# United States Court of Appeals **for the Fifth Circuit**

No. 21-40162

United States of America,

Plaintiff—Appellee ,

versus
Jose Miguel Montemayor; Marin Macrin Cerda,

Defendants—Appellants

.

Appeal from the United States District Court for the Southern District of Texas USDC No. 7:17-CR-588-6 USDC No. 7:17-CR-588-7

Before Jones, Southwick, and Ho, Circuit Judges

. Leslie H. Southwick, Circuit Judge : Two members of a gr oup of criminals whose bu siness model was to steal drugs and money from other criminal s were jointly tried. The multiple counts in the indictment charged the defendants with offenses involving drugs, firearms, carjackings, and robbe ry. Both defendants were convicted after a jury trial. Amon g the many appellate issues are the propriety of introducing certain evidence gathered from cell phones, possible errors in the description of certain offenses in the indictment and jury instructions, and whether the judge improperly made fact findings about drug quantities. For United States Court of Appeals Fifth Circuit 

### FILED December 19, 2022 Lyle W. Cayce ClerkNo. 21-40162

2 the most part, we AFFIRM. One error requires a REMAND for the
Government to elect between overla pping counts. The Government has conceded evidentiary insufficiencyas to one count, which we REVERSE

. FACTUAL AND PROCEDURAL BACKGROUND
From 2016 to 2017, Jose Migu el Montemayor and Marin Macrin Cerda were part of a “rip crew” th at stole large amounts of drugs from traffickers transporting drugs from Mexi co to the Rio Grande Valley in south Texas. The rip crew’s activities in cluded carjackings, home invasions, and brandishing and discharging firear ms during their operations.
Montemayor and Cerda were indicted in 2017 by a grand jury for the
United States District Court for the So uthern District of Texas. Cerda was charged with 19 counts in the indict ment, and 13 of th ose also charged Montemayor. In 2019, a se ven-day jury trial was co nducted on the charges.
Members of the rip crew testified at trial against Montemayor and
Cerda about their involvement in the offenses. Both were charged with participating in two separate conspira cies: possession with the intent to distribute five kilograms or more of coca ine from on or about July 7, 2016, to on or about June 7, 2017 (Count One) , and possession of a firearm to further a drug conspiracy and a crime of violence (carjackings) (Count Two). Cerda was charged with participating in one ad ditional conspiracy to possess with the intent to distribute 100 kilograms or more of marijuana on or about January 6, 2017 (Count Eighteen).
The rip crew’s significant carjacking s included: (1) a carjacking of a drug trafficker named “Indio” on No vember 28, 2016, and discharging a firearm during a drug trafficking crime (Counts Five and Six); (2) a carjacking
of a Chevrolet Silverado on February 27, 2017, and discharging a firearm during a drug trafficking offense (Count s Seven and Eight); (3) a carjacking at Stripes convenience store on Marc h 12, 2017, and brandishing a firearmNo. 21-40162

3 during a drug trafficking offense and crime of violence (Counts Nine and Ten); and (4) a carjacking of a Chevrole t Cobalt in Las Milpas on April 6, 2017, and brandishing a fi rearm during a drug trafficking offense and crime of violence (Counts Eleven, Twelve, an d Thirteen). Montemayor and Cerda also participated in a home invasion on or about June 6, 2017, through June 7, 2017, when they invade d a home in McAllen, Texas, under the mistaken belief cocaine was stored in the home (Count Sixteen).
Montemayor and Cerda moved for the suppression of evidence
obtained via cell-site location in formation (“CSLI”), as well as the suppression of evidence obtained thro ugh cell-tower dumps. The district court, however, did not reach the merit s of the motion to suppress because it
concluded the defendants lacked stan ding to assert a Fourth Amendment violation inasmuch as they would not stipulate that any phone was theirs.
The jury convicted both men on all counts, 13 for Montemayor and 19 for Cerda. Montemayor’s total senten ce was 1,008 months of imprisonment and five years of supervised release. Cerda received 1,356 months of imprisonment and five years of supervised release. Each defendant timely appealed.

