1

The Honorable Stephen N. Limbaugh, United States District

Judge for the Eastern and Western Districts of Missouri.

_____________

No. 94-2275

_____________

United States of America, *

*

Plaintiff-Appellee, * Appeal from the United States

* District Court for the

v. * Eastern District of Missouri.

*

Enrique Flores, Jr., *

*

Defendant-Appellant. *

_____________

Submitted: September 13, 1995

Filed: January 17, 1996 _____________

Before LOKEN, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges. _____________

HANSEN, Circuit Judge.

Enrique Flores, Jr., appeals from the final judgment entered

by the district court1 after a jury found him guilty of conspiracy

to distribute marijuana in violation of 21 U.S.C. §§ 841 and 846.

Flores contends that the district court abused its discretion by

declining to grant a mistrial after a government witness

volunteered certain testimony. Flores also makes various

challenges to his sentence. We affirm.
 2

This quantity was the basis for the district court's

calculation of Flores' base offense level.

-2-

I.

Viewed in the light most favorable to the verdict, the

evidence shows Flores became involved in a highly structured, well

organized, and intricate marijuana distribution conspiracy which

distributed tons of marijuana throughout the United States. We

limit our discussion only to those facts that are necessary to

resolve the issues that Flores raises on appeal.

Part of the marijuana distribution activities were conducted

in and around Cape Girardeau, Missouri. Cape Girardeau sits on the

Mississippi River, which serves as the Illinois-Missouri border.

The marijuana was transported from south Texas in specially built,

vacuum-sealed metal containers concealed in loads of produce

(tomatoes and bananas), which were hauled by semi-truck to Cape

Girardeau (among other locations across the country). The driver

of the truck (who received $15,000 per load transported) or his coconspirator passenger, would then notify the local contact of the

shipment's arrival. The contact would meet the truck driver and

take the load of marijuana to a warehouse located on a secluded

farm in nearby southern Illinois, where it was unloaded and stored.

The marijuana would later be distributed to buyers, who came from

all over the United States. In mid-February of 1993, two separate

shipments totaling approximately 2028 lbs. (919.99 kilograms) of

marijuana were delivered to the warehouse.2 All told, the

conspiracy distributed at least 25,000 pounds of marijuana during

its existence.

Jose Trevino, and to a somewhat lesser extent his brother

Jaime Trevino, were principals in the marijuana operation, which

was headed by a man called "Mr. J," known to the authorities as one
-3-

Johnny Rodriguez. In February of 1993, Jaime Trevino contacted the

appellant, Flores, a longtime friend, and inquired whether Flores

was interested in purchasing marijuana. Jaime Trevino informed

Flores that his brother, Jose, was involved in a marijuana

distribution organization that was capable of supplying large

quantities of marijuana. Flores responded that he knew a person in

Michigan who might be interested in purchasing quantities of

marijuana and agreed to provide his Michigan contact with this

market information. Flores' Michigan contact was later identified

as one Roger Jackson. Jaime Trevino told Flores to inform his

Michigan contact that if the contact was interested in purchasing

a quantity, the transaction would take place in Cape Girardeau.

Flores passed this information along to Jackson, who expressed an

interest in making a purchase.

Flores later met with the Trevinos to set up the arrangements

for the transaction, as well as to discuss the quantity and quality

of the marijuana that the organization had available for sale.

After the Trevinos and Flores finalized their plans, Flores

provided Jackson with the information and requested that Jackson

wire money to Harlingen, Texas, so Flores could purchase an airline

ticket to fly to Cape Girardeau. Accordingly, Jackson sent $750

and Flores bought an airline ticket.

On March 7, 1993, Jaime Trevino contacted Flores and informed

him that arrangements had been made for the Trevinos and Flores to

travel to Cape Girardeau the following day. Flores was to instruct

Jackson to meet them there so that the deal could be completed.

