* Pursua nt to 5 T H C IR

. 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this opinion should not be published and is not precedent except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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

August 17, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-40757

UNITED STATES OF AMERICA

Plaintiff-Appellee,

versus

JOSE HERIBERTO RAMIREZ; NELSON RAMIREZ

Defendants-Appellants.

-------------------- Appeals from the United States District Court

for the Southern District of Texas

(03-CR-903)

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

Before JOLLY, WIENER, and DENNIS, Circuit Judges.

PER CURIAM: *

Defendants-Appellants Jose Heriberto Ramirez (“Jose”) and

Nelson Ramirez (“Nelson”) raise six challenges to their convictions

and sentences. We affirm.

I. FACTS & PROCEEDINGS

In October 2001, Bureau of Immigration and Customs Enforcement

(“BICE”) Special Agent Victor Hugas received a call from a paid

informant, Martin Delgado, who told him that a white Chevrolet

Cavalier would deliver a large quantity of marijuana to a “stash1 Hugas testified at the suppression hearing that the gate was

approximately four feet high. Photographs of the property show

that the gate is ineffective as any sort of visual barrier to the

property. The right hand side of the gate – which opens outward

toward the street – connects to a utility pole at the sidewalk.

There is no additional barrier from the utility pole to 420

Esperanza, leaving a wide gap through which agents could o bserve

the activities on the property.

2 house” in Brownsville, Texas. Delgado, one of the occupants of the

Cavalier, gave Hugas the Cavalier’s route and the time frame of the

delivery. Delgado testified that he and the other passenger in the

Cavalier, his cousin Juan Rodriguez Cardenas, had driven earlier

that day to an area near the Rio Grande where they had picked up

the marijuana.

Following Delgado’s t ip, six agents made contact with the

Cavalier and foll owed it to a residence at 420 Esperanza. The

agents watched the Cavalier pause in front of a wooden gate at that

address . While driving past the property with his passenger,

Special Agent Arturo Martinez, Hugas was able to peer over the

gate, directly onto the property. 1 Hugas then parked the vehicle

three houses away. After several moments, two individuals ——

later identified as Jose and Nels on Ramirez —— were seen to walk

out of 420 Esperanza and open the gate to allow the Cavalier access

to the property. Delgado and Cardenas drove the Cavalier in and

parked it in fr ont of the carport. Delgado got out of the

Cavalier, opened the trunk, and

—— with the assistance of Nelson

——

removed the marijuana from the trunk. The Cavalier remained in the2 The parties also refer to the canal as a ditch.

3 Sup e rvisory Agent Joseph Celaya testified that during

surveillance, he received a call notifying him that a vehicle was

leaving the premises. Together with Supervisory Agent Danny

Ibarra, Celaya followed the vehicle to Duran’s Grocery Store

(“Duran’s”). The events at Duran’s are irrelevant for purposes of

this appeal because they relate to the issue of Jose’s consent to

search 420 Esperanza, which, as we note below, we do not reach.

3 carport for one to three minutes, then left. The gate was closed

behind it.

Contiguous to the left side of 420 Esperanza is a canal. 2 A

fence separates the house and the canal. A gate in the fence

allows access to the canal from the backyard of the house. After

the Cavalier left, a Southern Union Gas truck —— which had been

parked in the driveway

—— backed into the street and parked to the

left of 420 Esperanza, next to the ca nal. The driver ——

defendants’ brother, Jesus Ramirez —— placed orange cones at each

end of the truck, turned on the hazard lights, and stood next to

the vehicle. Hugas testified that he watched Jose leave the

carport area, walk around the utility pole at the left corner of

the property, descend into the canal, then ascend out of the canal.

According to Hugas, Jose repeated this act approximately three

times. Hugas testified that he did not see Jose carrying any

object but that he stopped at the gas truck and spoke to Jesus.

After approximately thirty to forty minutes of surveillance,

all of the agents approached the hou se. 3 There, they encountered

Jesus, Jose, and Nelson. The agents told the brothers that they4

(the agents) had reason to believe that the brothers were in

possession of narcotics. The agents presented Jose with a United

States Customs Service Consent to Search form, which they explained

to him. After Jose signed that form, the agents proceeded to

search 420 Esperanza. The search produced no evidence of marijuana

in either the ground floor of the house or the carport.

In Nelson’s room, the agents found an empty Beretta pistol

case and a 40-millimeter magazine. The agents also discovered a

safe in Nelson’s room, which he opened for them. Inside the safe

was approximately $7,000 in cash. Nelson told the agents that the

cash was proceeds from a recent sale of a car. The agents did not

seize o r count the cash. After completing their search of the

house, the agents searched the backyard area within the fence,

including the interior of a shed that they discovered there. They

found no marijuana.

Two apartments are located on the second story of 420

Esperanza. The doors to the apartments are located off the balcony

above the carport. Agents secured consent from the upstairs

residents to search the two apartments. In the apartment occupied

by Vanessa and Jose Garcia, agents discovered a large roll of

shrink wrap, well-known drug paraphernalia.

Hugas testified that, after the white Cavalier had left,

agents had observed Nelson stan ding on the balcony above the

carport. The balcony leads to the upstairs apartments. During the

course of the search, Hugas went to the balcony. At the location5

where Nelson had been seen standing, Hugas found a loaded 9-

millimeter Glock pistol and extra magazine lying on a small ledge

underneath the handrail, at foot level. Hugas testified that, in

addition to access from the balcony, anyone standing at ground

level in the carport could easily reach up and retrieve the gun

from the ledge.

From his vantage point on the balcony, Hugas also noticed that

s ome of the foliage around the drainage canal was crushed. The

agents proceede d from 420 Esperanza toward the canal to continue

their search, passing through the backyard gate in the fence and

down into the canal. In it they discovered a press, which,

according to Hugas, was the kind used to press leafy marijuana into

brick form. No evidence was presented, however, that the press

contained any marijuana residue.

In the canal, the agents also discovered several loose bundles

of mariju ana partially hidden by ground cover and wrapped in

cellophane. A black plastic bag containing two more bundles of

marijuana was discovered as well.

After finding the marijuana, the agents returned to the house.

