* 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. 07-40469

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

JOSE ZAVALA; SIMON RICARTE BALDERAS, JR, also known as BJ;

RENE ZAVALA

Defendants - Appellants

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 6:06-CR-27-3

Before KING, WIENER, and ELROD, Circuit Judges.

PER CURIAM:*

Defendants-Appellants Jose Zavala (“Jose”), Rene Zavala (“Rene”), and

Simon Ricarte Balderas Jr. (“Balderas”) (collectively “Appellants”) appeal their

convictions and sentences for conspiracy to distribute drugs, possession with

intent to distribute drugs, and possession of a firearm in furtherance of a drug

trafficking crime. Appellants contend that (1) the evidence is insufficient to

support their convictions, (2) the district court erred by failing to instruct the

United States Court of Appeals

Fifth Circuit

F I L E D

July 15, 2008

Charles R. Fulbruge III

Clerk
No. 07-40469

2

jury that a mere buyer-seller relationship is insufficient to support a conviction

for conspiracy to distribute drugs, and (3) the district court erred by sentencing

them for multiple violations of 18 U.S.C. § 924(c). Jose and Rene also contend

that their sentences violate the Eighth Amendment. We affirm the convictions

of each defendant on all but three counts of the indictment, reverse the

convictions on those three counts, and remand for resentencing. 

I. FACTS AND PROCEEDINGS

Appellants were charged with and convicted of participating in a

methamphetamine (“meth”) drug trafficking ring spanning Texas, Louisiana,

and Florida. At trial, the government adduced testimony from several indicted

co-defendants and confidential informants (“CIs”). The relevant evidence can be

summarized as follows:

Jose and his brother Rene distributed large amounts of meth directly to

Balderas and to several others in the Tyler, Texas area. Typically, Rene would

drive from Tyler to Dallas, pick up meth from one of several sources, and return

with it to the Tyler residence that he shared with Jose (“the Zavala Residence”).

On several occasions, Balderas waited for Rene at the Zavala Residence. On

Rene’s return, Jose would divide the meth into smaller quantities suitable for

distribution and would sell at least some of the meth to Balderas. Jose also sold

meth to several other persons, including Sam Leal (“Leal”).

In February 2005, John Carroll (“Carroll”), a customer of Balderas and

Jose, moved to Florida and began distributing meth in Miami. Drugs were

supplied to Carroll by Balderas, who was receiving at least some of his drugs

from Jose and Rene. Balderas reportedly traveled to Miami to check on the

meth distribution business on two occasions, once with Leal.

In mid-2005,the Zavala Residence was burglarized, and money and drugs

were taken. Jose and Rene suspected that Leal and Jacinto Martinez

(“Martinez”) were responsible for the burglary. Leal and Martinez subsequently
No. 07-40469

3

made an agreement with “Tino,” one of Jose and Rene’s suppliers, that if Leal

and Martinez worked to pay off the loss, they could purchase meth directly from

Tino instead of going through Jose and Rene. Thereafter, Leal and Martinez

used Tino as a direct supply source in the Tyler area. 

Also in mid-2005, Paul Fazande (“Fazande”) met with Balderas, Leal, and

Martinez at Balderas’s house to discuss Fazande moving to Shreveport to further

develop the meth distribution enterprise. Balderas, Leal, and several others

began delivering meth to Fazande in Shreveport for resale. Fazande testified

that approximately $60,000 a week was returned to Balderas and Leal in Tyler

from the sale of the meth in Shreveport. 

Fazande was arrested in Shreveport in the fall of 2005. During the course

of that arrest, police found 343 grams of meth, drug ledgers, and scales.

Additionally, the police learned that Balderas had picked up $10,000 from

Fazande in Shreveportthe morning before his arrest, and Balderas’s mother and

father had picked up $11,500 from Fazande on the day of his arrest.

Fazande’s girlfriend, Ashley Bonner (“Bonner”) was arrested with Fazande

but was released. Balderas subsequently called Bonner and inquired about

Fazande’s arrest. As Bonner had knowledge of Fazande’s customers, Balderas

proposed that she take over Fazande’s meth distribution in Shreveport. Bonner

then began selling meth in Shreveport and, on at least one occasion,

accompanied Balderas to pick up meth from Martinez. Bonner also accompanied

Balderas to pick up meth from Jose.

