*Chief Judge of the Western District of Louisiana, sitting

by designation.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________

92-5593

__________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

OSCAR MARTINEZ-MONCIVAIS,

Defendant-Appellant.

__________________________________________

Appeal from the United States District Court

for the Western District of Texas

__________________________________________

(February 11, 1994)

Before GARWOOD and BARKSDALE, Circuit Judges, and SHAW* Chief

Judge.

SHAW, Chief Judge:

O P I N I O N

In May 1990, a grand jury sitting in the San Antonio Division

of the Western District of Texas returned a 24-count indictment

charging 36 individuals with participating in a far-reaching

criminal enterprise involving the importation, transportation, and

distribution of substantial amounts of illegal drugs. The

appellant, Oscar Martinez-Moncivais ("Martinez"), was specifically
2

charged in Count Three of the indictment with conspiracy to possess

with intent to distribute marijuana and cocaine, and in Count Four

with conspiracy to import with intent to distribtue marijuana and

cocaine, all in violation of 21 U.S.C §§ 846 and 841(a)(1). The

conspiracy began in 1983 and continued until the date of the

superseding indictment in May of 1990. After a trial involving

Martinez and two other defendants, the jury found Martinez not

guilty on Count Four, but guilty on Count Three for conspiracy to

possess with intent to distribute in excess of 1,000 kilograms of

marijuana, and in excess of 5 kilograms of cocaine. On May 11,

1992, the district court judge sentenced Martinez under the

sentencing guidelines to imprisonment for 262 months, supervised

release for five years, and fined him $10,000 exclusive of the

special assessment.

I. FACTS

Oscar Martinez was charged with transporting large amounts of

marijuana and cocaine for an illegal narcotics enterprise known as

the Salinas organization. The organization was headed by Alberto

Salinas-Trevino (Salinas) and his brother Ramiro Salinas, and its

interests stretched from Mexico into the United States.

The evidence against Martinez at trial came primarily from

Government witness, Francisco De Leon Ortiz (De Leon). De Leon

worked as the personal driver for another of Alberto Salinas's

brothers, Baldemar Salinas, and as a warehouse worker and truck

driver for the Salinas organization. De Leon testified that he

first met Martinez when Martinez drove a tanker truck full of lime
3

to the Span Tile warehouse where De Leon was working. The Span

Tile warehouse, according to the evidence at trial, was one of the

centers for the Salinas organization's importation and distribution

of illegal narcotics. De Leon testified that customarily, workers

at that warehouse would extract the lime from such incoming tanker

trucks and then unload thirty-five gallon steel barrels that had

been buried in the lime inside hidden compartments. The marijuana

and cocaine were contained in these barrels. 

According to the evidence, from 1986 to the summer of 1987,

Martinez transported drug-filled barrels inside hidden compartments

in lime-filled trucks to the warehouse and picked up the barrels in

trailers and transported them elsewhere. De Leon and others would

unload the barrels from the hidden compartments of the tanker

trucks driven by Martinez. Martinez was not directly involved in

either the loading or unloading of the barrels into the secret

compartments. He was, however, one of only four or five drivers

making deliveries to and from the Span Tile warehouse during the

period of time that Martinez worked as a truck driver for the

Salinas organization. There was additional testimony that Martinez

worked directly for Alberto Salinas. 

There was further testimony that no one at the warehouse ever

did any business concerning tiles. The tanker trucks that arrived

contained drug-filled barrels buried in lime, and the trucks that

left the warehouse carried drugs. No tiles were manufactured,

stored, or sold at the Span Tile warehouse.

Martinez's defense to the charges was that although he did
4

drive some of the trucks loaded with marijuana and cocaine, he had

no knowledge that the trucks were carrying drugs because he was

never present when the trucks were being loaded and unloaded, and

because he always kept to himself, never talking to anyone at the

warehouse about the business. The jury did not believe this

defense and found sufficient evidence to convict Martinez on one

count of conspiracy to distribute narcotics.