The next day, on the way to Cape Girardeau, the Trevinos and Flores

stopped at the Harlingen airport where Flores obtained a cash

refund for his airline ticket in order to provide the Trevinos and

Flores with expense money for the trip. The three later stopped in

Hope, Arkansas, where Flores again called Jackson to confirm that

the transaction would take place. During the trip, the three
-4-

agreed that Flores would pay the Trevinos $80,000/100 lbs. of

marijuana, and Flores could in turn determine the price he wished

to charge Jackson. Flores determined the price that he would

charge Jackson would be $85,000/100 lbs.

The Trevinos and Flores arrived in Cape Girardeau on March 9,

1993, and checked into a local motel. Jose Trevino met with one

Michael Hartwick, who was in charge of storing the marijuana at the

nearby Illinois warehouse. They discussed the marijuana

transactions that were to take place in the next couple of days,

several of which were large scale, involving brokers and dealers

from other states, as well as the general operation of the

distribution ring. Flores was present at various times during this

conversation. At some point, Flores again called Jackson to

confirm that the marijuana deal would be conducted.

Later that same day, Flores informed Jaime Trevino that

Jackson had arrived and that they could proceed with the

transaction. Flores gave Jaime Trevino the keys to Jackson's car,

and the car was taken to the Illinois marijuana warehouse, where

239 pounds of marijuana were loaded into it. Jaime Trevino then

drove Jackson's car back to Cape Girardeau, intending to return to

the motel. However, Trevino spotted a law enforcement vehicle near

the motel and so he parked the car in a Wal-Mart parking lot

several blocks away. Trevino returned to the motel and explained

what had happened to Flores. Flores instructed Trevino to

immediately return the vehicle to the motel parking lot. Jaime

Trevino did so and gave Jackson's car keys to Flores.

While Jackson's vehicle was being loaded with the marijuana,

Flores paid Jose Trevino $80,000 for 100 lbs. of marijuana. When

Jaime Trevino arrived back at the motel, Flores explained to

Jackson that the charge was going to be $85,000 for 100 lbs., and

that the remaining quantity of marijuana (139 lbs. worth
-5-

approximately $118,150) would be "fronted," i.e., provided on

credit, to him. After completing the transaction, Flores returned

Jackson's car keys to him. Later, when Jose Trevino was directed

to deliver the proceeds from the sale to Jackson to two of Mr. J.'s

couriers at the St. Louis airport, Flores arranged for Jackson to

ride along with him and Trevino so Jackson could fly back to

Michigan. After dropping Jackson off, Trevino and Flores met the

two couriers when their flight arrived and Flores was present in

the pickup truck when Trevino told the couriers he had the money to

give to them.

The conspiracy came to an abrupt end in the early morning

hours of March 11, 1993, when law enforcement officers, who had

been conducting surveillance of the activities of the operation,

arrested a number of individuals. Flores was among those arrested,

and approximately $4,900 in cash was recovered from his gym bag in

his motel room. 

Flores was subsequently charged in a one-count superseding

indictment with conspiracy to distribute in excess of 1,000

kilograms of marijuana in violation of 21 U.S.C. §§ 841 and 846.

A jury found him guilty of the charge. At sentencing, the district

court determined that Flores' base offense level was 30 and then

applied a three-level upward adjustment after determining that

Flores was a manager or supervisor of the criminal activity within

the meaning of U.S.S.G. § 3B1.1(b). Flores' total offense level of

33, combined with his criminal history category of IV, generated a

Sentencing Guidelines range of 188 - 235 months. The district

court sentenced Flores to 200 months of imprisonment. Flores

appeals.
 3

Federal Rule of Evidence 404(b) states:

Evidence 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, preparation, plan,

knowledge, identity, or absence of mistake or

accident, provided that upon request by the

accused, the prosecution in a criminal case

shall provide reasonable notice in advance of

trial, or during trial if the court excuses

pretrial notice on good cause shown, of the

general nature of any such evidence it

intends to introduce at trial. 

-6-

II.

A. District Court's Failure to Grant a Mistrial

Flores contends that the district court abused its discretion

by denying his motion for a mistrial after prosecution witness

Jaime Trevino gave certain testimony. At trial, the following

exchange took place on direct examination between the prosecutor

and Trevino:

MR. FAGAN (prosecutor): Can you describe your

relationship with [Flores]?

