Revised August 17, 1998

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 97-50298

UNITED STATES OF AMERICA,

Plaintiff-Appellee

VERSUS

ALVARO NARVIZ-GUERRA and LARRY AUSTIN GRANT,

Defendants-Appellants.

Appeals from the United States District Court

For the Western District of Texas

July 28, 1998

Before DUHÉ, BENAVIDES, and STEWART, Circuit Judges.

JOHN M. DUHÉ, JR., Circuit Judge:

Defendants A lvaro Narviz-Guerra (“Narviz”) and Larry Grant

(“Grant”) were tried and convicted for possession of marijuana with

the intent to distribute, conspiracy to possess marijuana,

conspiracy to launder monetary instruments, and engaging in a

continuing criminal enterprise. Narviz appeals his conviction

arguing insufficiency of the evidence, lack of verdict unanimity,

improper admission of hearsay, and double jeopardy. Second, he2

appeals his sentence arguing that the p resentence report was

unreliable. Third, he appeals the forfeiture of his truck

c ontending that it was improperly forfeited under 18 U.S.C . §

853(a)(2). Grant appeals his conviction arguing that his right to

a speedy trial was violated, that there was insufficient evidence

to convict him of money laundering, and that the trial court failed

to give a compensated witness instruction. He also appeals his

sentence contending that the amount of marijuana for which he was

held respons ible was not reasonably foreseeable. We vacate

Narviz’s conviction for conspiracy to possess with the in tent to

distribute on the grounds it violates double jeopardy. We affirm

Narvi z’s other convictions and his sentence. We also affirm

Grant’s conviction and sentence.

BACKGROUND

In early 1991, Narviz bought Las Moras Ranch, a 534 acre ranch

which had previously been used to breed cattle and harvest pecans

and was bordered by the Rio Grande and Las Moras Creek. Narviz

made Grant foreman. Within six months, the ranch had deteriorated

significantly, and Narviz was run ning so far behind on payments

that the seller forced Grant off the ranch. Narviz, however,

negotiated a settlement, and Grant returned to the ranch about a

year later.

Narviz and Grant used the ranch to smuggle marijuana from

Mexico into Texas and then moved it from the ranch to distributors3

for shipp ing throughout Texas. In November 1993, Ricardo Perez

(“Perez”), a fugitive who knew Narviz from past traf ficking and

still maintained contacts with American distributors, joined

Narviz’s organization. Perez contacted Narviz after meeting a

pilot flying loads of marijuana to Narviz. They arranged the

marijuana transactions so that Narviz remained unknown to Perez’s

associates. Narviz set up the deliveries by phone from Mexico

while Perez direc ted the receipt, storage, and distribution in

Texas. Over the next year and a half, between 12 and 18 loads of

marijua n a, weighing 200-600 pounds, were delivered to Perez’s

associates.

In June 1995, the Drug Enforcement Agency (“DEA”) searched

Narviz’s ranch which they found in poor condition. The fences and

p ecan trees had deteriorated. The two houses on the ranch were

unlocked; they contained little furniture, had broken windows and

trash strewn about. Moreover, the agents found two bales of

marijuana, marijuana residue, inner tubes, and burlap or fiberglass

bags that had contained marijuana.

In July, the DEA arrested one of Perez’s associates, Tony Hall

(“Hall”), who began cooperating in the investigation. Hall set up

a controlled buy with another associate, Craig Hillis (“Hillis”).

Hillis, too, was arrested and began cooperating. Hillis consented

to a search of his stash house where agents found about 100 pounds

of a 400 pound load that had been deliv ered between August and

October of 1994.4

On September 22, 1995, Perez’s wife contacted Hal l and said

that she wanted approval to put Narviz in touch with Hall. Three

days later, Grant drove Narviz to a Houston restaurant where they

met with Hal l and an undercover agent to discuss the buying and

selling of additional loads. On November 30, Narviz, Hall, and

Grant met again at another restaurant near Houston. As Narviz and

Grant left the restaurant, they were arrested. Narviz was tried

and convicted of conspiracy to possess marijuana with the intent to

distribute, six counts of possession w ith intent to distribute,

conspiracy to launder monetary instruments, and engaging in a

continuing criminal enterprise. He was sentenced to 360 months in

prison. Grant was tried and convicted of conspiracy to possess

marijuana, two counts of possession with intent to distribute and

one count of conspiracy to launder monetary instruments. He was

sentenced to 188 months. Both appeal their conviction and

sentences.