II. DISCUSSION

Martinez appeals the decision of the jury in this case, as

well as certain rulings made by the district court judge, and the

sentence that the judge imposed. We will address each argument

that Martinez raises on appeal.

A. Sufficiency of the Evidence

Martinez first contends that the weight of the evidence does

not support the jury's verdict finding him guilty of conspiracy.

As a reviewing court, we must examine the evidence in the light

most favorable to the verdict. United States v. Ayala, 887 F.2d 62,

67 (5th Cir. 1989). We will affirm a verdict "if a rational trier

of fact could have found the essential elements of the offense

beyond a reasonable doubt." Id., quoting U.S. v. Palella, 846 F.2d

977, 981 (5th Cir.), cert. denied, 488 U.S. 863 (1988). In this

particular case, we will affirm the jury's determination if there

was sufficient evidence for us to conclude that it was not

irrational for the jury to have found that the Government proved

the elements of the crime charged beyond a reasonable doubt.
5

To convict a defendant of conspiracy to distribute narcotics

in violation of 21 U.S.C. §§ 841(a)(1) and 846, the Government must

prove three elements of the crime beyond a reasonable doubt: 1)

that there was an agreement between two or more persons to violate

the narcotics laws; 2) that the accused knew of the agreement or

conspiracy; and 3) that he voluntarily joined in the conspiracy.

United States v. Singer, 970 F.2d 1414, 1418 (5th Cir. 1992);

United States v. Rodriquez-Mireles, 896 F.2d 890, 892 (5th Cir.

1990). The required elements of a narcotics conspiracy need not be

proved by direct evidence but may instead be established solely by

circumstantial evidence. Ayala, 887 F.2d at 67; United States v.

Wright, 797 F.2d 245, 253 (5th Cir. 1986). 

Martinez contends that, based on the circumstantial evidence

that the Government presented at trial, no rational jury could have

reasonably inferred either his knowledge of the existence of drugs

in the trucks he was driving or his voluntary participation in the

conspiracy. Absent adequate proof establishing those two elements

of the crime, Martinez correctly argues, the evidence would not

support the jury's verdict finding Martinez guilty of violating

Sections 841(a)(1) and 846 of Title 21.

Concerning the second element of the crime, appellant's

knowledge of the narcotics conspiracy, Martinez argues that as a

truck driver for the Salinas organization he had been merely

present at the center of the Salinas drug import/export business.

He contends that because the drugs were shipped in barrels that

were placed into hidden compartments inside the truck's trailer and
6

then covered with lime, he did not know that he was transporting

drugs -- that he thought he was simply hauling lime. He argues

that because there was no evidence that he ever witnessed the drugs

being loaded or unloaded from his truck at the Span Tile warehouse

he was therefore unaware that he was transporting drugs. In other

words, Martinez maintains that his mere proximity to criminal

activity is insufficient evidence of his knowledge of, or his

participation in, the conspiracy. Martinez is only partially

correct. In United States v. Maltos, we said:

mere presence at the crime scene or close association

with conspirators, standing alone, will not support an

inference of participation in the conspiracy. 985 F.2d

743, 746 (5th Cir. 1992)(emphasis added).

In this case, Martinez's presence at the center of the criminal

activity does not stand alone as the only evidence of his knowing

participation in this conspiracy. There are several other facts

that when added to Martinez's presence provide ample evidence to

support the jury's verdict finding him guilty of violating 21

U.S.C. §§ 841(a)(1) and 846. 

First, Martinez was "merely present" at the center of the

conspiracy's criminal activity at the warehouse on more than an

isolated or random occasion. He was "merely present" at that

warehouse making deliveries as often as once or twice a week for

the better part of a year. The cases Martinez cites in support of

his "mere presence" argument involve defendants whose presence at

the scene of criminal activity occurred on isolated or random

occasions. See United States v. Skillern, 947 F.2d 1268, 1274 (5th

Cir. 1991); United States v. Blessing, 727 F.2d 353 (5th Cir.
7

1984). The implicit rationale behind the "mere presence" argument

is the theory that there may often be innocent parties who on

occasion unwittingly associate with guilty parties at the scene of

their criminal activity. See United States v. Fitzharris, 633 F.2d

416, 423 (5th Cir. 1980). So we have said that it is irrational

for a trier of fact to infer from a person's mere random presence

alone that the person was a knowing participant in the conspiracy.

