* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-41760

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

GERBER WALDEMAR ORDONEZ; WILLIAM B BRADLEY; SIXTO

SANCHEZ LUGO

Defendants - Appellants

Appeal from the United States District Court

for the Eastern District of Texas

U.S.D.C. No. 4:06-CR-14-3

Before JOLLY, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:*

Gerber Waldemar Ordonez, William B. Bradley, and Sixto Sanchez Lugo

were convicted of conspiracy to distribute cocaine in violation of 21 U.S.C. § 846.

Ordonez was also convicted of conspiracy to distribute methamphetamine in

violation of 21 U.S.C. § 846. They raise numerous challenges to their conspiracy

convictions and sentences. Because the district court committed no reversible

error, we AFFIRM their convictions and sentences. 

United States Court of Appeals

Fifth Circuit

F I L E D

August 8, 2008

Charles R. Fulbruge III

Clerk
No. 06-41760

2

I. 

Marco Guardiola was the central figure in a large conspiracy to distribute

cocaine, which he ran out of the Dallas, Texas, area. Guardiola took over the

business in 2004 from his former boss, Miguel Martinez, after Martinez was

killed. Guardiola received drugs from an organization based in Mexico and

distributed them to various places throughout the United States. Juan Cordova

was his right hand man, assisting him in distributing large amounts of cocaine.

Guardiola distributed cocaine to Chicago, Illinois to the organization’s

contact in Chicago he knew as “Compa” or “Compadre,” and later identified as

defendant Sixto Sanchez Lugo. Guardiola began transporting cocaine to Lugo

in Chicago in 2004. 

On trips to Chicago, Guardiola also delivered cocaine to Kevin Bell, who,

in turn, delivered it to defendant William Bradley at his home in Indianapolis,

Indiana. Kevin Bell also delivered cocaine directly from the Dallas area to

Bradley in Indianapolis. 

Guardiola also distributed cocaine in the Dallas area. He sold cocaine to

Brad Holland, who sold it to defendant Gerber Ordonez. In addition to

supplying Ordonez with cocaine he received from Guardiola, Holland purchased

methamphetamine from Ordonez.

Guardiola was arrested in September 2004 and began cooperating with

law enforcement. Many of his co-conspirators were eventually discovered by law

enforcement and arrested. 

II. 

Lugo, Bradley, and Ordonez were indicted for conspiracy to distribute and

to possess with the intent to distribute and dispense cocaine from January 1,

2004, through January 11, 2006 in violation of 21 U.S.C. § 846. Ordonez was

charged with conspiracy to manufacture, distribute and dispense
No. 06-41760

3

methamphetamine,from January 1, 2004 through February 8, 2006, in violation

of 21 U.S.C. § 846 and aiding and abetting the same, under 18 U.S.C. § 2. 

After a trial, the jury found each defendant guilty of conspiracy to

distribute cocaine. The jury also found Ordonez guilty of conspiracy to distribute

methamphetamine. 

Lugo was sentenced to imprisonment for a term of 151 months and five

years of supervised release. Bradley was sentenced to 121 months of

imprisonment and five years of supervised release. Ordonez was sentenced to

240 months of imprisonment and three years of supervised release for his

cocaine conspiracy conviction, to be served consecutively with a sentence of 360

months of imprisonment and five years of supervised release for his

methamphetamine conspiracy conviction.

III.

A.

Lugo challenges the sufficiency of the evidence against him. He also

challenges the admission of extrinsic evidence of his 2001 detention in a Chicago

airport and the admission of evidence of cocaine and drug paraphernalia found

in his home, contending that the evidence was inadmissible under Federal Rule

of Evidence 404(b). 

B. 

Bradley also challenges the sufficiency of the evidence against him.

Additionally, he challenges his sentence, contending thatthe district court erred

by enhancing his offense level and denying an adjustment to his Guidelines

range on the basis of firearms and drug paraphernalia found in his home.

Bradley contends that the court erred by not applying an adjustment to his

offense level because he was only a minor or minimal participant in the

conspiracy. He also contends that his sentence is unreasonable and that the

district court did not sufficiently explain its reasons for imposing it. 
No. 06-41760

1 Ordonez also raises arguments relating to the prosecution’s opening statement and

the district court’s “failure” to order his counsel to move for judgment of acquittal. These

arguments are meritless. Ordonez also contends that the district court erred by enhancing his

Guidelines offense level on the basis of facts not found by the jury. This argument is foreclosed

by circuit precedent. See United States v. Mitchell, 484 F.3d 762, 776 (5th Cir. 2007).