ANALYSIS

A. NARVIZ

1. DOUBLE JEOPARDY

Narviz argues, and the government concedes, that his

conviction on Count One of the indictment must be vacated. Count

One charged Narviz with conspiracy to possess marijuana with the

intent to distribute. Because conspiracy is a lesser included

offense of the continuing criminal enterprise charged in Count5

Three, his conviction on Count One violates double jeopardy. See

Rutledge v. United States

, 517 U.S. 292, 307 (1996); United States

v. Dixon

, 132 F.3d 192, 196 (5th Cir. 1997). Though we vacate

Narviz’s conviction on Count One, we do not remand for

resentencing. Where it is clear that the drug conspiracy

conviction did not lead the district court to impose a harsher

sentence for engaging in a continuing criminal enterprise (“CCE”),

there is no need to remand. U nited S tates v. Dixon , 132 F.3d at

196. Here, Narviz was sentenced to 360 months for Counts One and

Three with the terms to run concurrently; thus, the sentence for

the CCE is no harsher tha n it would have been without the drug

conspiracy conviction.

2. VERDICT UNANIMITY

Because Narviz’s trial counsel did not object to the failure

to give a specific in struction requiring unanimity, this Court

reviews for plain error. United States v. Harris , 104 F.3d 1465,

1471 (5th Cir.), cert. denied , 118 S. Ct. 103 (1997).

Narviz points out that he was charged with laundering monetary

i nstruments under 19 U.S.C. §§ 1956(a)(2)(A) and (h) which

proscribes transporting, transmitting, and transferring a monetary

instrument or funds from or to the United States with the intent to

carry on specified unlawful activity. When the judge instructed

the jury, he told them that the prosecution had to prove beyond a

reasonable doubt that two or more agreed to launder money either by6

sending it from or to the United States. Narviz argues that this

instruction was error because it is unclear whether Narviz was

convicted of laundering money by sending it to or from the United

States. He contends that our holding in United States v. Gipson

,

553 F.2d 453 (5th C ir. 1977) requires a specific unanimity

instruction when a jury could find a defendant guilty on a single

count under multiple theories of liability.

While Narviz accurately summarizes our holding in that case,

Gipson simply does not apply here because Narviz was convicted of

conspiracy and not the actual offense. Rather, we look to our

holding United States v. Dillman

, 15 F.3d 384, 391-92 (5th Cir.

1994) which said that where an indictment alleged conspiracy to

commit several offenses, the district court did not err in giving

a general unanimity instruction. The D illman court explained that

when twelve jurors agree that a defendant agreed to commit a crime,

all jurors do not have to agree about which offense the defendant

personally intended to commit. There need be only one conspiracy

to encomp ass the particular charged offense. I d. at 392. Here,

the facts fall within Dillman ’s reasoning. The judge gave a

general unanimity charge, and the conspiracy to launder money

encompasses moving money both to and from the United States. Thus,

we cannot say that the district court plainly erred in failing to

give a specific unanimity instruction.

3. INSUFFICIENT EVIDENCE7

C ounts Four and Seven allege respectively that on or about

October 1994 and July 20, 1995, Narviz unlawfully an d knowingly

possessed marijuana with intent to distribute. Narviz argues that

the record does not show th at the government proved any of the

specified conduct. He contends that the government produced no

evidence that Narviz possessed any marijuana on those specific

dates. Rather, the government produced witnesses who testified to

the loads that they, as co-conspirators, handled over the years.