See United States v. Tolliver, 780 F.2d 1177, 1182 (5th Cir. 1986).

In this case, however, Martinez was one of only a handful of

drivers that the Salinas organization used to make deliveries to

and from the Span Tile warehouse. The evidence showed that these

deliveries and pickups were made by the drivers on the average of

two to three times per week. This is not the type of "mere

presence" with which the courts in Blessing and Skillern were

concerned. 

Second, Martinez was entrusted with transporting millions of

dollars worth of drugs. Other circuits have held that "it is

reasonable for a jury to conclude that in the course of

transporting millions of dollars of readily marketable marijuana

through channels that should lack the protections of organized

society, a prudent smuggler is not likely to suffer the presence of

unaffiliated bystanders." See United States v. Cruz-Valdez, 773

F.2d 1541, 1547 (11th Cir. 1985), cert. denied sub nom. ArizaFuentas, 475 U.S. 1049, 106 S.Ct. 1272, 89 L.Ed.2d 580 (1986). Put

another way, reasonable jurors could conclude that Salinas would

not have entrusted millions of dollars in each truckload of drugs
8

to an unknowing, innocent driver. The jury could reasonably

conclude that Salinas would have considered the risk to be far too

great that such a driver, if he did discover the hidden drugs on

one of his many trips, would inform the authorities, or perhaps try

to sell the drugs himself, depriving Salinas of the millions of

dollars in profits. 

Third, the evidence in this case shows that there was never a

legitimate business operating at the Span Tile warehouse where

Martinez made his frequent pickups and deliveries. The evidence

shows that no one working at the Span Tile warehouse conducted any

business concerning tiles. Moreover, the warehouse facility was

not easily accessed. There was a guarded gate that had to be

opened before any of the trucks could enter the facility -- another

sign that the jury could infer was inconsistent with the operation

of a legitimate business.

Another fact that was inconsistent with Martinez's defense

that he was merely an unknowing driver was that the head of the

Salinas organization, Alberto Salinas, purchased a new passenger

truck for Martinez as a gift. Although Martinez maintained that

the truck was not a gift, and that he would have paid Salinas back

for it, a jury could reasonably infer that in a normal business

relationship, an hourly-wage truck driver would not ordinarily

receive such an extravagant gift or bonus from his employer.

Finally, there was also testimony that Martinez had agreed on

the spur of the moment to drive a truckload of "lime" from Texas to

California immediately. He agreed to do so despite the fact that
 

1 According to the record, Salinas had received a tip

that federal agents may raid the Span Tile warehouse. Two of his

people immediately loaded the drugs from the warehouse into a

trailer. The next day Salinas and others met at a McDonald's

restaurant, while Martinez waited outside. After the meeting

they asked Martinez to transport the untagged trailer to

California immediately. There was no evidence at trial of any

particularly dangerous shortage of lime in California that would

have necessitated such an immediate shipment.

9

Salinas's decision and request was made outside a McDonald's

restaurant in response to an emergency situation,1 and even though

the trailer Martinez was to haul did not have a license plate.

With regard to this particular trip, Mario Salinas's personal

notes, which were his records of where his trucks were going and

which were introduced at trial, contained the notation "one, Oscar"

with the date of the trip to California, "7/25/87," and a reference

to "polvo," which means "powder." On this same trip, Martinez was

ticketed by the California Highway Patrol for failing to keep a

logbook on that trip, as required by law, and as Martinez regularly

did on his trips, according to the testimony of his wife.