DISCUSSION I. Rule 28(i) adoption of arguments
Preliminarily, the Government argu es Cerda did not validly adopt Montemayor’s arguments in Cerda’s initial brief when he stated he “joins in those points raised by his co-appellant that are relevant to him and consistent
with his interests.” Federal Rule of Appellate Procedure 28(i) states:

In a case involving more thanone appellant or appellee, including consolidated cases, any number of appellants or appellees may join in a brief, and any party may adopt byNo. 21-40162

4 reference a part of another’s brie f. Parties may also join in reply briefs.
“[N]either Rule 28 nor our case la w requires appellees to explain in their filing why joinder is appropriate” ; instead, we “simply requir[e] that the arguments adopted [be] ‘equallyapplicable’ to both parties.” Smith v.
Hood, 900 F.3d 180, 184 n.4 (5th Cir. 20 18). The Government argues Cerda waived his right to appellate review byfailing to delineate which arguments he was adopting, and that “fact-specific challenges to [a defendant’s] own conviction or sentence” cannot be adopted. United States v. Alix , 86 F.3d 429, 434 n.2 (5th Cir. 1996).

It could well be that Cerda’s identi fication of issues was impermissibly obscure in his initial brief, but in his reply brief, Cerda specified the arguments he was seeking to adopt. Generally, argu ments made for the first time in a reply brief are made too late. United States v. Myers , 772 F.3d 213, 218 (5th Cir. 2014). That principl e should apply to clarifications of incorporation, too. Nonetheless, in light of the fact the Government has responded in its briefing to the co defendant’s identical arguments, we
exercise our discretion to consider the arguments as adopted under Rule 28(i). See id.
II. Motion to suppress evidence
The district court denied the defendants’ motion to suppress certain evidence about cell phones. When re viewing the denial of a motion to suppress, we review “factual findings for clear error and legal conclusions about the constitutionality of the conduct of law enforcement officers de

novo .” United States v. Beene , 818 F.3d 157, 161 (5th Cir. 2016). “Factual findings are clearly erroneous only if a review of the record leaves this Court
with a definite and firm conviction that a mistake has been committed.”
United States v. Hearn , 563 F.3d 95, 101 (5th Cir. 2009) (quotation marks andNo. 21-40162

5 citation omitted). Conversely, factual findings are “not clearly erroneous if it is plausible in light of the record as a whole.” United States v. Zuniga , 720 F.3d 587, 590 (5th Cir. 2013). The court considers evidence “taken both at the suppression hearing and at trial in the light most favorable to the ruling.”
United States v. Rideau , 969 F.2d 1572, 1576 (5th Cir. 1992).
To support a Fourth Amendment viol ation, a defendant must have “a legitimate expectation of privacy in the invaded place” or thing. United
States v. Iraheta , 764 F.3d 455, 461 (5th Cir. 2014) (quotation marks and citation omitted). Montemayor and Cerda ar gue the district court erred when it denied their joint motion to suppress evidence obtained via CSLI and evidence obtained through cell-tower dumps. The district court determined the defendants lacked standing for a Fo urth Amendment challenge and, therefore, the court did not analyze suppression under Carpenter v. United States , 138 S. Ct. 2206 (2018).
Even though one phone appeared to be registered to Montemayor, the
district court concluded he lacked stan ding because he “dec lined to stipulate to ownership of any phone.” The court found the following:

Defendants have made no claim that they had a subjective expectation of privacy in the ph ones at issue. Second, and perhaps more importantly, Defendants have made no claim whatsoever that either was ever in lawful possessi on or control of the phones in question or that either had any right to use or access, much less exclude others from use and access of the phones. To the contrary, Defend ants have explicitly denied the “use, possession, or ownership of the cell phones the subject of the[] records” at issu e. Even Mont emayor, to whom one of the phones is apparently registered, has “respectfully declined to stipulate to ownership of any phone.”
Montemayor seeks to establish standing to challenge the Fourth Amendment violation through circumstantial evidence. The GovernmentNo. 21-40162