This Court r eviews the evidence in the light most favorable

to, and with all reasonable inferences drawn in support of, the

verdict. U nited States v. Thompson , 130 F.3d 676, 688 (5th Cir.

1997). We must affirm Narviz’s conviction under these counts if

any rational trier of fact could have found the essential elements

beyond a reasonable doubt. J ackson v. Virginia

, 443 U.S. 307, 319

(1979).

To convict for possession with intent to distribute, the

government must prove (1) knowing, (2) possession, (3) with intent

t o distribute. U nited States v. Lopez

, 74 F.3d 575, 577 (5th

Cir.)

, c ert. denied 116 S. Ct. 1867 (1996). Possession may be

joint. U nited States v. Skipper

, 74 F.3d 608, 611 (5th Cir. 1996).

A party to a conspiracy may be held responsible for a substantive

offense that a co-conspirator commits in furtherance of the

conspiracy even if the party did not participate in or have any

knowledge of that offense. P inkerton v. United States

, 328 U.S.

640, 647 (1946). Thus, once the conspiracy and the defendant’s8

knowing participation therein is proved beyond a reasonable doubt,

a defendant is guilty of the substantive acts his partners

c ommitted in furtherance of the conspiracy. U nited States v.

Garcia

, 917 F.2d 1370, 1377 (5th Cir. 1990). Here, the evidence is

sufficient under these theories.

DEA agents searched a stash house Craig Hillis used and seized

97 pounds of marijuana from a freezer in the garage. The marijuana

was part of a load that Narviz supplied and had delivered to Hillis

between August and October 1994. Hillis, as a co-conspirator,

continuously possessed the 97 pounds. Thus, Narviz’s conviction on

Count Four stands.

For the same reasons, Narviz’s conviction on Count Seven also

stands. At trial, the government showed that DEA agents searched

another stash house and seized 183 pounds of marijuana on July 20,

1995. On July 14, Tony Hall had received 300 pounds of marijuana

that Narviz had sent thr ough a co-defendant and took it to that

same stash house. We hold, therefore, that the jury had sufficient

evidence to convict Narviz of possessing marijuana on or about July

20, 1995.

4. HEARSAY TESTIMONY

We review a district court’s evidentiary rulings for abuse of

discretion. U nited States v. Parks

, 68 F.3d 860, 867 (5th Cir.

1995), cert. denied , 116 S. Ct. 825 (1996).

The distr ict court permitted three witnesses, Perez, Agent9

Hildreth, and Agent Boyette, to testify over Narviz’s hearsay

objection concluding the testimony fell within the co-conspirator

exception to the hearsay rule. F E D

. R. E VID

. 801(d)(2)(E) states “a

statement is not hearsay if. . . the statement is offered against

a party a nd is. . . a statement by a co-conspirator of a party

during the course and in furtherance of the conspiracy.” For the

Rule to apply, the proponent of the testimony must show: 1) the

conspiracy existed; 2) the statement was made during the course of

and in furtherance of the conspiracy; and 3) the co-conspirator and

the defendant are members of the conspiracy. U nited States v.

Asibor

, 109 F.3d 1023, 1032 (5th Ci r. 1997). The proponent must

estab lish these elements by a preponderance of the evidence.

Bourjaily v. United States

, 483 U.S. 171, 175 (1987). Further, in

the case of a non-testifying con- conspirator, the proponent must

adduce independent evidence of a concert of action in which the

defendant was a participant. Asibor , 109 F.3d at 1033.

a. Perez

Narviz complains Perez made two statements which he argues are

objectionable. First, Perez testified that he was arrested in 1987

with 75 pounds of marijuana that a co-conspirator, Tim McCaskill,

supplied. When the government asked about the origin of the 75

pounds, Perez testified that it had come from Narviz. Second,

Perez testified that he met a pilot who said that he was flying

marijuana f rom Mexico’s interior for Narviz. Narviz argues that1 We do not address this ob jection because the testimony is

admissible under the co-conspirator exception to the hearsay rule.