They advised the three brothers of their constitutional rights and

obtained Jose’s signature on an advice-of-rights form. Hugas and

Special Agents Arturo Martinez and Jaime Cavazos then interviewed

Jose in the p r esence of Nelson and Jesus. Jose denied any

knowledge of the marijuana. When asked about the firearm, Jose

informed the agents t hat he was a felon and was not allowed to6

possess a firearm. He also denied any knowledge of the white

Cavalier; yet when the agents informed him that they had conducted

a surveillance of the house, Jose told the agents that the

occupants of the Cavalier had business with the tenants of the

upstairs apartments. When the agents again asked Jose about the

marijuana found in the canal, he st ated that the high volume of

narcotics activ ity in the area was the reason that he wanted to

move from 420 Esperanza. Although Nelson was present, the agents

did not interview him. After the agents completed their interview

with Jose, they left. Hugas testified that because no agent had

seen either Jose or Nelson handle the marijuana, the agents had no

probable cause to arrest either defendant at that time.

The next morning, Agent Martinez and several canine

enforcement officers returned to the canal, where they discovered

more marijuana. During the course of all their searches, the

agents seized a total of 82.25 kilograms

—— or 182 pounds

—— of

marijuana.

In July 2002, Agents Hugas’s continuing investigation of the

marijuana discovered in the canal led him to Cameron County Jail,

where he interviewed Juan Rodriguez Cardenas. When Hugas informed

Cardenas that they knew that he had been in the white Cavalier on

October 9, 2001, Cardenas agreed to cooperate in the investigation.

Before he could do so, however, Cardenas was deported.

In October 2003, Cardenas returned to the United States. When

Hugas discovered Cardenas at his home, he renewed his offer to7

assist in the investigation. Hugas arrested Cardenas for unlawful

re-entry. At the police station, Hugas presented Cardenas with a

photographic array, from which he identified both Jose and Nelson

as the two me n who had helped unload the marijuana from the

Cavalier.

The grand jury returned a two-count indictment against Jose,

Nelson, and Jes us, charging each with (1) conspiracy to possess

with intent to distribute approximately 82.25 kilograms of

marijuana in violation of 21 U.S.C. § 846, and (2) possession with

intent to distribute approximately 82.25 kilograms of marijuana in

violation of 21 U.S.C. §§ 841 (a)(1) and (b)(1)(C). Jose and

Nelson pleaded not guilty, but Jesus pleaded guilty and is not

involved in this appeal.

Jose and Nelson filed motions to supp ress the marijuana

discovered in the canal and the handgun found on the ledge by the

balcony. They contended that the agents obtained the evidence in

violation of defendants’ Fourth Amendment rights. They also moved

to suppress statements allegedly taken in violation of their Fifth

Amendment rights. After two hearings on the motions to suppress,

the district court denied them.

At the end of defendants’ trial, the jury found them guilty on

each count. They filed a motion for a new trial, which the

district c ourt denied. The district court ordered pre-sentence

investigation reports (“PSR”). Defendants lodged several

objections to the PSRs, all of which the district court overruled.4 United States v. Chavez , 281 F.3d 479, 483 (5th Cir. 2002)

(citing United States v. Carreon-Palacio , 267 F.3d 381, 387 (5th

Cir. 2001)).

5 United States v. Reyes

, 349 F.3d 2 19, 222 (5th Cir. 2003)

(citing United States v. Jordan

, 232 F.3d 447, 448 (5th Cir.

2000)).

6 Defendants challenged the admission of both the marijuana

and the handgun and ammunition on Fourth Amendment grounds in their

motions to suppress in the district court. Before us, defendants

8 The court sentenced Jos e to concurrent 92-month terms of

imprisonment and Nelson to con current 70-month terms of

imprisonment. Defendants timely appealed.

II. ANALYSIS

A. Motion to Suppress

1. Standard of Review

“In considering a ruling on a motion to suppress, we review

the district court’s factual findings for clear error and its legal

conclusions, including its ultimate conclusion as to the

constitutionality of the law enforcement action, de novo.” 4 We

view the evidence in the light most favorable to the prevailing

party below, here, the government. 5

2. Merits of the Motion

Defend ants assert that the district court erred when it

concluded that the search and the ensuing seizure of the marijuana

did not implicate the Fourth Amendment because the agents had found

and seized the marijuana in an “open field” and not within the

protected curtilage of 420 Esperanza. 6 Specifically, they contendappeal the denial of their motions to suppress only to the extent

that the district court did not suppress the marijuana. They raise

no Fourth Amendment challenge to the district court’s ruling on the

handgun and a mmunition. They have therefore abandoned this

argument. Yohey v. Collins

, 985 F.2d 222, 224-25 (5th Cir. 1993)

(“Yohey has abandoned these arguments by failing to argue them in

the body of his brief.”). Defendants challenge the district court’s

admission of the handgun and ammunition on evidentiary

, as opposed

to Fourth Amendment , grounds.

7 480 U.S. 294 (1987).

8 265 U.S. 57, 59 (1924).

9 389 U.S. 347, 360 (1967).

9 that Hugas was at an unlawful vantage point

—— the balcony

—— when

he noticed the crushed foliage that led t he agents to search the

canal.

Applying the four-part test announced in Unit ed States v.

Dunn

, 7 the district court held that the marijuana was not within

the protected curtilage of 420 Esperanza. The court concluded that

“[l]ying outside the ‘curtilage’ as it does, the drainage canal is

an ‘open field’ for Fourth Amendment purposes.” Accordingly, the

district court held that the search of the canal did not implicate

the Fourth Amendment. We agree.

In Hester v. United States , the Supreme Court held that “the

special protection accorded by the Fourth Amendment to the people

in their ‘persons, houses, papers, and effects,’ is not extended to

the open fields.” 8 Although K atz v. United States 9

—— which

redirected Fourth Amendment analysis to an individual’s

“constitutionally protected reasonable expectation of privacy” ——10 466 U.S. 170 (1984).

11 Id. at 180.

12 See id.

13 Id. (quoting Boyd v. United States

, 116 U.S. 616, 630

(1886)).

14 Id.

10 called into question the “open fields” doctrine, the Supreme Court

reaffirmed its vitality in Oli ver v. United States

. 10 In O liver

,

the Court explicitly held that “no expectation of privacy

legitimately attaches to open fields.” 11

In contrast to open fields, the Fourth Amendment does extend

i ts protection to the curtilage of the home. 12 The Supreme Court

has defined curtilage as “the area to which extends the intimate

activity associated with the ‘sanctity of a man’s home and the

privacies of life.’” 13 To determine the extent of the curtilage,

courts have “reference[d]

. . . the factors that determine whether

an individual reaso nably may expect that an area immediately

adjacent to the home will remain pr ivate.” 1 4 The Court has

announced four non-exclusive factors to aid us in determining

whether a particular area lies within the curtilage: (1) the

proximity of th e area claimed to be curtilage to the home; (2)

whether that area is within an enclosure surrounding the home; (3)

the nature of the uses to which the area is put; and (4) any steps15 Dunn , 480 U.S. at 301.