4

C.

Ordonez, likewise, challenges the sufficiency of the evidence against him.

He also contends that the district court did not give sufficient preliminary

instructions to the jury or sufficient instructions regarding the nature of the

conspiracies and the testimony of co-conspirators. Ordonez also challenges the

admission of evidence that he threatened the wife of a witness and the exclusion

of testimony to impeach another witness’s testimony regarding possession of a

cell phone in jail.1

We now turn to address the arguments raised by the three appellants.

IV.

A.

1. 

We first consider Lugo’s argument that the evidence was insufficient to

support his conviction. Lugo moved for judgment of acquittal, so we review the

district court’s denial of that motion de novo. United States v. Williams, 520

F.3d 414, 420 (5th Cir. 2008). We review the sufficiency of the evidence to

determine whether, viewing the evidence in the light most favorable to the

verdict, a rational jury could have found the essential elements of the offense

beyond a reasonable doubt. Id. The elements of the offense of conspiracy to

distribute cocaine are (1) an agreement with one other person to manufacture,

distribute, or dispense, or possess with intent to manufacture, distribute, or

dispense, cocaine; (2) defendant’s knowledge of the agreement; and (3)

defendant’s voluntary participation in the conspiracy. 21 U.S.C. § 846; 21 U.S.C.

§ 841(a)(1); United States v. Thomas, 348 F.3d 78, 82 (5th Cir. 2003). 
No. 06-41760

5

We hold that the evidence was sufficient to support Lugo’s conviction.

Lugo’s co-conspirators, Guardiola and his right-hand man, Juan Cordova,

testified that they personally delivered many kilograms of cocaine to Lugo on

more than one occasion. They identified him in court as the man they knew as

“Compa” or “Compadre.” Guardiola testified that he made at least three

deliveries to Lugo in Chicago, delivering between 15 and 20 kilograms of cocaine

each time. Cordova testified that he wentto deliver cocaine to Lugo and received

paymentfrom Lugo. Kelly Leal and Juan Guardiola, Marco Guardiola’s brother,

testified that they flew to Chicago in November of 2004 to hand “Compa” a cell

phone so that Marco could ask him for money that was owed for a past cocaine

sale. They identified Lugo as the man who came to the door when they asked for

Compa and who spoke with Marco Guardiola. When Lugo was arrested, he had

a phonebook containing the names Kelly, Juan, and another of Marco

Guardiola’s brothers.

The jury reasonably could have believed the testimony of the government’s

witnesses and thatLugo’s repeated drug transactions with Guardiola and others

evince a knowing agreement to distribute cocaine and voluntary participation

in the conspiracy. We are “precluded from invading the province of the jury by

substituting our credibility determinations for those of the jury unless the

witness’s testimony is factually impossible, which would render it incredible as

a matter of law.” United States v. Landerman, 109 F.3d 1053, 1067 (5th Cir.

1997). Viewing the evidence in the light most favorable to the verdict, a rational

jury could have found the elements of the offense beyond a reasonable doubt. 

2. 

We now turn to Lugo’s challenge to the admission of extrinsic evidence.

We review the admission of evidence under Federal Rule of Evidence 404(b)

under an abuse of discretion standard, which is necessarily heightened on review

of evidentiary rulings in criminal trials. United States v. Carrillo, 981 F.2d 772,
No. 06-41760

6

774 (5th Cir. 1993). We follow a two-step inquiry to analyze the admissibility of

Rule 404(b) 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 [R]ule 403.”

United States v. Mitchell, 484 F.3d 762, 774 (5th Cir. 2007) (quoting United

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

The Government sought to admit evidence that Lugo was detained in

Chicago’s Midway airportin 2001 and was discovered to have $142,000 strapped

to his legs and another $1,500 in his pocket. The district court ruled before trial

that the evidence was extrinsic, but admissible under Federal Rule of Evidence

404(b), finding it was relevant for purposes other than the defendant’s character:

“his intent among other things.” The court also found that the “probative value

outweighs the harm in the case.” Lugo contends that the district court erred in

admitting the extrinsic evidence. He contends that the extrinsic evidence of his

past act was not relevant to the drug conspiracy with which he was charged. 