2 We point out that for the co-consp irator exception to apply,

“same conspiracy” does not have to be the same conspiracy as

charged n the indictment. U nited States v. Arce

, 997 F.2d 1123,

1128 (5th Cir. 1993).

10 the government failed to show that either McCaskill or the pilot

belonged to the same conspiracy as Narviz. Narviz further objected

to Perez’s testimony concerning McCaskill on the grounds that Perez

had no personal knowledge. 1

A court may evaluate the testimony itself to determine whether

the co-conspirator exception to the hearsay rule has been met.

United States v. Burton

, 126 F.3d 666, 671 (5th Cir. 1997). Here,

we look to Perez’s testimony to deter mine if it falls within the

exception. We hold that it does. Perez testified that before his

1987 arrest, he met twice with Narviz in McCaskill’s presence to

buy marijuana McCaskill was holding for Narviz. Thus, McCaskill

and Narviz are members of the same conspi racy 2 and the admitted

statements were made in furtherance of that conspiracy.

As for the pilot, we again examine the testimony itself to

determine whether it was properly admitted. We conclude that the

pilot and Narviz were members of the same conspiracy because the

pilot was flying marijuana for Narviz. Moreover, the pilot’s

statement was made in furtherance of that conspiracy. Thus, the

testimony was admissible under F ED

. R. E VID

. 801(d)(2)(E).

b. Agents Hildreth and Boyette11

DEA Agent Hildreth testified that he got a break in his

investigation when Tony Hall, who was then an informant, received

a call from Perez’s wife asking for help. Narviz argues that the

co-conspirat or exception does not apply because neither Perez’s

wife nor Hall were co-conspirators. Hall, at the time Perez’s wife

telephoned, was a cooperating witness, and Perez’s wife was never

shown to be a member of the conspiracy.

We agree with the government that the testimony is not

hearsay. A statement is hearsay only if it is being offered to

prove the truth of the matter. F E D

. R. E VID

. 801(c). Here, Agent

Hildreth’s testimony was not given to show the truth of what

Perez’s wife said; rather, the purpose of the testimony was to show

why Hildreth resumed his investigation. Thus, the court did not

abuse its discretion in permitting Hildreth to testify.

F inally, Narviz objects to two allegedly hearsay statement s

Agent Boyette made. Boyette testified that he told Grant that

Customs, during a three year investigat ion, had received

information that Narviz was involved in n arcotics smuggling.

Boyette also testified that after arresting and debriefing four

people, investigators were led to Narviz’s ranch. Again, we find

that the district court did not abuse its discretion in admitting

the testimony. The arrest and debriefing statement, like

Hildreth’s testimony, is not hearsay because it is not offered to

prove the truth of the arrests and debriefings. Instead, the

testimony is used to explain why investigators went to Narviz’s3 We do not address whether the testimony was prejudicial because

all issues not briefed are waived. C inel v. Connick

, 15 F.3d 1338,

1345 (5th Cir. 1994).

12 ranch. As for Boyette’s warning to Grant, the testimony was

offered to refute Grant’s implication at trial that he knew nothing

about Narviz’s illegal activities. While Boyette’s testimony may

have been prejudicial 3

, Narviz only argues that the testimony was

inappropriate because it was hearsay. The testimony is not hearsay

because the testimony was offered to show what Grant knew not

whether Customs was actually invest igating Narviz. Again, the

district court did not abuse its discretion in admitting either

Hildreth’s or Boyette’s testimony.

5. UNITED STATES SENTENCING GUIDELINES

This Court reviews the district court’s factual findings as to

the relevant quantity of drugs under the clearly erroneous

standard. U nited States v. Montes , 976 F.2d 235, 240 (5th Cir.

1992).

In making sentencing determinations, a district court may

consider a wide range of evidence and must be afforded wide

discretion in the sources of information it uses. U nited States v.