16 See id.

17 See i d. at 302 (“It is also significant that respondent’s

barn did not lie within the area surrounding the house that was

enclosed by a fence.”).

18 See id.

19 See id.

20 See id. at 303.

11 taken by the resident to obscure the area from observation by

passersby. 15

The district court correctly held that the majority of the

four factors weigh in favor of the conclusion that the canal is not

part of the curtilage and is thus an “open field.” The canal was

not within an enc losure surrounding the house. 1 6 Indeed, it lay

outside the fence that surrounds the pro perty at 420 Esperanza. 1 7

I n addition, defendants never used the canal for any purpose

whatsoever. 18 Although defendants testified that at some point in

the past they main tained the canal area, Nelson later testified

that they do not use it on any regular basis for any purpose.

There was certainly no testimony that def endants used the canal

“for intimate activities of the home.” 19 Further, defendants have

done nothing to protect the area from observation by the public. 20

No barrier prohibits public access to or vie w of the canal, and

anyone can enter it from two different public streets.21 Oliver , 466 U.S. at 180 n. 11.

12 Although the proximity of the canal to the house

——

approximately 30 feet

—— weighs in defendants’ favor , the other

three factors indicate that the canal is not part of the curtilage.

Standing alone, the mere fact that the canal is close to

defendants’ home does not bring it within the curtilage: “It is

clear, however, that the term ‘open fields’ may include any

unoccupied or undeveloped area outside of the curtilage. An open

field need be neither ‘open’ nor a ‘field’ as those terms are used

in common speech.” 21 As the canal is an “open field,” as that term

is used in Fourth Amendment parlance, the agents’ search of the

canal and seizure of the marijuana in it did not violate the Fourth

Amendment.

Defendants nevertheless contend that Agent Hugas initially

observed the “open field” from the curtilage of 420 Esperanza.

Specifically, defendants assert that “the ag ents would not have

found the contraband but for the observations made and facts

learned as a result of their unlawful and warrantless entry into

the Appellant’s residence.” Defendants’ argument that a government

agent must first observe any alleged contraban d from a lawful

vantage point

—— i.e., an open field

—— has support in the case

law. We and other courts have held that i f the agents are standing

in an open field when they view the alleged contraband, the Fourth22 See United States v. Pace

, 955 F.2d 270, 275 (5th Cir. 1992)

(“However, the holding of Dunn was that once the officers were

standing in open fields outside the curtilage of the home, they

were privileged to view the inside of the barn.” (emphasis added));

see also Daughenbaugh v. Ci ty of Tiffin , 150 F.3d 594, 601 (6th

Cir. 1998) (“In fact, the Dunn Court simply held that officers

could observe either open fields or curtilage as long as the

vantage point of the observation was outside the curtilage. . . .

The broadest principle that may be inferred from the Dunn opinion

is that officers may constitutionally view a protected area as long

as they make their observations from a lawful vantage point

—— i.e., a place located outside of the curtilage.”); United States v.

Traynor

, 990 F.2d 1153, 1157 (9th Cir. 1993) (“Under Dunn and Pace

, it does not matter that officers first trespass upon property that

is obviously curtilage

. . . while investigating a tip, as long as

t he incriminating observations themselves take place outside th e

protected curtilage.”), overruled on other grounds by United States

v. Johnson , 256 F.3d 895 (9th Cir. 2001) (en banc).

23 The district court held that Jose’s consent was irrelevant

to the motion to suppress. As the two grounds that we discuss are

dispositive, we do not reach Jose’s argument that his consent to

search 420 Esperanza was invalid.

13 Amendment is not implicated. 22 As Agent Hugas was not in an open

field when he observed the canal, we must determine whether he

observed the crushe d foliage, which first prompted the search of

the canal, from a lawful vantage point.

We reject defendants’ vantage-point argument on two grounds. 23

First, the testimony presented at the hearing on the motion to

suppress shows that the agents initially observed suspicious

activity concerning the canal from their lawful vantage point

outside of the curtilage, well before the agents entered onto the

curtilage, and even further before Hugas ascended the stairs to the

balcony. Recall that Agent Hugas testified that after the white

Cavalier left the carport, Jesus pulled his Southern Union Gas24 See, e.g., United States v. Sanchez

, 689 F.2d 508, 513 (5th

Cir. 1982) (“While information supplied by an informant of unknown

reliability, standing alone, clearly does not establish probable

cause

. . ., corr oboration of that information by independent

observations (either) substantiating the details of the tip (or)

.

. . of activity reasonably arousing suspicion itself may establish

the requisite level of cause to warrant a search.”) (i nternal

citations and quotations omitted)).

25 California v. Ciraolo

, 476 U.S. 207, 211 (1986) (quoting

Katz v. United States

, 389 U.S. 347, 360 (1967) (Harlan, J.,

concurring)).

14 truck out of the driveway, parking it on the public street in front

of the canal; that Jesus placed cones in front of and behind the

truck; that he turned on the truck’s hazard lights; and that agents

watched as Jose walked to the truck, talked to Jesus at the rear of

the truck and then went back and forth into and out of the canal

approxima tely three times. Coupled with the agents’ other

surveillance observations from a lawful vantage point —— a public

street

—— and the confidential informant’s tip, the agents had “the

requisite level of cause” to search the “open field,” which is

itself bereft of Fourth Amendment protection. 24 That Agent Hugas’s

curiosity was further piqued by his subsequent view of the canal

from the balcony is of no consequence.

We also conclude independently

—— as did the district court

——

t hat defendants had no reasonable expectation of privacy in the

balcony at 420 Esperanza. “The touchstone of Fourth Amendment

analysis is whether a person has a ‘constitutionally protec ted

reasonable expe ctation of privacy.’” 2 5 Under the standard

enunciated in Katz , “[o]ur Fourth Amendment analysis embraces two26 Bond v. United States

, 529 U.S. 334, 338 (2000) (citations

and internal quotations omitted).

27 See Kee v. City of Rowlett, Tx.

, 247 F.3d 206, 212 (5th Cir.

2001).

28 United States v. Burnette

, 375 F.3d 10, 16 (1st Cir. 2004)

(quoting Vega Rodriguez v. Puerto Rico Tel. Co.