In summarizing, then, the issue of the sufficiency of the

evidence in this case, mere presence at the scene of criminal

activity is insufficient evidence to support a conviction for

participation in a narcotics conspiracy when such evidence stands

alone. When, as here, the defendant's presence is more than

isolated or random and is considered along with the other evidence

presented, we cannot say that the jury was irrational in finding

Martinez guilty of knowing, voluntary participation in the

narcotics conspiracy alleged in this indictment. See United States

v. Rodriguez-Mireles, 896 F.2d 890, 893 (5th Cir. 1990). The
10

combined effect of all of the circumstantial evidence allowed the

jury to infer that Martinez had not been consistently duped into

unwittingly transporting illegal drugs. The evidence presented was

sufficient to show that Martinez had a subjective awareness of the

high probability that he was involved in illegal conduct. See

United States v. Stouffer, 986 F.2d 916, 925 (5th Cir. 1993). The

jury had ample evidence to conclude that Martinez was a knowing and

voluntary participant in the Salinas organization's drug

distribution business.

B. Propriety of the Jury Trial Proceedings

Martinez also raises several issues on appeal concerning the

district court judge's handling of particular aspects of the trial

proceeding. Specifically, Martinez claims that jury misconduct

occurred during deliberations that necessitated the judge's

granting his motion for a new trial; that mid-trial publicity

concerning the voluntary absence of a co-defendant prejudiced his

defense and required a voir dire of jurors; and that the judge

improperly answered a question from the jury by commenting on the

evidence. 

Martinez's contention that there was jury misconduct in this

case is wholly without merit. We review the trial court's

decisions on this issue under the abuse of discretion standard.

Tanner v. United States, 483 U.S. 107, 117, 107 S.Ct. 2739, 2746,

97 L.Ed.2d 90 (1987); United States v. Khoury, 539 F.2d 441, 443

(5th Cir. 1976), cert. denied, 429 U.S. 1040 (1977). 
 

2 Other circuits have held testimony or affidavits of

jurors to be incompetent to show a jury's misinterpretation of

instructions. See Farmers Coop. Elev. Ass'n. v. Strand, 382 F.2d

224, 230 (8th Cir. 1969). In Tanner v. United States, the

Supreme Court noted that the Senate specifically rejected a

version of Federal Rule of Civil Procedure 606(b) that would have

permitted the impeachment of verdicts by inquiry into what

happened in terms of conduct in the jury room. 483 U.S. at 123,

citing S. Rep. No. 93-1277, p. 13 (1974).

 

3 Martinez argues that "external influences" and

"extraneous prejudicial information" are different concepts under

Federal Rule of Civil Procedure 606(b). He suggests that

external influences generally include contacts between lawyers or

parties to the case and jurors, threats on jurors, and so forth. 

11

In this case, one of the jurors stated in a post-trial

affidavit that two other jurors suggested that if the defendant had

been innocent he would have taken the stand in his own defense.2

Outside of the narrow exception that arises when there is evidence

of outside influences on a jury, a court should adhere to the

common-law rule against admitting juror testimony to impeach a

verdict. See id., citing McDonald v. Pless, 238 U.S. 264, 267

(1915); Hyde v. United States, 225 U.S. 347, 384 (1912). In 1915,

the Supreme Court stated the rationale behind this rule:

[L]et it once be established that verdicts solemnly made

and publicly returned into court can be attacked and set

aside on the testimony of those who took part in their

publication and all verdicts could be, and many would be,

followed by an inquiry in the hope of discovering

something which might invalidate the finding.... The

result would be to make what was intended to be a private

deliberation, the constant subject of public

investigation -- to the destruction of all frankness and

freedom of discussion and conference. McDonald v. Pless,

238 U.S. at 267.

Martinez correctly states that a trial court must hold an

evidentiary hearing when a defendant shows that external

influences3 were brought to bear on the jury's deliberative
Extraneous prejudicial information, he argues, is a broader

concept embracing "more than extrarecord material brought to the

jurors' attention by outside sources or through inadvertence." 

The cases he cites in support involve situations in which the

jurors bring outside information into deliberations themselves.

See, e.g., In re Beverly Hills Fire Litigation, 695 F.2d 207 (6th

Cir. 1982); United States v. Castello, 526 F.Supp. 847 (W.D.Tex.