Cale Cassidy (“Cassidy”) purchased meth from Rene, Jose, and Balderas

in January and February of 2006. On January 7, 2006, Cassidy traveled to

Dallas with Rene to purchase one pound of meth from “Mario.” Jose and Rene

distributed part of this meth to Drew Burkhart (“Burkhart”), who had met

Balderas through Jose. Burkhart was also introduced to Leal and Martinez by

Jose, after which Burkhart bought meth from them. On January 24, 2006,
No. 07-40469

1 United States v. Medina, 161 F.3d 867, 872 (5th Cir. 1998).

2

Id.

3 United States v. Parker, 505 F.3d 323, 331 (5th Cir. 2007) (internal quotation marks

omitted).

4 Medina, 161 F.3d at 872.

4

Cassidy purchased about one ounce of meth and received a .22 caliber rifle from

Jose. On February 3, 2006, Cassidy again went to Dallas with Rene.

In March 2006, a federal grand jury indicted Jose, Rene, and Balderas, as

well as several other co-conspirators. In November 2006, a jury returned guilty

verdicts against allthree Appellants. Jose and Balderas were sentenced to 1,822

months in prison. Rene was sentenced to 1,788 months.

II. ANALYSIS

A. Sufficiency of the Evidence

1. Standard of Review

As Appellants’ motion for a judgment of acquittal was denied, we review

that denial de novo.

1

“In doing so, we consider the evidence, all reasonable

inferences drawn from it and all credibility determinations in the light most

favorable to the Government, and affirm if a reasonable jury could find the

offense’s essential elements beyond a reasonable doubt.”2

2. Drug Conspiracy Charge

“To find a defendant guilty of participating in a drug conspiracy, the

government must show (1)there was an agreement between two or more persons

to possess controlled substances with the intent to distribute; (2) the defendant

knew of the conspiracy and intended to join it; and (3) the defendant voluntarily

participated in the conspiracy.”3 The government may prove a conspiracy by

circumstantial evidence alone;4 however, we have repeatedly “stressed that we
No. 07-40469

5 United States v. Dean, 59 F.3d 1479, 1485 (5th Cir. 1995) (internal quotation marks

omitted).

6 United States v. Moran, 984 F.2d 1299, 1303 (5th Cir. 1993).

5

will not lightly infer a defendant’s knowledge of and participation in a

conspiracy.”5

Our review of the record convinces us that the government presented

sufficient evidence for a rational jury to conclude that Balderas, Jose, and Rene

conspired among themselves and with others to distribute drugs in Texas,

Louisiana, and Florida. At trial, several witnesses testified that Jose and Rene

supplied Balderas with large amounts of meth over an extended period of time.

Although an isolated buyer-seller relationship alone does not constitute a

conspiracy to distribute drugs, we have recognized that “[a] pattern of sales for

resale between the same persons, together with details supplying a context for

the relationship, might well support a finding of conspiracy.”6 Balderas

frequently brought clients to the Zavala Residence when he purchased meth

from Jose and Rene, and Appellants shared many of the same clients.

Appellants were recorded discussing their meth business, including collection

methods and other members of the conspiracy. A rational jury could have

concluded from the evidence that Jose, Rene, and Balderas conspired with each

other to distribute meth. 

Jose and Rene contend that even if they did conspire with Balderas, they

were not part of Balderas’s conspiracy to distribute drugs in Louisiana and

Florida. Although the government did not present direct evidence linking Rene

and Jose to the conspiracy in Florida and Louisiana, we are satisfied that the

government presented sufficient circumstantial evidence for the jury to infer

that Jose and Rene were part of the overall conspiracy to distribute drugs. Trial

testimony linked Jose and Rene to Balderas at the time that Balderas was

orchestrating the meth distribution network in Louisiana and Florida.
No. 07-40469

7 United States v. Charles, 469 F.3d 402, 406 (5th Cir. 2006).

8

Id. (emphasis added) (quoting United States v. Ceballos-Torres, 218 F.3d 409, 414 (5th

Cir. 2000)).

9

Id.