, 110 F.3d 174, 178

(1st Cir. 1997)), vacated on other grounds

, 125 S. Ct. 1406 (2005)

(vacating and remanding in light of United States v. Booker

, 125 S.

Ct. 738 (2005)).

15 questions. First, we ask whether the individual, by his conduct,

has exhibited an actual expectation of privacy; that is, whether he

has shown that he [sought] to preserve [something] as private.

. .

. Second, we inquire whether the individual’s expectation of

privacy is one tha t society is prepared to recognize as

reasonable.” 26 To show that they had a constitutionally protected

expectation of privacy, then, defendants had to demonstrate both

that they attempted to preserve something as private (subjective)

and that soc iety recognizes their expectation of privacy as

reasonable (objective). 27 Whether a person possesses a reasonable

expectation of privacy is context-specific, and “‘each case must be

judged according to its own scenario.’” 28

Here, defendants have f ailed to demonstrate that they had a

subjective expectation of privacy in the balcony at 420 Esperanza.

When testing common, or public, areas —— those areas to which the

public and others, such as law enforcement officers, have access

——

courts generall y hold that a party possesses no reasonable29 See, e.g., Burnette

, 375 F.3d at 16 (“We have held that a

tenant lacks a reasonable expectation of privacy in the common

areas of an apartment building. Such areas are exposed both to

those who have access to that area and those, including law

e nforcement officers, who may be given permission to enter that

area.” (quotations and internal citations omitted)); United States

v. Hawkins

, 139 F.3d 29, 32 (1st Cir. 1998) (“It is now beyond

cavil in this circuit that a tenant lacks a reasonable expectation

of privacy in the common areas of an apartment building.”); U nited

States v. Nohara , 3 F.3d 1239, 1242 (9th Cir. 1993) (“However, we

join the First, Second, and Eighth Circuits which have rejected

this rationale and held an apartment dweller has no reasonable

expectation of privacy in the common areas of a building whether

the officer trespasses or not.”); United States v. Acosta

, 965 F.2d

1248, 1252 (3rd Cir. 1992) (“Thus, the inner hallway was easily

accessible to tenants, visitors, solicitors, workmen and other

members of the public. On the record, defendants had no way to

exclude anyone and, therefore, could not have reasonably expected

their privacy to extend beyond their apartment door.”); U nited

Stat es v. DeWeese , 632 F.2d 1267, 1270 (5th Cir. 1980)

(“Nevertheless, in an area to which access is freely given to all

properly and lawfully within the close, it is apparent that, as to

them, a reasonable expectation of privacy does not exist in the

common area.”);

Many of these cases are commonly referred to as the

“apartment cases.” See United States v. Anderson , 154 F.3d 1225,

1232 n. 3 (10th Cir. 1998).

16 expectation of privacy and that the Fourth Amendment is thus not

implicated. 29

On the record here, defendants possessed no reasonable

expectation of privacy in the common balcony area on the second

floor abo ve the carport. The area is accessible to anyone and

everyone

—— the u pstairs tenants, visitors, solicitors, and even

law enforcement officers who might wish to question a second-floor

tenant. Indeed, the entrances to the two upstairs apartments can

be reached only via the balcony. In addition, defendants have no

means by which to exclude anyone from the second-floor balcony. As30 United States v. West , 22 F.3d 586, 591 (5th Cir. 1994).

31 United States v. Hernandez-Guevara , 162 F.3d 863, 869 (5th

Cir. 1998).

32 United States v. Haese , 162 F.3d 359, 364 (5th Cir. 1998)

(citing United States v. Skipper

, 74 F.3d 608, 612 (5th Cir.

1996)).

17 noted, the gate that leads to the carport does not restrict

pedestrian access to the property in general or to the stairs that

lead to the second floor in particular. Anyone who wishes to

proceed to the second floor of 420 Esperan za may do so freely

without hindrance and must do so by way of the stairs and the

balcony

. The conclusion is inescapable that defendants could have

possessed no reasonable expectation of privacy in the second floor

balcony from which Agent Hugas viewed the crushed foliage in the

adjac ent canal. Absent a valid expectation of privacy by

defendants, Agent Hugas was standing at a lawful vantage point when

he viewed the crushed foliage. The district court did not err when

it denied defendants’ motions to suppress.

B. Admissibility of the Handgun and the Ammunition

1. Standard of Review

We review a district court’s determination as to the

admissibility of evidence for abuse of discretion. 30 In a criminal

case, however, our standard o f review of the district court’s

evidentiary rulings is necessarily heightened. 31 If we find an

abuse of discretion in the admission or exclusion of evidence, we

review the error under the harmless error doctrine. 3 2 Under this33 See id.

18

standard, we must affirm an evidentiary ruling unless it affects a

substantial right of the complaining party. 33

2. Analysis

Agent Hugas discovered a Glo ck 9-millimeter handgun and

ammunition magazine in plain view from the balcony. They were on

a small ledge above the carport at 420 Esperanza. Defendants

insist that the distr ict court abused its discretion when it

admitted the handgun and magazine because no evidence connected it

to either appellant. Jose and Nelson point out that the evidence

was not discovered (1) inside their residence, (2) on their

persons, or (3) in an a rea within their exclusive control.

Defendants also note that the evidence was discovered outside the

second-story balcony of the t wo-story structure, on a floor

containing two other apartments occupied by third parties. Nelson

further notes tha t the Glock 9-millimeter is not the type of gun

that would fit in the Beretta gun case that the agents found in his

room.

Defendants contend that unde r Federal Rules of Evidence 403

and 404(b), the firearm, whether intrinsic or extrinsic evidence,

is inadmissible because the unfairly prejudicial effect outweighs

any probative value. The government’s only response is that the

district court properly admitted the firearm based on courts’34 See United States v. Martinez

, 808 F.2d 1050, 1057 (5th Cir.

1987).

35 United States v. Williams

, 900 F.2d 823, 825 (5th Cir. 1990)

(citing United States v. Torres

, 685 F.2d 921, 924 (5th Cir.

1982)).

36 See United States v. Royal , 972 F.2d 643, 647 (5th Cir.

1992).

37 United States v. Powers , 168 F.3d 741, 749 (5th Cir. 1999)

(citing United States v. Garcia

, 27 F.3d 1009, 1014 (5th Cir.

1994)).