Federal Rule of Evidence 404(b) provides that 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, but may be admissible for other purposes

“such as proof of motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident.” We have held that a defendant

places his intent in issue when he pleads not guilty in a drug conspiracy case

and “therefore, evidence of past drug transactions can be used to establish

criminal intent.” United States v. Misher, 99 F.3d 664, 670 (5th Cir. 1996). 

We have further held that 

[w]here the issue addressed is the defendant’s intent to

commit the offense charged, the relevancy of the

extrinsic offense derives from the defendant’s indulging

himself in the same state of mind in the perpetration of
No. 06-41760

7

both the extrinsic and charged offenses. The reasoning

is that because the defendant had unlawful intent in

the extrinsic offense, it is less likely that he had lawful

intent in the present offense.

Beechum, 582 F.2d at 911. The extrinsic offense must require the “same intent

as the charged offense” to be probative of intent to commit the charged offense.

United States v. Jackson, 339 F.3d 349, 354 (5th Cir. 2003). The offenses need

not be identical. We have held, for example, that conspiracy to transport stolen

jewelry in interstate commerce involves the same intent as the extrinsic offense

oftheft, which required the defendantto intend to deprive the owner of property.

Id at 354-55. Cf. United States v. Riddle, 103 F.3d 423, 433 (5th Cir. 1997)

(holding that evidence of irresponsible banking practices was not relevant to

show intent to commit bank fraud). 

In this case, the officer who detained Lugo in 2001 testified that Lugo

gave inconsistent answers to questions and that his behavior and the fact that

he was traveling with a one-way, cash ticket was consistent with drugtrafficking activity. Although it is certainly likely that people with large

amounts of cash hidden on their person are involved in illegal activity—indeed

in drug distribution activity—Lugo was not charged with or convicted of any

drug offense in connection with the 2001 seizure, and no such offense was proven

to the jury. There is no evidence that Lugo’s previous act required the same

intent as the charged offense of conspiracy to distribute cocaine. Although the

district court mentioned that the evidence was admissible to show “other things,”

it never stated on the record what those other things were.

Assuming that the district court abused its discretion in admitting

evidence of the 2001 incident, we will reverse only if the error was not harmless.

FED. R. CRIM. P. 52(a); Mitchell, 484 F.3d at 774. In a harmless error

examination, we view an error in relation to the entire proceeding, not merely

in isolation. United States v. Hawley, 516 F.3d 264, 268 (5th Cir. 2008). We will
No. 06-41760

8

reverse only if there is a reasonable possibility that the improperly admitted

evidence contributed to the conviction. Id. However, “[w]hen the other evidence

of guilt is overwhelming, and the error would not have substantially influenced

the jury's verdict, the error is harmless.” Id. Here, there was substantial other

evidence that Lugo was guilty of the offense charged, discussed above.

Admitting evidence of his 2001 detention did not substantially influence the

jury’s verdict. We conclude that any error is harmless. 

Lugo also contends that the district erred by admitting evidence that

approximately 62 grams of cocaine were found in a March 2006 search of his

California home after the conspiracy charged in the indictment had ended. He

contends that the cocaine and drug paraphernalia found in his home were not

evidence of conspiracy to distribute cocaine and that the evidence was highly

prejudicial. The cocaine was found along with a digital scale, cutting agent, two

firearms, and a candle portraying what the agent testifying identified as the

“patron saint of drug traffickers.” We have held that possession of drugs is

highly probative of a defendant’s knowledge and intent to commit conspiracy to

distribute drugs. See United States v. Duffaut, 314 F.3d 203, 209 (5th Cir. 2002);

United States v. Gadison, 8 F.3d 186, 191-92 (5th Cir. 1993) (holding that “[a]

prior conviction for possession of cocaine is probative of a defendant’s intent

when the charge is conspiracy to distribute”). The district court therefore did not

err by finding that the evidence was relevant to an issue other than Lugo’s

character. 

Moreover, it does not appear that the probative value of the evidence was

outweighed by a risk of undue prejudice. The district court instructed the jury

immediately after the introduction of evidence regarding the search of Lugo’s

home that the “testimony is being admitted only for the limited purpose of being

considered by you on the question of . . . the Defendant’s intent, his modus

operandi or motive, opportunity, preparation and plan, and for no other
No. 06-41760

2 Lugo contends that the court’s instruction did not cure any error because it simply

recited the list of permissible purposes found in Rule 404(b). We have held, however, that an

instruction that tracks the language of Rule 404(b) properly instructs the jury on permissible

uses of extrinsic evidence. United States v. Pompa, 434 F.3d 800, 805-06 (5th Cir. 2005). 