Kimbrough

, 69 F.3d 723, 734 (5th Cir. 1995). However, the

information upon which a judge relies must have “a s ufficient

indicia of re liability to support its probable accuracy.” U.S.

S ENTENCING G UIDELINES M ANUAL §6A1.3(a) (1995). While a PSR generally

bears sufficient indicia of reliability, United States v. Alfaro

,13

919 F.2d 962, 966, “[b]ald, conclusionary statements do not acquire

the patina of reliability by mere inclusi on in the PSR.” U nited

States v. Elwood , 999 F.2d 814, 817-18 (5th Cir. 1993).

Narviz’s presentence report (“PSR”) holds him responsible for

10,074 kilograms of marijuana. The probation officer states in the

PSR that the total is based primarily on information contained in

various debriefings, recorded meetings and telephone calls, and on

the amount of marijuana seized in the different arrests of the coconspirators. She further states that “[a]lthough the Government

has information from cooperating individuals that the defendant was

involved in narcotics trafficking activities.

. . over a period.

.

. of years, this information has not been corroborated with any

specificity. Therefore, the defendant is accountable for only

those amounts of drugs that have been substantiated[.]” However,

as Narviz points out, the debriefings, recorded meetings, and

telephone calls upon whi ch the probation officer relied are not

attached to the PSR. Nor is there an explanation of how the PSR

was corroborated. In short, there is no way for this Court to know

whether the PSR contains su fficient indicia of reliability.

We hold, though, that even if the PSR is unreliable, the

resulting error is harmless. Assuming a rguendo that Narviz’s

sentence were based only on the amounts proven at trial, his

sentence would not change. The PSR holds Narviz responsible for

10,074 kilograms of marijuana, which results in a offense level of

40. S ee U.S. S E NTENCING G UIDELINES M ANUAL § 2D1.5 (1995). Narviz4 This sentence applies to a de fendant with an offense level of

40 and a criminal history that falls within category I.

14 concedes that the government proved that he was responsible for

4,802 kilograms at trial. That amount, however, would give him an

offense level of 38, which is a two point reduction. I d. What

Narviz ignores is that his offense level was raised two points for

obstruction of just ice. Narviz does not appeal the upward

adjustment for obstruction of justice, and all issues not briefed

are waived. C inel

, 15 F.3d at 1345. Thus, even with the two point

reduction, Narviz’s offense level is 40, which would have resulted

in a sentence of 292-365 months. 4 See U.S. S E NTENCING G UIDELINES

M ANUAL Ch. 5 Pt. A (1995). Because Narviz’s sentence falls within

this range, any error resulting from reliance on the PSR is

harmless. S ee United States v. Misher

, 99 F.3d 664, 671 (5th Cir.

1996), cert

. denied sub nom

, Cobb v. United States , 118 S. Ct. 73

(1997).

6. FORFEITURE

21 U.S.C. § 853 permits the forfeiture of a person’s property

if h e has been convicted of a federal drug crime which is

punishable by more than a year’s imprisonment. Here, the jury

found Narviz’s truck was forfeit because it was “used, or intended

to be used, in any manner or part, to commit, or to facilitate the

commission of, [a drug crime]”, 21 U.S.C. § 853(a)(2), and because

it afforded Narviz control over a continuing criminal enterprise,

21 U.S.C. § 853(a)(3). On appeal, Narviz only contests the15

forfeiture under (a )(2). Because the forfeiture is sufficient

under § 853(a)(3), we affirm.

B. GRANT

1. COMPENSATED WITNESSES

Grant argues that the government’s case against him was based

largely on three compensated witnesses, who wer e paid either in

terms o f travel expenses or in lenient sentence recommendations.

As a result, he was entitled to a compensated witness instruction;

however, the trial court only generally instructed the jury on the

effect of a plea agreement. Because Grant failed to raise this

claim at trial, this Court reviews for plain error. U nited States

v. Lopez , 923 F.2d 47, 49 (5th Cir. 1991).