19 recognition that firearms are “‘tools o f the trade’ of those

engaged in illegal drug activities.” 34

We first address whether the firearm and ammunition is

i ntrinsic or extrinsic evidence. Evidence of extraneous acts is

“‘intrinsic’ when the evidence of the other act and the evidence of

the crime charged are ‘inextricably intertwined’ or both acts are

part of a ‘single criminal episode’ or other acts were necessary

preliminaries to the crime charged.” 35 A district court may admit

intri nsic evidence to permit the jury to evaluate all the

circumstances under which a defendant may have acted. 36 Federal

Rule of Evidence 404(b) does not apply to intrinsic-act evidence. 37

We conc lude, however, that the evidence of the handgun and

ammunition is not intrinsic. There is no evidence that the handgun

and ammunition found by Hugas was “inextricably intertwined” with

the drug trafficking and possession offenses; neither was it part38 See United States v. Townsend

, No. 97-60491, 1999 WL 427597,

at *8 (5th Ci r. June 24, 1999) (opinion withdrawn from

publication).

39 F ED

. R. E VID . 404(b).

40 Hernandez-Guevara

, 162 F.3d at 870 (citing United States v.

Beechum , 582 F.2d 898, 911 (5th Cir. 1978) (en banc)).

Federal Rule of Evidence 403 provides that “[a]lthough

relevant, evidenc e may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice

. . . .

F ED

. R. E VID . 403.

20 of a single criminal episode or preliminary to the drug offenses

charged. We thus deduce that the evidence had to be extrinsic. 38

Federal Rule of Evidence 404(b)

—— which does apply to

extrinsic evidence —— states, in pertinent part:

Evidenc e of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to

show action in conformity therewith. It may, however, be

admissible for other purposes, such as proof of motive,

opportunity, intent, prep aration, plan, knowledge,

identity, or absence of mistake or accident . . . . 39

We have articulated a two-part test to determine whether a district

court properly admits extrinsic evidence : “First, it must be

determined that the extrinsic offense evidence is relevant to an

issue other than the defendant’s character. Second, the evidence

must possess probative value that is not substantially outweighed

by its undue prejudice and must meet the other requirements of Rule

403.” 40

Under Beechum , we must determine whether the evidence of the

fi rearm and ammunition is relevant to an issue other than

d efendants’ character. Before doing so, however, we must first41 Beechum , 582 F.2d at 912-13.

42 Id. at 913.

43 United States v. Molinar-Apodaca , 889 F.2d 1417, 1424 (5th

Cir. 1989).

21 decide whether the government offered sufficient proof that

defendants committed the extrinsic acts in question. 41 “If the

proof is insufficient, the judge must exclude the evidence because

it is irrelevant.” 42 Here, the undisputed testimony of Agent Hugas

revealed that, during surveillance, the agents observed Nelson

Ramirez on the second floor balcony where the gun was discovered.

Further, the firearm and ammunition were discovered in the vicinity

of the carport

—— where they were accessible by hand to anyone

standing underneath the carport, the area at which defendants

offloaded the marijuana. Although no direct evidence demonstrated

that either defendant physically handled the firearm or ammunition,

“this Court h as held that the Government is only obliged to show

that the firearm was available to provide protection to the

defendant in connection with his engagement in drug trafficking; a

showing that the weapon was used, handled or brandished in an

affirmati ve manner is not required.” 4 3 Ample circumstantial

evidence linked the handgun and am munition spatially to the

defendants and the events that transpired in the vicinity of the

carport at 420 Esperanza, viz.

, unloading marijuana from the trunk

of the Cavalier.4 4 See United States v. Beverly

, 921 F.2d 559, 563 (5th Ci r

.

1991) (holding, in context of conviction under 18 U.S.C. §

924(c)(1), that presence of guns and ammunition illustrate intent

to facilitate drug trafficking crimes).

45 See id.

46 Martinez , 808 F.2d at 1057.

22 In addition, under B eechum ’s first prong, the evidence is

clearly relevant to an issue other than defendants’ character. The

accessibility of the firearm and ammunition to anyone in or around

the carport, and Nelson’s position on the balcony near where these

items were found, inferentially illustr ate defendants’ intent to

participate in a drug trafficking crime. 44

Neither do we conclude that any unfairly prejudicial effect of

the firearm and ammunition could outweigh its probative value. We

have consistently held that firearms are “tools of the trade” of

drug traffickers. 4 5 Proximity or accessibility of firearms is

therefore highly probative of criminal intent. 46 The district court

did not abuse its discretion when it admitted evidence of the

handgun and the ammunition.

C. Jose’s Prior Convictions

At trial, Texas state parole official Cristela Dow testified

that Jose had two prior convictions, one for possession of 1,175

pounds of marijuana, for which he was assessed a six-year term of

imprisonment, and another for felonious possession of dangerous

drugs, for which he was sentenced to seven years probation. Jose

argues that under Federal Rule of Evidence 404(b), his two prior47 See United States v. Jackson

, 339 F.3d 349, 354 (5th Cir.

2003) (citing United States v. Wisenbaker

, 14 F.3d 1022, 1028 (5th

Cir. 1994)).

48 Beechum , 582 F.2d at 911.

49 Id. at 913.

23 convictions were irrelevant to the crime for which he was on trial

here. The government notified the district court that it intended

to offer evidence o f Jose’s prior convictions to demonstrate his

intent and knowledge of the instant offenses. Jose counters that

because the government offered only t he fact of the prior

convictions and the sentences assessed, these aspects are not

probative of hi s knowledge and intent. Further, Nelson insists

that the admission of Jose’s prior convictions prejudiced him

(Nelson) because they did not involve him. To determine whether

the district court properly admitted Jose’s prior convictions, we

apply the same standard of review enunciated above. 47

In deciding whether the district court abused its discretion,

we use the two-part Beechum test. First, we must conclude that the

prior convictions are relevant to an issue other than the

defendant’s character. 48 “Once it is determined that the extrinsic

offense requires the same intent as the charged offense,” the

extrinsic evidence “satisfies the first step” of Beechum

. 49 “If

offered to show intent, relevancy of the extrinsic evidence is

determined by comparing it to the state of mind of the defendant in50 United States v. Duffaut

, 314 F.3d 203, 209 (5th Cir. 2002)

(citing United States v. Gordon

, 780 F.2d 1165, 1173 (5th Cir.

1986)).

51 United States v. Thoma s , 348 F.3d 78, 85 (5th Cir. 2003);

United States v. Chavez , 119 F.3d 342, 346 (5th Cir. 1997).

52 Duffaut , 314 F.3d at 209.

53 Beechum , 582 F.2d at 911.

54 United States v. Buchanan

, 70 F.3d 818, 831 (5th Cir. 1996)

(quoting Beechum , 582 F.2d at 914).