9

purpose.” A similar instruction was given before the jury deliberated. The

court’s instructions to the jury diminished any undue prejudice that might have

arisen from the introduction of the evidence of Lugo’s cocaine possession.2 See

United States v. Taylor, 210 F.3d 311, 318 (5th Cir. 2000) (“We consistently have

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.”). Therefore, the district court did not err in admitting

the evidence. 

B.

1.

We now consider Bradley’s challenges to his conviction and sentence.

First, we consider Bradley’s argument that the evidence was insufficient to

support his conviction. He properly preserved this argument by making a

motion for judgment of acquittal, so our review is de novo. Williams, 520 F.3d

at 420. Bradley contends that the only evidence presented against him was

the testimony of his co-conspirators, and that their testimony was not credible.

Kevin Bell testified that he knew Bradley from high school and began

selling marijuana to Bradley beginning in 2003. Kevin Bell testified that, on

four occasions in 2004, he delivered cocaine to Bradley at Bradley’s Indianapolis

home, in amounts ranging from five to nineteen kilograms. Kevin Bell had

previously pled guilty in connection with his involvement in the conspiracy.

Keith Bell, Kevin’s brother, testified that he accompanied Kevin on two of these

trips and witnessed Bradley giving Kevin Bell a bag of money for a delivery of

cocaine. Keith Bell had not been charged in connection with the case at the time

of trial. 
No. 06-41760

10

The government also introduced evidence of recorded phone calls made by

Kevin Bell while he was in custody in May 2005 and January 2006. In January

2006, Kevin Bell called Bradley’s half-brother, Houston Leek, and attempted to

arrange a cocaine deal. According to the transcript of the calls, Leek arranged

a three-way conversation with another person, whom Bell identified as Bradley.

Upon his arrest in January 2006, a search of Bradley’s home produced over an

ounce of cocaine, digital scales, clear plastic, and four firearms. 

Bradley points to some inconsistencies in the Bell brothers’testimony and

some discrepancies with earlier accounts given to investigators. Bradley crossexamined the Bells regarding the discrepancies in their stories, and the jury

judged their credibility. The court instructed the jury to view the unsupported

testimony of co-conspirators with great care and not to convict on the basis of

such testimony unless the jury believed the testimony beyond a reasonable

doubt. Bradley has not demonstrated that the testimonial evidence showed a

factual impossibility. We will not, therefore, second-guess the jury’s credibility

determinations. See Landerman, 109 F.3d at 1067. We hold that, viewing the

evidence in the light most favorable to the verdict, the evidence was sufficient

to support the verdict on each element of conspiracy. The district court did not

err in denying Bradley’s motion for judgment of acquittal. 

2. 

Bradley also raises several arguments concerning his sentence, which we

consider in turn. 

a.

First, Bradley contends thatthe district court erred by enhancing his base

offense level by two levels according to U.S.S.G. § 2D1.1(b)(1), which provides for

the enhancement “if a dangerous weapon (including a firearm) was possessed.”

Application note 3 to the Guideline provides that “[t]he adjustment should be

applied if the weapon was present, unless it is clearly improbable that the
No. 06-41760

11

weapon was connected with the offense. For example, the enhancement would

not be applied if the defendant, arrested at his residence, had an unloaded

hunting rifle in the closet.” Whether the weapon was connected with the offense

is a factual finding reviewed for clear error. United States v. Cooper, 274 F.3d

230, 245 (5th Cir. 2001). 

Under § 2D1.1, the government must show by a preponderance of the

evidence “that a temporal and spatial relation existed between the weapon, the

drug trafficking activity, and the defendant.” Cooper, 274 F.3d at 245 (quoting

United States v. Vasquez, 161 F.3d 909, 912 (5th Cir.1998)). “Under this

standard, the Government must show that the weapon was found in the same

location where drugs or drug paraphernalia are stored or where part of the

transaction occurred.” UnitedStates v.Salado, 339F.3d 285, 294 (5th Cir. 2003).

The enhancement is appropriate if a firearm “was possessed during the course

of manufacturing, importing, exporting, or trafficking in narcotics, including

attempting or conspiring to do so.” United States v. Dixon, 132 F.3d 192, 201-02

(5th Cir. 1997) (quoting United States v. Gaytan, 74 F.3d 545, 559 (5th Cir.