1981). These cases usually involve tests or experiments that

jurors had conducted themselves to help them evaluate the

evidence, juror visits to the scene of the alleged accident, and

so on. Even if we were to agree that the drafters of 606(b)

intended external influences and extraneous prejudicial

information to be separate concepts, a finding which we do not

make, the alleged juror misconduct in this case does not rise to

the level of extraneous prejudicial information as defined by the

appellant. There is no evidence that the jurors in question did

anything outside of the courtroom, such as talking to a lawyer or

doing legal research, that would have led them to make the

statement concerning the appellant's not testifying in his own

defense.

12

process. In this case, however, the jury did not encounter

improper external influences that would necessitate an evidentiary

hearing. See United States v. Duzac, 622 F.2d 911, 913 (5th Cir.),

cert. denied, 449 U.S. 1012 (1980). In the same affidavit, the

affiant states that other jurors reminded the jury of the judge's

instructions that they could not take into account Martinez's

decision not to testify in his defense. The affiant went on to

state that two jurors' statements did not weigh heavily in the

jury's deliberative process and were not a basis for the jury's

decision to find Martinez guilty. Based on these facts, it is

clear that the judge did not abuse his discretion in determining

that the information contained in the affidavit was not an adequate

basis on which to grant Martinez's motion for a new trial based on

a claim of jury misconduct.

Similarly, Martinez argues that the district judge erred in
13

denying Martinez's request for individual voir dire of the jurors

regarding the effects upon the jury of mid-trial publicity

concerning a co-defendant's voluntarily absenting himself. Voir

dire of the jurors is necessary in such circumstances only if

serious questions of possible prejudice could arise because of the

trial publicity. See United States v. Aragon, 962 F.2d 439, 444

(5th Cir. 1992). The district court must perform a two-step

inquiry to determine whether such serious questions exist. See

United States v. Herring, 568 F.2d 1099, 1104-05 (5th Cir. 1978).

First, the court must look at the nature of the media coverage, and

determine whether it raises serious questions of possible

prejudice. Id. Factors influencing the first inquiry include the

timing of the media coverage of the trial proceedings, the nature

of the material disseminated, and its potential effect on legal

defenses. Aragon, 962 F.2d at 443. Second, the court must weigh

the likelihood that the damaging material has in fact reached the

jury. Id. Factors influencing the second inquiry include the

significance of the media coverage and the nature, number, and

regularity of warnings from the judge against viewing the coverage.

Id.

At the outset of the trial, the judge admonished the members

of the jury to avoid reading or listening to any media coverage

that they may encounter concerning the trial. After the codefendant disappeared, the judge granted Martinez a four-day delay

to give his attorney an opportunity to find him. When that proved

unsuccessful, the judge then admonished the jury not to consider
 

4 In United States v. Manzella, we affirmed the

defendant's conviction despite the trial court's failure to voir

dire the jury on grounds that while the media account of the

defendant's prior conviction was prejudicial, the chance of its

actual influence over the jury's decision-making process was

minute. 782 F.2d 533, 543 (5th Cir. 1986).

14

the co-defendant's absence as evidence of the guilt or innocence of

any other defendant. In this case, the news media had merely

publicized an issue that the jurors had already been informed of by

the judge himself -- that one of the defendants had absented

himself. In other words, even if jurors defied the judge's

instructions and read or heard media accounts of the co-defendant's

disappearance, there was no evidence that they would have learned

much more than what the judge explained to them when he told them

about the co-defendant's "voluntary absence" and admonished them

that it was to have no bearing on their view of the remaining

defendants' guilt or innocence. Therefore, Martinez failed to

establish the first element of the Herring test -- the potential

for prejudice to his defense as a result of the publicity. Because

the judge did not find that there was a potential for prejudice

caused by the media publicity concerning the other defendant's

absence, he was not required to address the second part of the

inquiry in order to determine that there were no serious questions

of possible prejudice that would require a voir dire of the jury.4

 Martinez's final contention in this area of the trial

procedure itself is that the trial court judge erred by improperly

commenting on the evidence in its answer to a question from the

jury. In that question, the jury asked:
 

5 Nothing in the record or in appellant's briefs

indicates that the government's notes regarding Cardenas's

testimony were inaccurate or incorrect.