For a compensated witness’ testimony to be admissible, it must

meet four requirements: 1) the government may not encourage or

deliberatel y use perjured testimony; 2) the government must

completely and timely disclose to the accused the fee arrangement

it made with the informant; 3) the accused must have an adequate

opportunity to cross- examine the informant and government agents

about any compensation agreement; and 4) the trial court must give

a careful instruction to the jury pointing out the compensated

witness’ suspect credibility. U nited States v. Rizk

, 833 F.2d 523,

525 (5th Cir. 1987).

While the judge did not give an instruction pointing out the

witnesses’ suspect cr edibility, he did instruct the jury to5 The judge instructed that “[t]he testimony of one who provides

evidence against a defendant as an informer pursuant to the terms

of a plea agreement, or for personal advantage or vindication, must

always be examined and weighed by the jury with greater care and

caution than the testimony of ordinary witnesses.”

16 carefully, cautiously weigh the testimony of those who have entered

into a plea a greement. 5 It is up to the jury to evaluate the

credibility of compensated witnesses, United States v. Gar c ia

Abrego

, 141 F.3d 142, 151 (5th Cir. 1998), and the judge’s

instruction allowed the jury to do so. Any error, then, in failing

to give a specific instruction does not rise to the level of plain

error.

2. SPEEDY TRIAL ACT

This Court reviews the factual findings supporting a Speedy

Trial Act ruling for clear error and the legal conclusions de novo

.

United States v. Grosz

, 76 F.3d 1318, 1323 (5th Cir.), cert.

denied

, 117 S. Ct. 167 (1996); United States v. Tannehill

, 49 F.3d

1049, 1051 (5th Cir.), cert. denied , 116 S. Ct. 167 (1995).

Under the Speedy Trial Act (“the Act”), a defendant must be

tried within seventy days of indictment or of the day the defendant

first appears before the judge or magistrate, whichever is later.

1 8 U.S.C. § 3161(c)(1). If more than seventy days pass, the

indictment is dismissed upon the defendant’s motion. 18 U.S.C. §

3162(a)(2). Delay resulting from any pretrial motion through the

conclusion of the hearing or other prompt disposition of the motion

is excluded from calculation. 18 U.S.C. § 3161(h)(1)(F). All the17

time between filing the motion and conc luding the hearing is

excluded whether or not a delay in holding the hearing is

reasonably necessar y. H enderson v. United States

, 476 U.S. 321,

330 (1986).

Grant argues that ninety non-excludable days elapsed between

the time he was indicted (December 5, 1995) and the time he moved

to dismiss the indictment pursuant to the Act (November 26, 1996).

Thus, the trial court should have dismissed his indictment. We

disagree.

As stated above, the Act begins counting seventy nonexcludable days from the day of indictment or the day the defendant

first appears in court, whichever is later

. While Grant was

indicted December 5, 1995, he did not make his first appearance

until January 5, 1996. Because his first appearance was later than

the indictment, Grant’s calculation includes more than twenty

improperly counted days. Thus, fewer than seventy excludable days

elapsed.

3. INSUFFICIENT EVIDENCE

Grant argues th at he was improperly convicted of money

laundering. For the government to convict him, it must prove that

he transferred money to or from the United States with the intent

of promoting or carrying on of marijuana distribution. S ee 18

U.S.C. § 1956(a)(2). He concedes that he asked another to transfer

money from Mexico to the U.S. to pay for the ranch; however, he6 The government alleges that Narviz used a straw man, Francisco

Garcia, to purchase the ranch. The evidence showed, though, that

Narviz made the payments.

7 In October 1994, an potential buyer unexpectedly stopped by the

ranch. He testified that he could smell marijuana and that he

observed eight Hispanic men with backpacks and bedding in the ranch

house.

18 contends that there is insufficient evidence showing that he knew

that ranch was being used for illegal activity.

This Court reviews the ev idence in the light most favorable

to, and with all reasonable inferences drawn in support of, the

verdict. U nited States v. Thompson

, 13 0 F.3d 676, 688 (5th Cir.