MR. TREVINO (witness): We have been friends.

We have -- I have sold marijuana to him, and he has

sold marijuana to me.

We have done several drug deals.

(Trial Tr. at 5-177.) At this point, Flores' counsel objected and

a sidebar conference ensued. Flores claimed that this testimony

was prior bad acts evidence under Federal Rule of Evidence 404(b),3

and that the prosecution had failed to comply with the notice

requirements of that provision. Flores strenuously demanded that

the district court immediately declare a mistrial.
-7-

The prosecutor responded that, although he knew of the

existence of this evidence, the government had not intended to

introduce it at trial, and in fact, the prosecutor stated that he

had expressly instructed the witness not to go into these matters.

Thus, according to the prosecutor, he had no duty to disclose this

information in advance of trial. The district court determined

that the government's explanation was credible and declined to

grant a mistrial. The court stated that it felt that an admonition

to the jury to disregard the testimony would only serve to

highlight it, and accordingly, gave no admonition to the jury. The

court also stated that it would give the jury a curative

instruction if Flores so desired, and the court extended the

invitation to Flores' counsel to submit such an instruction to the

court for consideration. Flores' counsel initially indicated that

he would submit a proposed instruction to the court but then later

indicated that a curative instruction would not be sufficient to

cure the prejudice and that a mistrial was the only satisfactory

remedy. In any event, Flores' counsel never submitted a proposed

instruction, and the district court did not give one specifically

tailored to Trevino's testimony.

Flores argues that this testimony was inadmissible prior bad

acts evidence under Rule 404(b) or, in the alternative, even if the

evidence was properly admissible under that rule, the government's

failure to comply with the notice requirements of that provision

prejudiced him. In either event, Flores contends that the district

court should have granted a mistrial.

"`We will affirm a district court's ruling on a motion for a

mistrial absent an abuse of discretion.'" United States v.

Fregoso, 60 F.3d 1314, 1328 (8th Cir. 1995) (quoting United States

v. Adams, 37 F.3d 383, 384 (8th Cir. 1994)). "The district court

is in a far better position to measure the effect of an improper

question on the jury than an appellate court which reviews only the
-8-

cold record." United States v. Nelson, 984 F.2d 894, 897 (8th

Cir.) (internal quotations omitted), cert. denied, 113 S. Ct. 2945

(1993). Finally, we have observed that measures less drastic than

declaring a mistrial, for instance giving the jury a curative

instruction, ordinarily alleviate any prejudice flowing from

improper testimony. See id. ("[t]he admission of allegedly

prejudicial testimony is ordinarily cured by an instruction to the

jury to disregard the testimony.").

In the present case, the district court offered to give the

jury a curative instruction and indicated that it would consider

any instruction submitted by defense counsel. Because such an

instruction would ordinarily be sufficient to cure the alleged

prejudice, Flores' position at trial of a mistrial-or-nothing

precludes us from finding in his favor on this issue. Given the

district court's vantage point, we afford that court wide latitude

in determining whether a mistrial is the appropriate remedy in

these circumstances or whether other measures will be sufficient.

Accordingly, we hold that the district court did not abuse its

discretion in declining to grant a mistrial in this case. We note

that the court did, in its final instructions, give the jury an

instruction which told them that any evidence they had heard about

Flores having committed a similar act in the past could not be used

to determine whether he committed the acts charged in this case.

(See Jury Inst. 11, Trial Tr. Vol. 12 at 180-81.) Although the

court gave this instruction because of Rule 404(b) testimony given

by one Jesus Riojas which, if believed, showed that Flores had been

involved in attempting to provide his Michigan customer, Jackson,

a large quantity of marijuana approximately one year prior to the

events in this case, the language of the instruction was broad

enough to encompass Jaime Trevino's volunteered statements about

his prior drug dealings with Flores as well.
-9-

In any event, assuming an error occurred, such error was

harmless. See United States v. DeAngelo, 13 F.3d 1228, 1233 (8th

Cir.), cert. denied, 114 S. Ct. 2717 (1994). As we pointed out in

DeAngelo, trial errors that do not affect constitutional rights are

subject to Fed. R. Crim. P. 52(a)'s harmless error standard, under

which "`[a]n error is harmless if the reviewing court, after

reviewing the entire record, determines that no substantial rights

of the defendant were affected, and that the error did not

influence or had only a slight influence on the verdict.'" Id.