1996)). Relevant conduct may be considered, so that possession may be found

even if the firearm is not possessed during the offense of conviction. United

States v. Eastland, 989 F.2d 760, 769 (5th Cir. 1993). We have held, however,

that it is insufficient for the Government to show merely that a drug offender is

found with a gun while participating in an ongoing conspiracy. Cooper, 274 F.3d

at 246. The Government must show that the firearm or the location in which it

is found is connected in some way with drug-trafficking activities. Id. 

Bradley contends that the Government did not demonstrate by a

preponderance of the evidence a temporal and spatial relation between the

weapon,the drug activity for which he was convicted, and Bradley. Bradley was

arrested January 24, 2006. Therefore, Bradley argues that the guns were not

found in close enough temporal proximity to the conspiracy. 
No. 06-41760

12

The government presented proof that three loaded pistols and a shotgun

were found in Bradley’s home. One pistol was found in the kitchen where a little

over an ounce of cocaine was also found. The serial number had been removed

from the weapon. The two other pistols were found on shelves in Bradley’s

master bedroom. In the bedroom closet a shotgun was found, along with digital

scales which had cocaine residue, clear plastic, baggie ties, and a plastic spoon.

Seven thousand dollars in cash was found in a safe in the closet. Kevin and

Keith Bell testified that Bradley’s home was the location of multiple deliveries

of cocaine. There was abundant evidence of a spatial relationship between the

firearms and drug-trafficking activity. 

Bradley contends that there is not a sufficient temporal relation

connecting the search of his home in January 2006 and the last delivery made

to his home in 2004. However, the government introduced evidence of a recorded

telephone call between Kevin Bell, Houston Leek, and Bradley that took place

on January 23, 2006. Kevin Bell testified that during that conversation, he and

Bradley discussed a cocaine transaction that Bell had previously discussed with

Leek, acting as a go-between to Bradley. Bradley expressed interest in

distributing cocaine again on a regular basis. They discussed Bell selling

Bradley and Leek five kilograms of cocaine for $18,000 per kilogram. Bradley

denied that he actually made a cocaine deal with Bell, although he admitted that

his voice appeared on the recorded call during which they discussed a marijuana.

We have held that firearms may be “possessed” for purposes of §

2D1.1(b)(1) in connection with a drug conspiracy even if they are found after a

particular transaction in furtherance of the conspiracy. See United States v.

Caicedo, 103 F.3d 410, 412 (5th Cir. 1997). In Caicedo, the defendant argued

that weapons found two and a half months after cocaine was repackaged at an

informant’s residence were not possessed in connection with his conspiracy

offense. Id. The firearms were found in close proximity to drug paraphernalia
No. 06-41760

13

with cocaine residue. Id. Because Caicedo had not withdrawn from the

conspiracy, we affirmed the district court’s conclusion that it was not clearly

improbable that the firearms were connected with the cocaine conspiracy. Id.

Here, over a year had passed between Bell’s last cocaine delivery to

Bradley in 2004 and the discovery of the firearms in January 2006. However,

like Caicedo, Bradley had not withdrawn from the conspiracy, which was

charged in the indictment through January 11, 2006. Bradley continued to

discuss a cocaine transaction with Leek and Bell as late as January 23, 2006,the

day before the firearms were found. Moreover, Officer Paul Buchman, who

searched Bradley’s house,testified thatthe amount of cocaine found there along

with the firearms was consistent with distribution. Because the government

presented evidence that Bradley continued to engage in the cocaine distribution

conspiracy up until his arrest, and because Bradley’s firearms were found in

close proximity to cocaine and drug paraphernalia, the district court did not

clearly err in finding, by a preponderance ofthe evidence, a sufficient spatial and

temporal nexus between the weapons, the drug activity, and Bradley to apply §

2D1.1(b)(1). Bradley has not shown that it is clearly improbable that the

firearms were connected to his offense. Cooper, 274 F.3d at 246 n.8 (explaining

that, once the government has established a temporal and spatial relationship

between the weapon, the drug-trafficking activity, and the defendant, the burden

shifts to the defendant to show that it was clearly improbable that the weapon

was connected to the offense). 

b.

Bradley also contends that the district court erred by not applying the

“safety valve” provision of U.S.S.G. § 5C1.2 and 18 U.S.C. § 3553(f). Bradley has

the burden of showing that he is entitled to the safety valve adjustment to his

sentence. United States v. McCrimmon, 443 F.3d 454, 457 (5th Cir. 2006).