10 Ceballos-Torres, 218 F.3d at 415.

6

Fazande’s girlfriend, Bonner, went with Balderas to pick up meth from Jose

subsequent to the time when the Zavalas claim that they had stopped serving

as Balderas’s supplier. All Appellants were transacting business with Cassidy

in early 2006. The jury could have inferred from this evidence that Jose and

Rene continued to serve a source of supply for Balderas and that they were part

of Balderas’s drug distribution network. We hold that the evidence is sufficient

to support the jury’s verdict. 

3. Possession of a Firearm in Furtherance of a Drug Trafficking Crime

18 U.S.C. § 924(c)(1)(A) states that “any person who, during and in

relation to any crime of violence or drug trafficking crime . . . uses or carries a

firearm, or who, in furtherance of any such crime, possesses a firearm” shall be

sentenced to an additional term of imprisonment. Nevertheless, the “‘mere

presence’ of a firearm at the scene of drug activity does not” itself equal

possession in furtherance of the activity.7 The government must present

“‘evidence more specific to the criminal defendant, showing that his or her

possession actually furthered the drug trafficking offense.’”8 To determine

whether a defendant possessed the gun in furtherance of drug trafficking, we

consider several factors including:“(1) the type of drug activity being conducted;

(2) the accessibility of the firearm; (3) the type of weapon; (4) whether the

weapon is stolen; (5) whether the possession is lawful; (6) whether the gun is

loaded; (7) the weapon’s proximity to drugs or drug profits; and (8) the time and

circumstances under which the gun is found.”9 Overall, the possession must

further, advance, or help forward the underlying offense.10
No. 07-40469

11 328 U.S. 640 (1946).

12 United States v. Jensen, 41 F.3d 946, 955-56 (5th Cir. 1994) (alteration in original)

(internal quotation marks omitted).

13 United States v. Dean, 59 F.3d 1479, 1489 (5th Cir. 1995). 

14 Id. at 1490 n.20.

7

i. Counts 9, 11, and 13

On September 8, 2005, CI Donna Taylor (“Taylor”) purchased an ounce of

meth from Balderas. While at his residence, she observed a firearm on the coffee

table next to the drugs. According to Taylor, Balderas always did business with

a gun present, and he referred to it as his “baby.” Taylor stated that she never

saw Balderas conduct a drug transaction without his gun being present. This

evidence is sufficient for the jury to infer that Balderas was using the gun for

security in furtherance of his drug transactions.

Jose and Rene insist that they cannot be held accountable for Balderas’s

possession of the firearm because such possession was not reasonably

foreseeable. Under Pinkerton v. United States,

11 “[a] party to a conspiracy may

be held responsible for a substantive offense committed by a coconspirator in

furtherance of a conspiracy, even ifthat party does not participate in or have any

knowledge of the substantive offense.”12 For a defendant to be convicted of the

substantive offenses of a coconspirator under Pinkerton, the act must have been

reasonably foreseeable to the defendant.13

We have consistently held that, under Pinkerton, it is foreseeable that a

drug defendant’s co-conspirator will carry a firearm during a drug transaction

when a substantial quantity of drugs is involved.14 Although Balderas sold only

one ounce of meth to Taylor, she testified that she observed at least a pound of

meth during the transaction. The large amount of meth present at the time of

the sale makes it foreseeable that Balderas would conduct the sale of drugs with
No. 07-40469

8

a firearm. The conviction of each Appellant on Count Nine of the indictment is

supported by sufficient evidence.

Counts Eleven and Thirteen of the indictment relate to Balderas’s sales

of meth to Taylor on September 9, 2005 and September 20, 2005, respectively,

under essentially identical circumstances as the September 8 sale. The

government presented sufficient evidence to support Appellants’ convictions on

these two additional counts of the indictment.

ii. Count 14 

On September 21, 2005, Taylor again visited Balderas’s residence. Taylor

testified that during the visit, she purchased a rifle for the purpose of shooting

coyotes on her farm. She testified that the purchase price for the rifle had been

negotiated on the previous day while she was at Balderas’s house to purchase

meth. Taylor did not buy any meth from Balderas on the day that she bought

the rifle. 