15

May we have information concerning Government's Exhibit

84-A, 84-C, the Rolodex card? Where was the card

found?

After consultation with both sides, the court responded, over

defense counsel objection, and based on the Government's notes of

Customs Agent, Raul Cardenas's, testimony:

The testimony of November 14, 1991 of Raul Cardenas, U.S.

Customs Agent, during his testimony 84-A and 84-C were

found inside the van at the time of the arrest of

Margarito Flores and John Kritzer...on July 24, 1987.

Martinez claims that this response was an improper comment on the

evidence because the judge told the jury where Cardenas found the

exhibits and based his answer on the recordation of Cardenas's

testimony as supplied by the Government.5 By merely reciting one

portion of the trial testimony, however, in response to a narrow,

factual question from the jury, the court was not endorsing the

testimony as correct or incorrect, but was merely recounting what

the witness had said about where the cards were found. The jury

could decide whether or not to believe that witness's testimony,

just as they could evaluate the credibility of testimony from all

of the witnesses on both sides in the case. We cannot therefore

say that the district court erred in its response to the question

from the jury in this case.

C. Sentencing Guidelines Issues

Martinez also raises several issues concerning the sentence

the district court judge imposed. Martinez first argues that the
16

sentencing guidelines were not applicable to his case. He suggests

that because his last overt act in furtherance of the conspiracy

occurred in July of 1987, four months before the sentencing

guidelines became effective on November 1, 1987, the judge should

not have applied the guidelines to this case. This contention is

entirely without merit. The jury convicted Martinez for his

participation in a conspiracy that, according to the superseding

indictment charging Martinez, remained ongoing into 1990.

Conspiracy is a continuing offense, and this court has affirmed

application of the guidelines to a defendant who, while not

participating in overt acts of the conspiracy after the guidelines

took effect, failed to take affirmative actions to withdraw from a

conspiracy that remained ongoing after the guidelines became

effective. See United States v. Puma, 937 F.2d 151, 158 (5th Cir.

1991), cert. denied, 112 S.Ct. 1165 (1992). The United States

Supreme Court defined such "affirmative acts" as those acts that

are "inconsistent with the object of the conspiracy and [that are]

communicated in a manner reasonably calculated to reach coconspirators...." United States v. U.S. Gypsum Co., 438 U.S. 422,

464-65, 98 S.Ct. 2864, 2887-88, 57 L.Ed.2d 854 (1978). Martinez

took no such affirmative actions in this case, and thus remains

responsible as a co-conspirator for the all of the acts charged to

the conspiracy, which continued into 1990. There was therefore no

retroactive application of the sentencing guidelines to Martinez in

this case. The district court correctly looked to the sentencing

guidelines in sentencing Martinez.
17

The appellant also claims that the district court erred in its

sentence by miscalculating Martinez's criminal history category.

The district court judge's calculation of a defendant's relevant

criminal history category is a finding of fact that we review for

clear error. See U.S. v. Mejia-Orosco, 867 F.2d 216, 221 (5th Cir.

1989). A court's factual finding is not clearly erroneous if it is

plausible in light of the record read as a whole. United States v.

Sanders, 942 F.2d 894, 897 (5th Cir. 1991).

Martinez claims that the district court miscalculated his

relevant criminal history category under U.S.S.G. § 4A1.2(a)(2), by

counting two of his prior convictions as separate convictions

rather than as "related cases" which under the guidelines would

only be counted as a single prior conviction. United States

Sentencing Commission, Guidelines Manual, § 4A1.2(a)(2)(Nov. 1993).