55 See id.

24 perpetrating the respective offenses.” 50 As Jose pleaded not

g uilty, he placed his intent at issue. 5 1 Accordingly, because

Jose’s prior convic tions for possession of controlled substances

required the same intent as the federal possession and intent-todistribute crimes with which he was charged here, his prior

convictions were relevant to an issue other than his character

under Rule 404(b). 52 The first step of Beechumis satisfied.

Under the second step of Beechum , we must decide whether the

probative value of the evidence outweighs any possible unfair

prejudice. 53 “The probative value of extrinsic offense evidence

‘must be determined with regard to the extent to which the

defendant’s unlawful intent is estab l ished by other evidence,

stipulation, or inference.’” 54 As the prosecution presented little

e vidence of Jose’s intent apart from his prior convictions, the

probative value of these convictions was gr eater. 5 5 In addition,

because Jose and Nelson strenuously attacked the credibility of the56 Id.

57 Thomas

, 348 F.3d at 86; Duffaut

, 314 F.3d at 210; Buchanan

, 70 F.3d at 831.

Indeed, as to Nelson’s argument that the admission of Jose’s

prior convictions prejudiced him, the limiting instruction

specifically provid ed that the prior offenses did not pertain to

every defendant on trial.

58 United States v. Taylor

, 210 F.3d 311, 318 (5th Cir. 2000).

25 government’s informant, they “enhance[d] the probity of the prior

offense evidence by placing [their] intent and state of mind at

issue.” 56 And, because the district court issued a limiting

instruction

—— both when the evidence was admitted and again in the

final charge —— regarding the extent that the jury could consider

the prior convictions, the court reduced any likelihood of

prejudice as to both Jose and Nelson. 57 We have consistently held

that “evidence of a defendant’s prior conviction for a similar

crime is more probative than prejudicial and that any prejudicial

effect may be minimized by a proper jury instruction.” 58 We reject

defendants’ evidentiary challenge to the admission of Jose’s prior

convictions.

D. The “Deliberate Ignorance” Instruction

1. Standard of Review

We re view a challenge to a deliberate ignorance instruction

“‘using the standard of whether the court’s charge, as a whole, is

a correct statement of the law and whether it clearly instructs

jurors as to principles of law applicable to the factual issues59 United States v. Saucedo-Munoz

, 307 F.3d 344, 348 (5th Cir.

2002) (quoting United States v. Wisenbaker

, 14 F.3d 1022, 1027 (5th

Cir. 1994)).

60 United States v. Cartwright

, 6 F.3d 294, 301 (5th Cir. 1993)

(citing Glasser v. United States , 315 U.S. 60, 80 (1942)).

61 See F ED

. R. C RIM

. P. 30(d) & 52(b).

62 United States v. Miranda

, 248 F.3d 434, 443 (5th Cir. 2001).

63 The deliberate ignorance instruction read as follows:

You may find that a defendant had knowledge of a fact if

you find that the defendant deliberately closed his eyes

to what would otherwise have been obvious to him. While

knowledge on the part of the defendants ca nnot be

established merely by demonstrating that the defendants

were negligent, careless or foolish, knowledge can be

26 confronting them.’” 59 To determine whether the evidence supports

a deliberate ignorance instruction, “the court should examine the

evidence and all reasonable inferences therefrom in the light most

favorable to the government.” 60

Here, we review defendants’ objection for plain error only, as

neither defendant objected contemporaneously to the district

court’s deliberate ignorance instruction. 61 Plain error review

entails a determination (1) whether an error existed; (2) if it

did, whether it is clear and plain; (3) if it i s, whether it

affected the defen dant’s substantial rights; and (4) if it did,

whether it affects the fairness, integrity, or public reputation of

judicial proceedings. 62

2. Merits of Claim of Error

Defendants assert that the district court erred by giving the

jury an instruction regarding deliberate ignoranc e. 63 As “[t]heinferred if the defendants deliberately blinded

themselves to the existence of a fact.

64 Id. at 347-48 (citing Cartwright , 6 F.3d at 301.

65 United States v. O bejode , 957 F.2d 1218, 1229 (5th Cir.

1992).

66 United States v. Threadgill , 172 F.3d 357, 368 (5th Cir.

1999) (citing United States v. Cavin

, 39 F.3d 1299, 1310 (5th Cir.

1994)).

27 instructi on allows the jury to convict without finding that the

defendant actually was aware of the existence of illegal conduct,”

we have noted that, “[w]here, as here, the m ens rea required for

con viction is that the defendant acted ‘knowingly’ or

‘intentionally,’ a deliberate ignorance instruction creates a risk

that the jury might convict for negligence or stupidity.” 64

As a deliberate ignorance instruction could confuse the jury,

it “should rarely be given.” 65 A district court may properly issue

a deliberate ignorance instruction when the evidence demonstrates

“(1) subjective awareness of a high probability of the existence of

illegal conduct, and (2) purposeful contrivance to avoid learning

of the illegal conduct.” 66

Jose and Nelson’s defense proceeded on a theory that both

defendants were entirely unaware of any drug-related activity that

occurred at 420 Esperanza. Trail testimony of the government’s

witnesses

—— credited by the jury —— put both defendants in the

vicinity of the carport when the Cavalier arrived. The defendants

opened the gate to allow the Cavalier access to the property. The67 United States v. Moreno , 185 F.3d 465, 476 (5th Cir. 1999)

(quoting United States v. McKinney

, 53 F.3d 664, 676 (5th Cir.

1995)) (internal quotations omitted).

68 Saucedo-Munoz

, 307 F.3d at 349 (emphasis in original)

(internal citation omitted).

28 Cavalier was at 420 Esperanza for only several minutes.

Immediately after the Cavalier pulled onto the property, its trunk,

which contained the marijuana, was open, and both defendants were

present. The unloading of the marijuana therefore occurred in the

immediate vicinity and vie w of defendants. Indeed, there was

testimony from Martin Delgado and Juan Cardenas that both

defendants were present when the marijuana was unloaded and that

one of them helped. The agents also observed Jose traveling back

and forth between the carport area and the canal where the

marijuana was later found. As defendants advanced the theory that

they were unaware of any drug-related activity, the trial court did

not plainly err in delivering a deliberate ignorance instruction:

The defense of unawareness certainly could amount to a “charade of

ignorance” that the jury could have considered “as circumstantial

proof of guilty knowledge.” 67

Further, “[a]lthough our caselaw [sic] prohibits a deliberate

ignorance instruction where there is evidence of only actual

knowledge, we are unaware of any cases suggesting that a deliberate

ignorance instruction is improper where evidence may be construed

as showing either actual knowledge or contrivance to avoid learning

the truth.” 68 Our precedent thus allows a district court to issue69 See id. at 349 & n. 3 (listing cases).