Section 5C1.2 requires proof that, among other things, Bradley did not possess
No. 06-41760

14

a firearm in connection with his offense. § 5C1.2(2). We have held that the

firearm provision of § 5C1.2(a)(2) and the firearm provision of § 2D1.1(b)(1)

should be interpreted analogously. Vasquez, 161 F.3d at 912. As discussed

above, the district court did not err in finding that Bradley possessed a gun for

the purposes of § 2D1.1(b)(1). It therefore did not err in not applying the safety

valve provision because Bradley did not show that he did not possess a firearm

in connection with the drug conspiracy offense.

c.

Bradley contends that he was a minimal or minor participant in the

conspiracy and was therefore entitled to a decrease in his offense level under

U.S.S.G. § 3B1.2. Section 3B1.2 requires a four-level decrease if the defendant

was a minimal participant in any criminal activity and a two-level decrease if

the defendant was a minor participant. A minimal participant is one who is

“plainly among the least culpable of those involved in the conduct of a group.”

U.S.S.G. § 3B1.2 cmt. n. 4. A minor participant is one “who is less culpable than

most other participants, but whose role could not be described as minimal.”

U.S.S.G. § 3B1.2 cmt. n. 5. 

The defendant bears the burden of proving that his role was minor or

minimal. United States v. Atanda, 60 F.3d 196, 198 (5th Cir. 1995). We review

the district court’s finding for clear error. United States v. Griffith, 522 F.3d 607,

611 (5th Cir. 2008). We have held that, “when a sentence is based on an activity

in which a defendant was actually involved, § 3B1.2 does not require a reduction

in the base offense level even though the defendant’s activity in a larger

conspiracy may have been minor or minimal.” Atanda, 60 F.3d at 199. When a

defendant in a drug conspiracy is sentenced based only on the drugs he actually

participated in transporting, he cannot claim to be a minor participant in

relation to his offense. United States v. Marmolejo, 106 F.3d 1213, 1217 (5th Cir.

1997).
No. 06-41760

15

The jury found, in connection with Bradley’s conviction,that he was guilty

of a conspiracy involving more than 500 grams but less than 5 kilograms of

cocaine. Bradley’s base offense level was assigned based on an amount of

cocaine above 3.5 kilograms but less than 5 kilograms. U.S.S.G. § 2D1.1(c)(5).

As discussed above, evidence was presented showing that Bradley personally

participated in the distribution of well more than 3.5 kilograms of cocaine. The

district court did not err in sentencing Bradley based on a quantity of drugs that,

consistent with the jury’s finding, the court found that Bradley had distributed.

The courttherefore did not err in denying Bradley an adjustment under § 3B1.2.

d. 

Bradley also contends that he is entitled to resentencing because the

district court failed to explain adequately his sentence. 

In Rita v. United States, the Supreme Court noted that, “when a judge

decides simply to apply the Guidelines to a particular case, doing so will not

necessarily require lengthy explanation.” 127 S.Ct. 2456, 2468 (2007). The

Court added that more than a brief statement may be required when a district

court is presented with nonfrivolous arguments for a sentence outside the

Guidelines. Id. at 2468-69. Nevertheless, the Court concluded that the district

court's reasons for rejecting the defendant's § 3553(a) arguments for a

non-Guidelines sentence in that case were, although brief, legally sufficient. Id.

at 2469. Specifically, the Court noted that the record made clear that the judge

listened to and considered the arguments and evidence but simply found the

circumstances insufficient to warrant a sentence below the Guidelines range.

Id. The judge said that the range was not “inappropriate” and that a sentence

at the bottom of the range was “appropriate.” Id. The Court acknowledged that

the judge might have said more, but was not required to do so. Id.

Here, the district heard Bradley’s arguments and objections to his

sentence. The court adopted the findings, reasoning, and Guidelines calculations
No. 06-41760

16

in the Presentence Report. The court stated that it had considered the

Sentencing Guidelines as well as the provisions of 18 U.S.C. § 3553(a). In the

light of the brief statement of reasons approved in Rita, we cannot say that the

district court here erred by insufficiently explaining its reasons for imposing

Bradley’s sentence. See United States v. Rodriguez, 523 F.3d 519, 525-26 (5th

Cir. 2008).

Finally, Bradley asserts that his 121-month sentence was substantively

unreasonable. This court applies a presumption of reasonableness when

reviewing sentences within a properly-calculated guidelines range. See, e.g.,

United States v. Cisneros-Gutierrez, 517 F.3d 751, 766 (5th Cir. 2008). Bradley

has not overcome that presumption. 