(quoting United States v. Flenoid, 949 F.2d 970, 973 (8th Cir.

1991)). "[W]e determine the prejudicial effect of any allegedly

improper testimony on the defendant's right to a fair trial by

examining the trial context of the error, and the prejudice created

thereby as juxtaposed against the strength of the evidence of the

[defendant's] guilt." Nelson, 984 F.2d at 897. 

After carefully reviewing the record, we believe that Jaime

Trevino's testimony about Flores' past drug activities would have

had, at most, only a slight influence on the verdict, particularly

in view of Riojas's properly admitted 404(b) testimony. The

challenged Trevino testimony was brief and given in the middle of

a lengthy, twelve-day, multi-defendant drug conspiracy trial.

After this testimony was given, it appears that no further

reference was made to these matters by the government or any

witness during the remainder of the trial. On the other hand, the

evidence of Flores' guilt was very strong: Three co-conspirators

testified regarding Flores' direct involvement in the conspiracy;

Flores traveled approximately a thousand miles from south Texas to

Cape Girardeau with the Trevinos and stayed in a hotel with the

Trevinos while they distributed and attempted to distribute large

quantities of marijuana; and finally, when Flores was arrested, he

possessed $4900, which matches almost dollar-for-dollar the profit

he would have reaped from his transaction with Jackson. Given this

state of the record, with the evidence of Flores' guilt
-10-

substantiated, corroborated, and essentially uncontradicted, any

error that occurred was harmless.

Flores also seems to complain that he was prejudiced because

the district court did not admonish the jury to disregard Jaime

Trevino's volunteered statements. As noted above, the district

court declined to give the jury an admonition because the court

believed that such a measure would only highlight the allegedly

improper testimony. Flores made no objection to the court's course

of action and, in fact, during counsel's zealous argument in favor

of a mistrial, appeared to agree, at least tacitly, that an

admonition would not be appropriate. Again, Flores' stance at

trial contradicts the position he takes on appeal and precludes us

from ruling in his favor.

This testimony was simply one of those unexpected developments

that occurs in the course of a trial which, as many trial judges

and lawyers will attest to, is not an infrequent occurrence.

"[I]nstances occur in almost every trial where inadmissible

evidence creeps in, usually inadvertently." Bruton v. United

States, 391 U.S. 123, 135 (1968). However, the Supreme Court has

repeatedly made clear that a criminal defendant is entitled to "`a

fair trial, not a perfect one.'" Id. (quoting Lutwak v. United

States, 344 U.S. 604, 619 (1953)). That right was not violated in

this case.

B. Sentencing Issues

Flores makes several challenges to his sentence. First, he

contends that the district court improperly calculated the quantity

of marijuana attributable to him in determining his base offense

level. Preliminarily, we observe that while the jury determines

whether the defendant is a member of a drug conspiracy charged in
-11-

the indictment, it is left to the district court to determine the

appropriate quantity of drugs involved in the conspiracy which is

to be attributed to that defendant. See United States v. Behler,

14 F.3d 1264, 1272-73 (8th Cir.) (recognizing that district court

makes drug quantity determination after jury makes guilt-innocence

finding), cert. denied, 115 S. Ct. 419 (1994). The district

court's drug quantity determination is a factual finding that we

review under the clearly erroneous standard. United States v.

Bieri, 21 F.3d 811, 817 (8th Cir.), cert. denied, 115 S. Ct. 208

(1994). We will reverse a drug quantity finding only if we are

firmly convinced that a mistake has been made. United States v.

Maxwell, 25 F.3d 1389, 1397 (8th Cir.), cert. denied, 115 S. Ct.

610 (1994). 