Appellants contend that the government failed to prove that Balderas’s

possession of the rifle was in furtherance of Count One of the indictment,

conspiracy to distribute, because Taylor was buying the gun of a type not

typically related to drug transactions for a purpose unrelated to drugs, and no

meth sale or overt act of the conspiracy occurred during or in proximate to the

sale of the gun. We agree.

Unlike Counts Nine, Eleven, and Thirteen of the indictment, no sale of

meth took place while Balderas was selling the rifle sold to Taylor. The only

evidence presented by the government to support the allegation that Balderas

was selling the rifle in furtherance ofthe drug conspiracy is that Taylor observed

(1) drugs at Balderas’s residence and (2) between $50,000 and $100,000 in cash,

which was allegedly there for the purpose of buying meth at a later time. This

evidence is insufficient to support an inference that this particular rifle

“furthered, advanced, or helped forward” the drug conspiracy. Accordingly, we
No. 07-40469

15 Charles, 469 F.3d at 406.

9

hold that this conviction is not supported by sufficient evidence and must be

vacated.

iii. Count 17

On January 19, 2006, Toribia Gloria Medina (“Medina”) and Manuel

Escobar (“Escobar”) were arrested by law enforcement agents at the Comfort

Suites located at 3307 North Fourth Street in Longview, Texas. During the

arrest, law enforcement agents seized ten ounces of meth. After the arrest,

Medina’s house in Tyler, Texas was searched, and law enforcement agents seized

two sets of scales, meth paraphernalia, and an SKS assault rifle. 

Appellants assert that the evidence is insufficient to prove that the rifle

confiscated from Medina’s residence was possessed in furtherance of the drug

trafficking charge because the only evidence in the record is thatthe firearm was

found at the same location as the drugs. Once again, we agree.

The record in this case lacks specific evidence connecting the weapon to

the drug activity. There is no reference to the proximity of the gun to the drugs,

the accessibility ofthe gun, whether the gun was loaded, whether it was lawfully

obtained, or whether ammunition was present in the house. As previously

noted, not every weapon found at the location of a drug sale may be considered

to be possessed “in furtherance” of a drug crime.15 In the absence of additional

evidence, we cannot conclude that the mere presence of the weapon at Medina’s

home is sufficient to prove that it was possessed in furtherance of the drug

trafficking crime. 

iv. Count 19

On January 24, 2006, Cassidy purchased meth from Jose while at the

Zavala Residence. Cassidy indicated that he also wanted to purchase a

handgun. Jose stated that he would not sell a handgun to Cassidy, but he
No. 07-40469

10

offered to give him a rifle without charge. Shortly thereafter, Jose retrieved the

gun, a .22 caliber rifle that was inside a carrying case, from a closet in an

adjacent room and gave it to Cassidy. 

Appellants insist that there is insufficient evidence to prove that the Jose

possessed this rifle in furtherance of the drug transaction. The indictment was

based on Jose’s possession of the .22 caliber rifle, not the handgun that Cassidy

attempted to purchase. Appellants contend that there is no evidence that the

rifle was loaded, stolen, or stored in close proximity to drugs or money.

Additionally, they assert that Jose could not have been using the gun to further

the drug trafficking offense because he did not know what type of gun it was,

and he indicated that he had no need for it.

Based on the facts in the record, we agree with Appellants that the

governmentfailed to produce sufficient evidence to prove that Jose possessed the

gun in furtherance of the drug activity. The rifle was not stored in the same

location as the meth; there is no evidence that the gun was loaded or that it was

stolen; a .22 caliber rifle is not typical of guns used or possessed in connection

with drug transactions; Jose stated that he did not know what type of gun it

was; and he gave the gun to Cassidy free of charge, indicating that he had no

need or use for the gun.

4. Possession with Intent to Distribute 

i. Counts 2, 3, 5, 8, 10, 12, 18 and 20

These counts of the indictment relate to Balderas and Jose’s possession

and sale of meth to various CIs. Appellants contend that the government failed

to present sufficient evidence from which the jury could infer Pinkerton co-
No. 07-40469

16 See United States v. Mata, 491 F.3d 237, 241-42 (5th Cir. 2007).

11

conspirator liability for these transactions because the individual meth sales

were not reasonably foreseeable. We disagree. 