70 Id.

71 United States v. Lope z , 74 F.3d 575, 577 (5th Cir. 1996

(citing Jackson v. Virginia , 443 U.S. 307, 319 (1979)).

72 Id. (citing Glasser , 315 U.S. at 80).

73 See id.

29 a deliber ate ignorance instruction alongside evidence of actual

knowledge. 69 As the evidence strongly suggests that Jose and Nelson

had actual knowledge of the unloading of the marijuana —— indeed,

that they participated in unloading it —— they, as defendants who

claimed i gnorance as a defense, “should not be able to avoid a

deliberate indifference instruction because [their] conduct might

also be construed as evincing actual knowledge.” 70 The district

court did not err when it gave the jury a deliberate ignorance

instruction.

E. Sufficiency of the Evidence

1. Standard of Review

We must affirm a conviction in the face of a challenge to the

sufficiency of the evidence “if a rational trier of fact could have

found that the evidence established the essential elements of the

offense beyond a reasonable doubt.” 71 We consider the evidence, all

reasonable inferences drawn from that evidence, and all credibility

determinations in the light most favorable to the non-moving party,

here, the government. 72 We neither weigh the evidence nor assess

the credibility of the witnesses. 73 “The evidence need not exclude74 Id. (citing United States v. Salazar

, 66 F.3d 723, 728 (5th

Cir. 1995)).

75 Id. (quoting United States v. Sanchez

, 961 F.2d 1169, 1173

(5th Cir. 1992)) (emphasis in original).

76 United States v . Brackett , 113 F.3d 1396, 1399 (5th Cir.

1997).

77 Cartwright , 6 F.3d at 299.

30 every reasonable hypothesis of innocence or be wholly inconsistent

with every conclusion except that of guilt, and the jury is free to

choose among reasonable constructions of the evidence.” 7 4 If the

evidence lends equal support to a finding of guilt or innocence,

however, we must reverse because under these circumstances, “a

reasonable jury must necessarily entertain a reasonable doubt.” 75

2. Merits of the Claim of Insufficient Evidence

To prove the existence of a conspiracy to possess with the

intent to d istribute marijuana under 21 U.S.C. § 846, the

government must prove three elements beyond a reasonable doubt: (1)

that an agreement existed to violate the federal narcotics laws;

(2) that the defendant knew of the existence of the agreement; and

(3) that the defendant voluntarily participated in the agreement. 76

Proof that the defendants possessed marijuana with the intent

to distribute it requires the government to show (1) possession of

the controlled substance, (2) knowledge, and the (3) requisite

i ntent to distribute. 7 7 Proof that defendants aided and abetted

the crime of possession of marijuana with the intent to distribute

it pursuant to 18 U.S.C. § 2, requires the government to show that78 United States v. Sorrells

, 145 F.3d 744, 753 (5th Cir. 1998)

(quoting United States v. Gallo

, 927 F.2d 815, 822 (5th Cir.

1991)).

79 United States v. Salazar

, 66 F.3d 723, 729 (5th Cir. 1995).

80 Id.

81 United States v. Gonzales

, 121 F.3d 928, 935 (5th Cir. 1997)

(quoting United States v. Maltos

, 985 F.2d 743, 746 (5th Cir.

1992)) (emphasis added).

82 Id. (qu oting U nited States v. Cardenas

, 9 F.3d 1139, 1157

(5th Cir. 1993)) (emphasis added).

31 “‘(1) the defendant associated with the criminal venture, (2)

participated in the venture, and (3) sought by action to make the

venture succeed.’” 78 “Association means that the defendant shared

in the criminal intent of the principal.” 79 “Participation means

that the defendant engaged in some affirmative conduct designed to

aid in the venture.” 80 For both intent to distribute and aiding and

abetting, proof must be beyond a reasonable doubt.

Defendants’ principal challenges to the suffici ency of the

evidence concern the (1 ) knowledge/intent, and (2) possession

elements of the offenses. Defendants correctly note that

“‘presence at the crime scene or close associatio n with

conspir ators, s tanding alone

, will not support an inference of

participation in the conspiracy.’” 81 It is equally welle stablished, however, that “presence or association is a factor

that, along with other evidence

, may be relied upon to find

conspiratorial activity by the defendant.” 8283 Gonzale z , 121 F.3d at 935 (“The agreements, a defendant’s

guilty knowledge and a defendant’s participation in the conspiracy

32 As to the conspiracy count, the confidential informant, Martin

Delgado, explicitly testified that the defendants opened the gates

of 420 Esperanza for the white Cavalier and that Nelson assisted in

the unloading of the marijuana from the car’s trunk. Juan

Cardenas, Delgado’s cousin and the other passenger in the Cavalier,

testified to the same facts. Agents Hugas and Kristin Rosenbeck

testified that both Jose and Nelson opened the gate at 420

Esperanza. Agent Martinez, the passenger in Hugas’s vehicle,

testified that the trunk of the Cavalier was open as their

surveillance vehicle passed by 420 Esperanz a moments after the

vehicle parked under the carport.

Delgado also testified that Nelson and Jose were present when

the bundles were unloaded from the trunk and that the bundles

smelled of marijuana. Cardenas too testified that both defendants

were present at this time, and that Delgado and defendants

offloaded the marijuana.

Agents observed Jose repeatedly entering and exiting the canal

in which the agents eventually discovered the marijuana. Evidence

admitted at trial revealed that the packages discovered in the

canal were the same bundles that defendants had helped unload from

the Cavalier. When all this evidence is viewed as a whole, it is

more than sufficient to support the convictions of both Jose and

Nelson on the conspiracy count. 83all may be inferred from the development and collocation of

circumstances.” (internal quotations omitted)).

84 830 F.2d 41 (5th Cir. 1987).

85 See id. at 45.

86 United States v. Molinar-Apodaca

, 889 F.2d 1417, 1423 (5th

Cir. 1989) (citing United States v. Vergara , 687 F.2d 57, 61 (5th

Cir. 1982)).