U.S.S.G. § 1B1.3 provides that a criminal defendant convicted

as a co-conspirator may be held accountable for "all reasonably

foreseeable acts and omissions of others in furtherance of the

jointly undertaken criminal activity." U.S.S.G. § 1B1.3(a)(1)(B);

see also United States v. Karam, 37 F.3d 1280, 1289 (8th Cir.

1994), cert. denied sub nom. El Hani v. United States, 115 S. Ct.

1113 (1995). Under this provision, a conspiracy defendant may be

held accountable for the criminal activities of other coconspirators provided the activities fall within the scope of

criminal activity the defendant agreed to jointly undertake.

U.S.S.G. § 1B1.3 (n.2). "In drug conspiracies, the district court

may consider amounts from other drug transactions, provided the

other dealings are part of the same course of conduct or scheme."

Bieri, 21 F.3d at 817. 

Further, a defendant is accountable only for those activities

of co-conspirators which were reasonably foreseeable in relation to

the criminal activity the defendant agreed to jointly undertake.

United States v. Rogers, 982 F.2d 1241, 1246 (8th Cir.), cert.

denied, 113 S. Ct. 3017 (1993). "Relevant to a determination of
 4

Specifically, Flores cites U.S.S.G. § 1B1.3, comment.

(n.2), illus. (c)(3), (5), and (7).

-12-

reasonable foreseeability is whether or to what extent a defendant

benefitted from his co-conspirator's activities." United States v.

Rice, 49 F.3d 378, 382 (8th Cir. 1995), cert. denied, 115 S. Ct.

2630 (1995). "An additional relevant factor is whether the

defendant demonstrated a substantial level of commitment to the

conspiracy." Id. at 383.

The presentence report (PSR) recommended that Flores be held

accountable for approximately 2028 lbs. (919.99 kilograms) of

marijuana, which represents the amount of marijuana delivered to

the Illinois warehouse in mid-February of 1993. The district

judge, after reviewing his notes from trial, the case file, the

PSR, and objections to the PSR, determined that this quantity of

marijuana was reasonably foreseeable to Flores and, accordingly,

adopted the recommendation in the PSR. Significantly, the district

court held Flores accountable only for the quantity of marijuana

that was stored in the southern Illinois warehouse in close

proximity to when Flores traveled to Cape Girardeau. Flores was

not held accountable for the total scope of all of the illegal

activities conducted by Jose Trevino or other members of Mr. J's

organization.

Flores contends that the district court's quantity calculation

was clearly erroneous because the scope of the criminal activity he

agreed to participate in was limited to the one transaction he

arranged with Jackson. Thus, the additional quantities the

district court attributed to him were erroneous. In making this

argument, Flores claims that his conduct is indistinguishable from

that outlined in several Sentencing Guidelines illustrations,4

 in

each of which the Sentencing Commission suggests that the defendant

is accountable for less criminal activity than other joint actors.
-13-

Flores finally contends that the quantities which exceed that

involved in the transaction with Jackson were not reasonably

foreseeable to him in light of the criminal activity he jointly

undertook.

After conducting our own independent, careful review of the

record, we cannot conclude that the district court's drug quantity

calculation was clearly erroneous. First, we reject Flores' claim

that the quantities attributed to him were not within the scope of

the criminal activity in which he agreed to participate. In doing

so, we find his conduct readily distinguishable from the Guidelines

Commentary illustrations he cites. In each of the cited examples,

the defendant's initial agreement to join, and subsequent

involvement in, the joint criminal conduct was clearly defined from

the outset as limited to the specific criminal act(s) which the

defendant undertook. In such instances, it would of course be

proper to hold the defendant accountable only for the limited part

of the joint criminal conduct which the defendant agreed to join

and actually participated in. 

Flores, however, had no such limited agreement, explicit or

implicit, when he joined the conspiracy, viz., that he was only in

for a single deal. Nowhere in the record does it appear, and

Flores offers no record support, that his agreement to become

involved in the marijuana distribution ring was limited to

arranging a single, one-time transaction with Jackson. We think a

fair reading of the record supports the conclusion that Flores

intended to conduct future transactions with the Trevinos and was

simply deprived of the opportunity to do so because he was arrested

before additional transactions could be made. Thus, we find

unpersuasive Flores' argument that the scope of the criminal

activity he agreed to participate in was limited to the one-time

transaction with Jackson when he got caught and that accordingly
-14-

his conduct is indistinguishable from the Guidelines Commentary

illustrations he cites.