C.

1. 

We now turn to Ordonez’ s challenges to his conviction,first considering his

contention that the evidence against him was insufficient to support the verdict.

Ordonez did not move for a judgment of acquittal. Where a defendant does

not move for a judgment of acquittal, we will reverse the conviction only where

it amounts to a manifest miscarriage of justice,thatis, only ifthe record is devoid

of evidence pointing to guilt. United States v. Valles, 484 F.3d 745, 752-53 (5th

Cir. 2007). Here,the Government presented sufficient evidence that Ordonez was

guilty of both conspiracy to distribute cocaine and conspiracy to distribute

methamphetamine. 

Several witnesses testified that Ordonez was involved in drug-trafficking

activity with Guardiola and another conspirator, Brad Holland. Guardiola

testified that Holland and Ordonez worked together to distribute cocaine, and

that Holland told Guardiola that Ordonez was his source of methamphetamine.

Holland testified that he participated in numerous sales of cocaine and

methamphetamine with Ordonez. Jacqueline Coker, who dated Holland, testified
No. 06-41760

17

that she delivered money for drugs from Ordonez to Holland. Kristi Griffith,

another woman Holland dated, witnessed Holland sell cocaine to Ordonez. When

she was arrested, she was on the way to meet Ordonez to pick up

methamphetamine. Lindsey Bell Drury and Jesse Horne, both Holland’s

customers, testified that, after Holland was arrested, they bought

methamphetamine directly from Ordonez. Kenneth Huddleston testified that he

bought methamphetamine from Holland and Ordonez. 

On the basis of the substantial evidence against Ordonez, we hold that

Ordonez’s conviction does not amount to a manifest miscarriage of justice and

that the evidence is sufficient to support his convictions for conspiracy to

distribute cocaine and conspiracy to distribute methamphetamine. 

2. 

We next consider Ordonez’s argument that the district court erred in its

admission of hearsay testimony by co-conspirators and its instructions relating

to that testimony. Ordonez contends that the district court erred in admitting

hearsay testimony from co-conspirators who were not named in the indictment

on which Ordonez was tried. He contends further that the district court did not

adequately instruct the jury regarding the testimony of co-conspirators.

More specifically, Ordonez contends that the district court erred in its

admission of testimony from witnesses Bradley Holland, Jacqueline Coker,

Kenneth Huddleston, and Jesse Horne. He contends that hearsay evidence was

improperly received because the witnesses were not specifically identified as coconspirators by the indictment or the district court. Ordonez was charged with

two conspiracies, one involving cocaine and another involving methamphetamine,

and he contends that the court should have indicated to the jury which testimony

went to which conspiracy. Ordonez also contends that the district court should

have given cautionary or limiting instructions regarding Brad Holland’s

testimony, as well as that of Coker and Kristi Griffith and should have conducted
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a hearing under United States v. James, 590 F.2d 575 (5th Cir. 1979) (en banc),

to determine whether two conspiracies existed. 

Ordonez did not make these objections attrial, so we review for plain error.

Under the plain error standard, we will reverse only if (1) there is an error, (2)

the error is clear under current law, and (3) the error affects the defendant's

substantial rights. United States v. Garcia Abrego, 141 F.3d 142, 165 (5th Cir.

1998). When the three elements of plain error are present, relief is discretionary

with the court of appeals and should be granted only when a plain error

“seriously affect[s] the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Calverley, 37 F.3d 160, 164 (5th Cir. 1994) (en

banc), abrogated in part on other grounds by Johnson v. United States, 520 U.S.

461, 468 (1997) (quoting United States v. Atkinson, 297 U.S. 157 160 (1936).

For a statement that would otherwise be hearsay to be admissible under

Federal Rule of Evidence 801(d)(2)(E), “[t]here must be evidence that there was

a conspiracy involving the declarant and the nonoffering party, and that the

statement was made ‘during the course and in furtherance of the conspiracy.’”

Bourjaily v. United States, 483 U.S. 171, 175 (1987) (quoting FED. R. EVID.

801(d)(2)(E)). When these predicate facts are challenged, the offering party must

prove them by a preponderance of the evidence. Id. at 181. Here, the district

court found the necessary predicate facts that there was a conspiracy involving

Ordonez and that hearsay statements were made by conspirators during and in

furtherance of the conspiracy. The district court did not err by waiting until the

end oftrialto determine the existence of the Rule 801(d)(2)(E) predicate facts, see

United States v. Fragoso, 978 F.2d 896, 900 (5th Cir. 1992), and Ordonez has not

shown that the district court’s findings were erroneous. 