Our review of the record demonstrates that the government presented

sufficient evidence for the jury to conclude that Appellants conspired together

to distribute meth throughoutTexas,Louisiana, andFlorida. As members of the

conspiracy, Balderas and Jose’s sales of meth related in Counts Two, Three,

Five, Eight, Ten, Twelve, Eighteen, and Twenty of the indictment were

reasonably foreseeable. Under Pinkerton, there is sufficient evidence to support

Appellants’ convictions under these counts. 

ii. Counts 4, 7, 16, and 25

These counts of the indictment relate to sales of meth by co-conspirators

Mark Anthony Gomez (“Gomez”), Fazande, Medina, Escobar, and David Branch

(“Branch”) to various CIs. Rene and Jose assert that there is insufficient

evidence to support their convictions because several of the co-conspirators

testified that these co-conspirators did not work directly with either Rene or

Jose. Our review of the record reveals, however, that the government presented

sufficient testimony at trial from which the jury could have concluded that

Gomez, Fazande, Medina, Escobar, and Branch were all members of the

conspiracy and that their participation was reasonably foreseeable by

Appellants. The Appellants’ argument regarding these counts is without merit.

B. Buyer-Seller Jury Instruction

Appellants contend that the district court erred in refusing to instruct the

jury that evidence of a mere buyer-seller relationship is insufficient to support

a conviction for conspiracy. This argument is foreclosed by Fifth Circuit

precedent;16 however, Appellants raise this issue on appeal to preserve it for

further review.
No. 07-40469

17 United States v. Phipps, 319 F.3d 177, 183 (5th Cir. 2003).

18 Id.

19 Id.

20 Id. at 181.

21 Id. at 186-87.

12

C. Sentencing Issues

1. Consecutive Sentences under 18 U.S.C. § 924(c)

i. Standard of Review

We review questions of statutory interpretation de novo.

17

ii. Merits 

Appellants contend that the district court erred in sentencing them for

multiple violations of § 924(c)(1). They argue that Balderas’s possession of a

firearm, as charged in Counts Nine, Eleven, Thirteen, and Fourteen of the

indictment, was a single, continuous possession and therefore constituted only

one violation of § 924(c). In support of this contention, Appellants rely on our

decision in United States v. Phipps.

18

In Phipps, we held that § 924(c)(1) does not authorize multiple convictions

for a single use of a firearm based on multiple predicate offenses.19 The

defendants in Phipps were convicted of two counts of violating § 924(c)(1), one

for the predicate offense of kidnaping and another for car jacking.20 We

determined that the language of § 924(c)(1) allowed the court to impose only one

conviction for every “use” of the firearm, then held that the defendants “used”

the firearm only once — when one defendant threatened the victim with the

firearm during the kidnaping.21In doing so, we noted that even though the

single “use” of the gun allowed the defendants to commit two crimes, kidnaping
No. 07-40469

22 Id.

13

and car jacking, there could be only one conviction under § 924(c) because there

was only one use.22

Unlike the situation in Phipps, Balderas “used” the firearm on more than

one occasion. The three separate drug transactions underlying counts 9, 11, and

13 occurred on different days. Taylor returned each day to make a new purchase

of meth and thus to commit a new crime. During each visit, Balderas “used” the

weapon to further his commission of a separate and distinct crime of drug

trafficking. Under these circumstances, the district court did not err by

sentencing the defendants for multiple violations of § 924(c). 

2. Eighth Amendment Claim

Rene and Jose insistthattheir prison sentences of more than one hundred

years each for the conduct of co-conspirators violate the Eighth Amendment. As

we reverse Rene and Jose’s convictions on three of the counts charged in the

indictment, we must vacate their entire sentences and remand for resentencing

on only those convictions that we affirm today. Whatever sentences are imposed

on remand, they are virtually certain to differ from the original sentences. This

makes the Eighth Amendment challenges moot, at least for the time being, so

we do not address them today. 

III. CONCLUSION

We affirm the Appellants’ convictions on all counts other than Counts

Fourteen, Seventeen, and Nineteen of the indictment. We reverse Appellants’

convictions under Counts Fourteen, Seventeen, and Nineteen, and we remand

this case for resentencing for the affirmed convictions, in accordance with this

opinion. 

AFFIRMED in part, REVERSED in part, and REMANDED for resentencing.