government, McCuiston and his coconspirators

became friends in childhood when they began selling small

amounts of methamphetamine under the supervision of others in

the CC Mob. When the CC Mob collapsed the three friends banded

together and moved to Oregon and then Kansas to escape law

enforcement and to continue to sell methamphetamine. As time

went on the three continued their concerted methamphetamine

distributing to the point where they operated in different

cities. This view of the evidence would not preclude a finding

of a single conspiracy beyond a reasonable doubt. United

States v. Morrow, 177 F.3d 272, 291 (5th Cir. 1999); United

States v. DeVarona, 872 F.2d 114, 118 (5th Cir. 1989). 

McCuiston argues, based on his assertion that there were

multiple conspiracies, that the district court did not have

jurisdiction over a prosecution for his acts as a juvenile.

McCuiston concedes that if that the Government did prove a

single conspiracy, his argument is defeated by United States

v. Tolliver, 61 F.3d 1189, 1196 (5th Cir. 1995), vacated and

remanded on other grounds, 516 U.S. 1105 (1996)(remanded for

further consideration in light of Bailey v. United States, 516

U.S. 137 (1995))
No. 05-40908

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McCuiston argues that the district court should have

instructed the jury that they could not consider those acts

when determining guilt. McCuiston concedes that he did not

raise this issue in the district court and that it may be

reviewed only for plain error. As McCuiston also concedes that

the circuits are split on whether a jury may consider juvenile

conduct when assessing guilt for a conspiracy that was ratified

after the age of majority, it is not plain that a failure to

instruct the jury as now suggested by McCuiston is error. See

United States v. Olano, 507 U.S. 725, 731-37 (1993). 

McCuiston argues that the district court erred by allowing

testimony regarding his gang, CC Mob, affiliation. He argues

that the gang evidence was extrinsic to his offense and that

the evidence should have been excluded under FED. R. EVID.

404(b), as it was irrelevant to any issue other than character

and its prejudicial impact substantially outweighed any

probative nature. This court reviews the district court’s

admission of testimony for an abuse of discretion. United

States v. Clements, 73 F.3d 1330, 1334 (5th Cir. 1996).

“Evidence that is inextricably intertwined with the evidence

used to prove a crime charged is not extrinsic evidence under

Rule 404(b). Such evidence is considered intrinsic and is

admissible so that the jury may evaluate all the circumstances
No. 05-40908

-4-

under which the defendant acted.” United States v. Royal, 972

F.2d 643, 647 (5th Cir. 1992)(citation and quotation omitted).

That McCuiston and his coconspirators were all initiated into

the business of selling methamphetamine and other drugs at ages

as early as 12 as part of the CC Mob is part of the

relationship formed between these three men and would help the

jury to determine the nature of that bond. The evidence was

intrinsic to showing that McCuiston, Daniel, and Mott were

involved in the same conspiracy that spanned so many years and

endured under changing conditions. United States v. Stovall,

825 F.2d 817, 825 (5th Cir.), amended, 833 F.2d 526 (1987).

Additionally, the district court gave the jury a limiting

instruction regarding the gang evidence. The jury was

instructed that it could not consider the gang evidence as

evidence of guilt generally and could consider it only to

determine whether McCuiston participated in the conspiracy.

Jurors are presumed to follow their instructions. United

States v. Wyly, 193 F.3d 289, 299 (5th Cir. 1999). McCuiston

has not shown that the district court abused its discretion in

admitting the evidence and instructing the jury on how to use

it.

McCuiston argues that the district court erred by using

more than 500 grams of methamphetamine, the amount charged in
No. 05-40908

-5-

the indictment, to calculate his base offense level. After

Booker, the court continues to review the district court’s

interpretation and application of the Guidelines de novo and

its factual determinations for clear error. United States v.

Charon, 442 F.3d 881, 887 (5th Cir. 2006). The district

court’s determination of the amount of methamphetamine relevant

to the conspiracy was based on facts contained in the

presentence report (PSR). On appeal, McCuiston does not assert

that the information in the PSR was materially untrue,

inaccurate, or unreliable. United States v. Huerta, 182 F.3d

361, 364 (5th Cir. 1999). 

McCuiston argues that the district court somehow erred in

sentencing him because the court “did not feel able to treat

the Guidelines as truly advisory.” In this case, the district

court noted that consideration of the factors in 18 U.S.C.

§ 3553 had persuaded the court to impose a sentence that was

44 months below the bottom of the applicable range. Contrary

to McCuiston’s argument, it is plain from the record that the

district court was aware that the Guidelines were advisory

after Booker. The Government has not appealed the sentence and

McCuiston has not shown that the sentence imposed by the

district court was unreasonable. United States v. Mares, 402
No. 05-40908

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F.3d 511, 519 (5th Cir. 2005), cert. denied, 126 S. Ct. 43

(2005). 

AFFIRMED.