Further, we conclude that the quantity attributed to Flores

was reasonably foreseeable to him in light of the joint criminal

activity Flores agreed to undertake. The quantity of marijuana

attributed to Flores was derived from two deliveries that were made

to the Illinois warehouse in mid-February of 1993, at about the

time that Flores became a part of the conspiracy. Flores was aware

that the marijuana he distributed to Jackson would come from a

secluded warehouse in Illinois and, based upon his knowledge that

the marijuana operation could readily satisfy orders for large

quantities of marijuana, he had to have realized that significant

quantities were stored there. He also was aware of the relative

size and scope of the marijuana enterprise when he became involved

in it. The record supports the conclusion that Flores knew that

his customer was not the only individual who was going to be

serviced by the Illinois warehouse during the time the Trevinos and

Flores were in Cape Girardeau.

Additionally, Flores demonstrated a substantial level of

commitment to the conspiracy, traveling with the Trevinos from

Harlingen, Texas, to Cape Girardeau, Missouri (a distance of

approximately 1000 miles), in order to help sell the contents of

the Illinois warehouse, as well as cashing his airline ticket to

provide financing for himself and the Trevinos during their long

distance journey to Cape Girardeau. See Rice, 49 F.3d at 383

(holding defendant demonstrated substantial level of commitment to

conspiracy because he accompanied co-conspirator to California to

meet with other co-conspirator). Finally, Flores was able to

derive substantial benefits from the activities of his coconspirators, as he had access to a large supply of marijuana and

took advantage of the already established method of distribution

which permitted the transaction to be completed with a minimal
 5

The substance of Rule 32(c)(1) was previously contained in

Federal Rule of Criminal Procedure 32(c)(3)(D).

-15-

chance of detection. Given this state of the record, we cannot say

that the district court's drug quantity calculation was clearly

erroneous.

In a related vein, Flores contends that the district court did

not comply with the requirements of Federal Rule of Criminal

Procedure 32(c)(1).5 This provision requires that when a defendant

disputes factual matters contained in the PSR, the district court

must either make specific findings with respect to the controverted

matter or state that the matter will not be considered in imposing

sentence. United States v. Fetlow, 21 F.3d 243, 248 (8th Cir.),

cert. denied sub nom. Ferguson v. United States, 115 S. Ct. 456

(1994). We have held the requirements of this rule to be satisfied

where the district court made clear at sentencing that it was

relying on its impression of the testimony of the witnesses at

trial, coupled with its specific rejection of the defendant's

quantity objections. United States v. Edwards, 994 F.2d 417, 423

(8th Cir. 1993), cert. denied, 114 S. Ct. 701 (1994).

In this case, the district court expressly acknowledged

Flores' objection to the quantity of marijuana the PSR recommended

be attributed to him. The court then explicitly rejected Flores'

objection to the PSR, based upon the record and the court's notes

of the various witnesses' trial testimony. Under these

circumstances, we have no difficulty in concluding that the

district court complied with the requirements under Rule 32(c)(1).

Flores next contends that the district court erred in

assessing a three-level upward adjustment to his base offense level

pursuant to U.S.S.G. § 3B1.1(b) for his role in the offense, after

determining that he was one of the managers or supervisors within
-16-

the single conspiracy charged in the indictment. Flores also

argues that the district court erred in failing to grant him a twolevel downward adjustment under § 3B1.2(b) for being a minor

participant in the offense because his involvement in the

conspiracy was limited to the single transaction with Jackson. The

district court stated that Flores' role as a "middleman" in

arranging the deal with Jackson, together with the manner in which

Flores orchestrated the execution of the transaction, made the

imposition of the three-level upward adjustment appropriate and

precluded a two-level downward adjustment.