1997). We must affirm Grant’s conviction under these counts if any

rational trier of fact could have found the essential elements

beyond a reasonable doubt. J ackson v. Virginia

, 443 U.S. 307, 319

(1979).

Because Grant admits that h e directed ranch payments to be

transferred from Mexico to the U.S., the only question is whether

there is sufficient evidence to show that Grant knew of the ranch’s

illegal purpose. He contends that the evidence is insufficient.

Six months after Grant became ranch foreman in 1991, he was kicked

off because the buyer 6 had not made regular payments. He did not

return until early 1993. Moreover, the first direct event linking

the ranch to marijuana distribution occurred in October 1994 7 after

Grant ceased to be foreman.

Grant’s argument fails because he does not point this Court to19

any evidence which would contradict the government’s evidence that

he was connected with marijuana distribution. For instance, while

Grant claims he was not the foreman in October 1994, he fails to

substantiate his argument with evidence in the record. Nor does he

point thi s Court to any evidence that would show that his sole

capacity at the ranch was foreman. On the other hand, the

government’s evidence shows that si x months after Grant became

f oreman, all the cattle were gone and the trees showed sig ns of

neglect. Further, routine oil changes had not been done on the

equipment, and fences had deteriorated or been removed altogether.

Twenty months after Grant returned, the ranch still had no pecans

or cattle, and the stock pens, irrigation ditches, and two houses

were neglected.

The governm ent also presented evidence that David Powell, a

co-conspirator, had picked up a marijuana load at the ranch for

Juan Martinez. Moreover, when Grant’s house was searched after his

arrest, agents found an envelope with the name “Juan Martinez”

penciled on it. While this evidence is thin, we review in the

light most favorable to the verdict. We cannot say that a rational

trier of fact could not have found beyond a reasonable doubt that

Grant laundered money.

4. UNITED STATES SENTENCING GUIDELINES

The district court’s findin g of fact are reviewed for clear

error, and its application of those facts to the guidelines are20

reviewed de novo

. U nited States v. Moore

, 997 F.2d 55, 60 (5th

Cir. 1993). Under the sentencing guidelines, a defendant is

accountable for all relevant conduct including the foreseeable acts

of his co-conspirators. U nited States v. Sotelo

, 97 F.3d 782, 799

(5th Cir. 1996); U NITED S T ATES S ENTENCING G UIDELINES M ANUAL §

1B1.3(a)(1)(B). In attributing the acts of co-conspirators to a

particular defendant, those acts must be reasonably foreseeable and

within the scope of the criminal activity. U nited States v. Smith

,

13 F.3d 860, 867 (5th Cir. 1994).

Grant argues that the 9,028 kilograms attributed to him were

not reasonably foreseeable. He contends that there was no evidence

that he was involved in the drug conspiracy from 1991-94. Rather,

he claims involvement beginning in September 1995. Because 400

pounds were delivered between September and November 1995, he

claims responsibility only for that amount.

Grant’s argument here is similar to his insufficiency of the

evidence argument. Again, he fails to present any evidence to

support his argument that he was not involved from 1991-94.

However, we do have evidence before us that while Grant was foreman

the ranch was severely neglected. Further, the government

presented evidence that in October 1994, a potential buyer, who had

contracted to purchase the ranch, made an unexpected visit. The

visit made him suspicious that illegal drug activity was occurring

at the ranch. When he reported these suspicions, Grant replied

that he “would see about it”. Grant, however, sued to void the21

sale contract with the buyer and to bar him from the ranch. With

this evidence before us, and with nothing to contradict it, we hold

that the 9,028 kilograms of mari juana was foreseeable and thus,

affirm Grant’s sentence.

CONCLUSION

For the foregoing reasons, we VACATE Narviz’ CONVICTIO N on

count one. Otherwise, we AFFIRM Narviz’s CONVICTIONS on the

remaining counts and his SENTENCE. As for Grant, we AFFIRM both

his CONVICTIONS and SENTENCE.