33 Defendants nevertheless rely heavily on United States v.

Gardea Carrasco 84 as support for their argument that the conspiracy

c onviction cannot stand. In G ardea Carrasco

, we reversed one

defendant’s conspiracy conviction because no evidence was adduced

at trial that he knew that the suitcases

—— which he unloaded from

a truck an d transferred to a plane —— were full of controlled

substances. 85 Gardea Carrasco is inapposite. Here, the record

contains sufficient evidence that defendants knew that the bundles

that they unloaded from the Cavalier contained controlled

substances. Indeed, Delgado testified that the bundles smelled of

marijuana. Moreover, the jury could have reasonably concluded that

defendants knew of the controlled substances, as they purposefully

hid the bundles in t he canal outside their home. The obvious

inference is that if the bundles had contained nothing but lawful

substances, there would have been no reason to hide them in the

canal.

Regarding the possession count, “[p]ossession may be actual or

constructive and may be joint among several defendants.” 86 As the

knowledge element in a possession case will rarely be supported by87 United States v. Garza , 990 F.2d 171, 174 (5th Cir. 1993).

88 Molinar-Apodaca

, 889 F.2d at 1423 (citing United States v.

Wilson , 657 F.2d 755, 760 (5th Cir. 1981)).

89 United States v. Moreno

, 185 F.3d 465, 471 (5th Cir. 1999).

90 Id.

34 direct evidence, 87 we have recognized that a possessio n count may

be established by circumstantial evidence alone. 88 Knowledge may

also be inferred from “control over the location in which [the

drugs] are found.” 89 Further, we have recognized that “the intent

to distribute may be inferred from the value and quantity of the

substance possessed.” 90

Having closely reviewed the entire record, we easily conclude

that the government adduced evidence at trial sufficient to prove

beyond a reasonable doubt that defenda nts had (1) the requisite

knowledge of the marijuana and (2) the intent to distribute it, to

support their convictions on the possession count. As noted, both

Delgado and Cardenas testified

—— testimony credited by the jury

——

that both defendants were present during the unloading of the

marijuana. Defendants exercised control over the canal where the

marijuana was found —— indeed, they own to the center line of the

canal. In addition, the jury could have reasonably inferred that

defe ndants had the requisite intent to distribute the marijuana

because of the vast quantity found by the agents. We reject

defendants’ challenge to the sufficiency of the evidence.

F. Sentencing91 United States v. Mares

, 402 F.3d 511, 520 (5th Cir. 2005).

35 Defendants each raise two challenges to the sentences that the

district court imposed. They first raise an A pprendi /Sixth

Amendment challenge to the district court’s calculation of their

base offense levels. Defendants argue that the district court

should have calculated their base offense levels at 20, for an

offense in volving between 40 to 60 kilograms of marijuana, as

opposed to 24, for an offense involving between 80 and 100

kilograms of marijuana. They base this challenge on the alleged

conflict between the drug amounts specified in the indictment and

those in the jury verdict form, arguing that the jury found them

guilty of conspiring to possess and of possessing with the intent

to distribute only 50 kilograms of marijuana as stated on the

verdict form. Defendants also challenge the district court’s

increase of their base offense level by two levels for possession

of a firearm in connection with the offense under U.S.S.G. §

2D1.1(b)(1).

Defendants co ncede that they lodged no Sixth Amendment

objection to their sentences in the district court. Accordingly,

our review is for plain error. 91 Again, plain error review entails

a determination whether (1) an error existed; (2) the error was

clear and plain; (3) the error affected the defendant’s substantial92 United States v. Miranda

, 248 F.3d 434, 443 (5th Cir. 2001).

93 See Mares , 402 F.3d at 521-22.

94 See id.

95 Defendants contend that because the district court sentenced

them at the bottom of the Guidelines range, it would have sentenced

them differently had it considered the G uidelines advisory. We

have rejected this argument before and do so again now. S ee United

States v. Hernande z-Gonzalez , 405 F.3d 260 (5th Cir. 2005)

(rejecting defendant’s argu ment that sentencing judge would have

sentenced him differently because, inter alia

, judge sentenced him

at bottom of Guidelines range); see also United States v. GarciaGil

, 133 Fed. Appx. 102 (5th Cir. 2005) (unpublished) (“Therefore,

merely showing a sentence at the bottom of the applicable guideline

36 rights; and (4) the error affected the fairness, integrity, or

public reputation of judicial proceedings. 92

Here, plain error exists

—— as we have held in all

Apprendi / Booker challenges —— so we must determine whether the

error affected defendants’ substantial rights. 9 3 To demonstrate

that the district court’s imposition of their sentences affected

their substantial rights, defendants must show that the sentencing

judge

—— proceeding under an advisory r ather than a mandatory

guidelines regime

—— would have arriv ed at a significantly

different result. 94

Defendants have made no such showing. They point to nothing

in the record to indicate that the district court would have

sentenced them any d ifferently had it sentenced them under an

a dvisory guidelines regime. Neither have we found any evidence

that it would have done so. Defendants have failed to carry their

burden. 95range, as Garcia-Gil does, is insufficient to show plain error in

his sentence.”).

We also note that defendants’ challenge to their base offense

level on drug quantity is specious. The indictment specifically

alleged that defendants were guilty of conspiring to possess and of

possessing with the intent to distribute a drug quantity of “more

than 50 kilograms, that is, approximately 82.25 kilograms (180.95

pounds) of marihuana.” Although the verdict form does not specify

82.25 kilograms of marijuana, it did state that the jury found

defendants guilty of conspiring to possess and of possessing with

the intent to distribute “ at least 50 kilograms of marihuana, as

charged in the indictment.” As the indictment specified the amount

of 82.25 kilograms of marijuana, it was not plain error for the

district court to use that quantity in its determination of

defendants’ base offense levels.

96 United States v. McPhail

, 119 F.3d 326, 327 (5th Cir. 1997).

97 —— U.S. ——, 125 S. Ct. 1254, 1260 (Mar. 7, 2005).

37 Defendants nevertheless assert that our plain-error standard

of review enunciated in Mares “flies in the face of United States

v. Booker . . . and was effectively overruled three days after it

was decided [by] Shepard v. United States .” These arguments are

unavailing. Mares is the law of this circuit until either the en

banc court or the United States Supreme Court det ermines

otherwise. 96 Neither did the holding in S hepard that under the

Armed Career Criminal Act, a district court could not use a police

report to enhance a sentence, 97 affect our holding in Mar es that,

when a defendant fails to lodge a Sixth Amendment objection in

district court, we review for plain error. Defendants’ arguments

are unavailing.

III. CONCLUSION38

We reject de fendants’ challenges to their convictions and

sentences. The judgment of the district court is, in all respects,

AFFIRMED.