In giving its preliminary instructions,the court explained the presumption

of innocence, the burden of proof, the credibility of witnesses, and the privilege

against self-incrimination. The indictment was read to the jury and described
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two conspiracies involving different types of drugs. The district court gave

appropriate cautionary instructions at the end of the trial to consider the

unsupported testimony of an accomplice or co-conspirator with great care. The

court further instructed that the jury should never convict a defendant on the

unsupported testimony of an alleged accomplice “unless you believe that

testimony beyond a reasonable doubt.” The court gave detailed instructions

concerning the elements of the charged conspiracies. Each witness’s testimony

made his or her role in the conspiracies clear, as each testified to particular

instances witnessing or participating in Ordonez’s transactions involving cocaine,

methamphetamine, or both. In sum, Ordonez has not shown plain error in the

district court’s instructions to the jury. 

3.

We now consider Ordonez’s contention that the district court erred by

admitting evidence that Ordonez threatened the wife of another witness while

both were incarcerated prior to trial. Ordonez did not object at trial, so we, once

again, review for plain error. 

Jesse Horne testified that, approximately one week prior to trial, as Horne

walked past Ordonez in the recreation area of the jail, Ordonez held up a piece

of paper with Horne’s address and his wife’s first and last names and told Horne

to “be careful.” Horne testified that his wife had a different last name than he

did and that he took the incident as a personal threat to his wife. 

Ordonez contends that the district court erred by allowing extrinsic

evidence that he made a veiled threat against Horne’s wife. He contends that

there was no showing that the Government complied with Rule 404(b) in

disclosing the extraneous offense and the government’s intention to introduce it

at trial. 

As discussed above regarding Lugo’s appeal, evidence of extrinsic bad acts

is admissible if it is relevant to an issue other than the defendant’s character and
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if its probative value is not substantially outweighed by undue prejudice. See

Mitchell, 484 F.3d at 774. We have held that evidence of a threat by a defendant

to an adverse witness is probative of an issue other than character:

consciousness of guilt. United States v. Rocha, 916 F.2d 219, 241 (5th Cir. 1990).

Such evidence indicates “thatthe defendant was conscious of the weakness of his

case [and] creates a compelling inference that the defendant’s case lacks merit.”

Id. Therefore, evidence of Ordonez’s threat is probative of an issue other than

character. Ordonez does not argue that the evidence is more prejudicial than

probative. He has not demonstrated that the district court committed plain error

in admitting evidence of his threat to Horne.

4. 

Finally, we address Ordonez’s argument that the court erred in not

allowing him to call a witness to impeach Brad Holland’s testimony concerning

a collateral matter. 

Holland testified on cross-examination that he sneaked a cell phone into

the Red River County Jail, in violation of jail rules. Holland testified that

someone else brought the phone to the jail and that they were responsible for it,

but that he sneaked the phone in. He admitted that doing so was against the

rules. Ordonez sought to introduce the testimony of Robert Strucker, another

prisoner who was nearby when the contraband phone was brought into the jail

facility. Ordonez sought to show through Strucker’s testimony that Holland was

entirely responsible for the phone and that he attempted to put the blame on

Strucker and Strucker’s fiancée. The district court held a hearing on the issue,

and found that, under Federal Rule of Evidence 403,the probative value was less

than the other considerations in conducting a trial and, alternatively, that the

evidence was impeachment on a collateral matter.

We review properly preserved evidentiary rulings for abuse of discretion.

United States v. Miller, 520 F.3d 504, 510 (5th Cir. 2008). Rule 403 provides that
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relevant evidence “may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, waste of time, or

needless presentation of cumulative evidence.” 

At most, the proffered testimony would have been evidence that Holland’s

testimony had not appropriately allocated responsibility for a violation of jail

rules to which he admitted. The district court’s finding that this evidence was

not of sufficient probative value to merit inclusion in the trial was not an abuse

of discretion. 

V.

For the foregoing reasons, we hold that the district court committed no

reversible error in the conviction and sentencing of Sixto Sanchez Lugo, William

Bradley, or Gerber Ordonez for conspiracy to distribute cocaine under 21 U.S.C.

§ 846 or of Ordonez for conspiracy to distribute methamphetamine under 21

U.S.C. § 846. Their convictions and sentences are therefore

AFFIRMED.