Martinez contends that because the two cases were set on the

sentencing docket for the same day, and were tried together with

the involvement of the same judge, prosecutor, and defense

attorney, that they are related cases that should only count as one

prior conviction. In truth, however, the record indicates that

there were two separate offenses. On February 28, 1977, Martinez

was convicted of possession with intent to distribute marijuana and

was sentenced to probation. In June of 1977, he was convicted for

being a felon in possession of a firearm. Because of this

subsequent conviction, Martinez's probation for the first offense

had to be revoked. It was the revocation of Martinez's probation

for the prior marijuana conviction that was scheduled for the same
 

6 The 1987 version of the Sentencing Guidelines are

actually more generous to Martinez than the current Guidelines,

which would have placed him at an offense level of 40 for any

18

day that his sentence was imposed on the conviction for illegal

possession of a firearm. In effect then, there were three prior

sentences. Martinez was initially sentenced to probation for his

original marijuana conviction. Several months later, after he was

convicted on the subsequent firearms charge, he was sentenced both

for the possession of a firearm, and for the violation of his

probation on the marijuana conviction. The district court did not

therefore err in counting these two offenses as separate

convictions and calculating Martinez's criminal history as a

category IV rather than a category III.

The appellant also contends that the lower court erred in

calculating Martinez's relevant conduct under the sentencing

guidelines by using an incorrect quantity of drugs as the figure on

which to base its calculation. Appellant argues that the court

should have considered only the equivalent of 174,000 kilograms of

marijuana in calculating his offense level. The district court has

broad discretion in considering the reliability of the submitted

information regarding the quantities of drugs involved. United

States v. Kinder, 946 F.2d 362, 366 (5th Cir. 1991). We will

overrule the factual findings of the district court on sentencing

issues only if such findings are clearly erroneous. Id. In this

case, we need not address whether the district court improperly

used any amounts in excess of 174,000 kilograms. According to the

1987 version of the Sentencing Guidelines,6 under which Martinez
amount of drugs between 100,000 and 300,000 kilograms. U.S.S.G. §

2D1.1(c)(2)(1993).

19

was sentenced, anything over 10,000 kilograms of marijuana would

result in the highest offense level at the time -- 36. United

States Sentencing Commission, Guidelines Manual, § 2D1.1 (May

1987). Since appellant does not dispute the amount of drugs the

court used in its calculation up to 174,000 kilograms, the district

court used the proper offense level in calculating Martinez's

sentence. 

Martinez's final contention in this appeal is that the

district court erred in failing to adjust his offense level

downward pursuant to U.S.S.G. §§ 3B1.1-3B1.4. The sentencing

guidelines allow a sentencing judge to effect a downward adjustment

for a defendant who plays a mitigating role in the offense for

which he was convicted. U.S.S.G. § 3B1.2. As stated earlier, we

review a district court's factual findings in preparation for

sentencing under the clearly erroneous standard. Mejia-Orosco, 867

F.2d at 221. In this case, Martinez argued that he deserved a

downward adjustment in his sentence because, as defined in U.S.S.G.

§§ 3B1.2(a)(b), he was either a "minimal" participant or a "minor"

participant in the conspiracy for which he was convicted of being

involved. The Application Notes explain that a defendant's "lack

of knowledge or understanding of the scope and structure of the

enterprise and of the activities of others is indicative of a role

as minimal participant." U.S.S.G. § 3B1.2, Application Note 1. As

an example of a defendant who may be described as a minor
20

participant in a conspiracy for guidelines purposes, the

Application Notes describe a person "who played no other role in a

very large drug smuggling operation than to offload part of a

single marihuana shipment, or in a case where an individual was

recruited as a courier for a single smuggling transaction involving

a small amount of drugs." U.S.S.G. § 3B1.2, Application Note 2.

Martinez contends that because he did not know what he was

delivering, and was basically an innocent participant in this

conspiracy, his role was either "minimal" or "minor." The jury,

however, clearly found him guilty of participation in the

conspiracy as charged in this case, which by definition entailed

the jury's finding that Martinez had knowledge of, and voluntarily

participated in, the ongoing transportation of entire truckloads of

narcotics. The judge's determination that the facts of this case

did not warrant a downward adjustment was therefore not a clearly

erroneous finding.

III. CONCLUSION

Finding no error, we AFFIRM the district court on all issues

raised on appeal.