A sentencing court's determination of a participant's role in

the offense pursuant to U.S.S.G. § 3B1 is a factual finding that we

review for clear error. Maxwell, 25 F.3d at 1399. Section

3B1.1(b) of the Guidelines provides for a three-level upward

adjustment in a defendant's base offense level if he "was a manager

or supervisor (but not an organizer or leader)" of the criminal

activity. U.S.S.G. § 3B1.1(b). Factors the district court should

consider in determining whether an upward adjustment is appropriate

include "the nature of the defendant's role in the offense, the

recruitment of accomplices, [and] the degree of participation in

planning or organizing the offense." United States v. OrtizMartinez, 1 F.3d 662, 677 (8th Cir.), cert. denied, 114 S. Ct. 355

(1993).

As indicated above, the district judge heard twelve days of

testimony, much of it from cooperating defendants detailing the

organizational structure and functioning of the single conspiracy

charged in the indictment. That testimony revealed a highly

structured, disciplined, and well-planned criminal organization

involving a large number of individuals, each of whom performed

fairly distinct roles. There were lowly lumpers whose only job was

to unload the semi-trucks when they arrived at one of the

warehouses. There were warehouse managers who kept track of the
-17-

incoming and outgoing marijuana inventory and who were responsible

for its security. There were the well-paid, over-the-road, semitruck drivers whose job it was to sneak the concealed cargo through

the law enforcement checkpoint at Falferrias, Texas, and to

transport it to its ultimate destination warehouse in Chicago,

Kansas City, St. Louis, Fort Payne, Alabama, or southern Illinois.

There were dispatchers who boarded the trucks after they cleared

the checkpoint, informed the drivers where the load was to be

delivered, stayed with the load until it was safely in the

warehouse, who kept the kingpin, Mr. J., informed daily of the

load's progress and who answered to his sky pages. There were

persons whose sole responsibility was to carry thousands upon

thousands of dollars in cash (sometimes as much as a quarter of a

million dollars at a time) from the warehouse locations back to Mr.

J. in south Texas. In some instances, there were others who

"owned" the load and for whom the conspiracy only acted as freight

forwarders, collecting fees for transporting the marijuana and for

factoring the transactions. There were area coordinators who

informed the brokers that the product was available. There were

the brokers like Flores who brought their customers (who were large

scale dealers) to the warehouse sites and who arranged for the

wholesale sales and distribution to their customers. The jury

convicted Flores of being a member of this overall intricate

conspiracy, and it was the district judge's responsibility to

determine what Flores' role was in the offense of conviction, i.e.,

where he fit in the scheme of the conspiracy's criminal activity.

As his sentencing comments indicate, the experienced district judge

was well aware of the need to make relative judgments about the

role in the conspiracy offense each of the more than 12 defendants

played that he had to sentence in this case.

We conclude that the district court's determination that

Flores' role in the conspiracy merits a three-level enhancement

pursuant to U.S.S.G. § 3B1.1(b) is not clearly erroneous. As the
 6

Flores admits as much in his brief, stating that "[t]he

Government's evidence suggests that Appellant located a buyer and

facilitated a transaction much as a real estate agent will

solicit listings and will broker a transaction." (Appellant's

Br. at 30.) Thus, Flores acknowledges that he was not merely a

bit player in the conspiracy.

 7Given this disposition, we likewise conclude that the

district court's decision not to award Flores a two-level

reduction for being a minor participant was not clearly

erroneous. See Ortiz-Martinez, 1 F.3d at 678. 

-18-

facts delineated above illustrate, Flores solicited a substantial

buyer on behalf of the drug ring, helped finance the trip, played

an integral and extensive role in planning the transaction with the

Trevinos and Jackson, determined the price for the quantity of

marijuana sold to Jackson along with arranging for a sizeable

portion of the quantity to be "fronted," and finally, personally

managed and ensured that the $200,000 deal got done.6 Thus,

Flores' claim that the district court erred by imposing a threelevel upward adjustment is without merit.7

III.

For the reasons enumerated above, we affirm the judgment of

the district court.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.