6 argues Montemayor disclaimed or reno unced any privacy interest he may have had by failing to stipulate to ow nership of the phones. In reply, Montemayor argues he did not disclaim a privacy interest. Instead, he declined to stipulate because he in voked his Fifth Amendment right to
remain silent.
Montemayor presents an argument that apparently has yet to be explored in our precedent. We pretermi t addressing this difficult question of
the intersection between a defendant’ s Fourth and Fifth Amendment rights because the denial of the motion to suppress did not prejudice defendants.
There is substantial evidence in the re cord to support the convictions under Counts Eleven, Twelve, Thirteen, and Sixteen, without the evidence
obtained via CSLI or the cell-tower dum ps. The jury credited the testimony of numerous members of the rip crew who pa rticipated in the carjackings and home invasion that predicate these counts. Thus, no reversible error occurred in denying the motion to suppress.
III. Double Jeopardy violations
Both defendants argue that conv ictions on two different pairs of
counts violated the Fifth Amendment Double Jeopardy Clause. We begin with Counts Six and Eight — dischargin g a firearm during the carjacking of a drug trafficker on November 28, 2016; and discharging a firearm during a drug trafficking crime during the carj acking of a Chevrolet Silverado on February 27, 2017. The defendants we re convicted of one drug trafficking conspiracy, Count One, but two counts of discharging a firearm. They received consecutive sentences for sepa rate Section 924(c)(1) violations. Though the two counts alle ge separate incidents on different dates, multiple firearm counts cannot be predicated on the same conspiracy: “[i]mposing
consecutive sentences in these circumstances is inconsistent with the rule in
this circuit.” United States v. Baptiste , 309 F.3d 274, 278 (5th Cir. 2002). WeNo. 21-40162

7 require each firearms conviction under Section 924(c)(1) to be “sufficiently linked to a separate drug trafficking offense”; otherwise, double jeopardy
exists. Id. at 279 (quotation marks and citation omitted).
Though there was no objection on th is basis in district court, the
Government concedes these two counts violate double jeopardy because they were predicated on the same conspira cy offense. The dr ug conspiracy was the only predicate offense for each of these counts. The Government states, and we agree, the convictions on those two counts must be vacated and, on remand, the Government will be required to elect which count to dismiss.
Next, we consider Counts Ten an d Thirteen. Count Ten charged both defendants with brandishing a firearm during and in relation to a drug trafficking offense and during a crime of violence. We will explain why the crime of violence would have been understood by jurors as a carjacking at Stripes convenience store on March 12, 2017. Count Thirt een charged both defendants with brandishing a firearm during a drug trafficking offense and during the carjacking of a Chevrolet Cobaltin Las Milpas on April 6, 2017. Montemayor and Cerda argue it is ambiguous whether Counts Ten and Thirteen were predicated on different offenses, and they assert the two
counts were based on either the Count One drug conspiracy or an unspecified carjacking. The Government disagrees and relies on the fact that Counts Ten and Thirteen each had two predic ate offenses — the Count One drug conspiracy and separate carjackings. The Government argues the double jeopardy issue arising from the single drug trafficking offense is irrelevant because no such defect applies to th e separate crimes of violence.

We examine the issue. Because defend ants did not object on this basis in district court, we review for plain error. See United States v. Njoku , 737 F.3d 55, 67 (5th Cir. 2013). To establish plain error, “a defendant must show (1) error, (2) that is clear or obvious, and (3) that affected the defendant’sNo. 21-40162

8 substantial rights.” United States v. Hinojosa , 749 F.3d 407, 411 (5th Cir. 2014). The third step of the analysis may be satisfied by showing “a reasonable probability that, but for th e error, the outcome of the proceeding
would have been different.” Molina-Martinez v. United States , 578 U.S. 189, 194 (2016) (quotation marks and cita tion omitted). If the defendant establishes these first three steps, th en the court “may in its discretion remedy the error only if it (4) seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Hinojosa , 749 F.3d at 411 (quotation marks and citation omitte d) (alteration in original).
Section 924(c)(1)(A) sets out the penalty for those who “use[] or carr[y] a firearm, or who, in furt herance of any such crime, possess[] a firearm” “during and in relati on to any crime of violence or drug trafficking crime.” 18 U.S.C. § 924(c)(1)(A) (emp hasis added). We just discussed that the Section 924(c) offenses charged in Counts Six and Eight were improperly linked to the same drug trafficking offense. Counts Ten and Thirteen, though, were predicated both on an o ffense of drug trafficking and on a crime
of violence. See United States v. Privette , 947 F.2d 1259, 1262–63 (5th Cir. 1991). Thus, as to those coun ts, there is more to examine.
Here, the jury returned a general ju ry verdict that did not specify on which conspiracy or carjacking offense the firearms convictions were based. Count Ten charged the following Section 924(c) offense:

On or about March 12, 2017, in the Southern District of Texas and within the jurisdiction of the Court, defendants, Marin Macrin Cerda also known as “Filtro” [and] Jose Miguel Montemayor also known as “El Mickey”. . . aiding and abetting each other and othe rs, did knowingly brandish a firearm, during and in relation to a drug trafficking offense and crime of violence for which theymay be prosecut ed in a court of the United States, namely, Co nspiracy to Possess with Intent to Distribute a Controlled Substance, to wit a mixture orNo. 21-40162

9 substance containing a detectab le amount of cocaine, in violation of Title 21 United States Code Sections 841 and 846 and Carjacking in violation of Title 18 United States Code Section 2119. All in violation of Title 18, United States Code, Sections 924(c)(1)(A)(ii) and 2.
Count Thirteen charged the follo wing Section 924(c) offense:

On or about April 7, 2017, in the Southern District of Texas and within the jurisdiction of the Court, defendants, Marin Macrin Cerda also known as “Filtro” and Jose Miguel Montemayor also known as “El Mickey” aiding and abetting each other and others, did knowingly discharge a firearm, during and in relation to a drug trafficking offense and crime of violence for which they may be prosecuted in a court of the United States, namely, Conspiracy to Possess with Intent to Distribute a Controlled Subs tance, to wit a mixture or substance containing a detectab le amount of cocaine, in violation of Title 21 United St ates Code Sections 841 and 846, [and] Carjacking in violation of Title 18 United States Code Section 2119 . . . . In violation of Title 18, United States Code, Sections 924(c)(1)(A)(iii) and 2. Montemayor argues it is unclear fr om the general jury verdict form “whether the jury found beyond a reasonable doubt that the convictions were based on the drug conspiracy[,] a carj acking[,] or both.” He relies on a precedent in which we vacated multiple Section 924 convictions because the jury verdict form “did not require the jury to specify which predicate offense or offenses it relied upon in convicting” the defendants. United States v.
Jones , 935 F.3d 266, 269 (5th Cir. 2019). He further argues this error affected his substantial rights “because the outc ome at trial may ha ve been different absent the inclusion of the invalid drug conspiracy predicate” for Counts Ten
and Thirteen.No. 21-40162

10 It is true that the verdict form di d not require jurors to specify the predicate offenses on which they re lied. The verdict form was similarly unenlightening in Jones

. Id. The reason for reversal in Jones was that jurors were given two theories of guilt, and so me jurors may have accepted only the
invalid one. Id. at 270. Unlike in Jones , though, neither defendant here argues the evidence is in sufficient to support the different carjackings for the two counts. At least under plain error review, we cannot conclude that the substantial rights of the defendants we re affected. The double jeopardy problem that caused us to remand on Counts Six and Eight does not cause us
to do the same for Counts Ten and Thir teen because it is harmless. We explain.
Counts Ten and Thirteen charged the defendants with brandishing and discharging a firearm “during and in relation to a drug trafficking offense and a crime of violence.” Though neithe r of those counts expressly identifies the crime of violence, each count is immediately preceded in the indictment by the relevant count for a crime of vi olence. Count Nine of the indictment identifies the same named defendants as Count Ten, shows the same date for the offense, and details a carjacking. Counts Eleven an d Twelve of the indictment charge the same two defend ants as Count Thirteen, describe offenses of the same date, and charge both a carjacking and a robbery by force, violence, or threat. The identical date s and defendants are clearly shown on the verdict form setting out the elements of each count an d provide a blank for the jury to indicate whether each defendant was found guilty or not. No party discusses whether any part of closing argument or any oral instructions from the court might have tied the co unts together even more clearly. Regardless, we find the connections of Counts Nine and Ten, and of Counts Eleven, Twelve, and Thirt een, to be unambiguous.
As to the evidence, the brandish ing and discharging of a firearm during each of the carjackings in Counts Nine and Eleven was undisputed.No. 21-40162

11 Based on this record, we can perceive no juror uncertainty when finding the defendants guilty of brandishing a fi rearm during an actual or attempted carjacking. The predicate drug traffick ing offense is inconsequential to the validity of the finding of guilt on Coun ts Ten and Thirteen, meaning there is neither a double jeopardy problem nor a risk that jurors relied only on an improper predicate offense.
IV. The jury was required to determine the drug quantity
For the first time on appeal, Montemayor and Cerda argue that the district court plainly erred when it failed to have the jury resolve the factual issue of the drug quantity relevant fortheir convictions for conspiracy to possess with intent to distribute five kilograms or more of cocaine (Count One). Instead, the district court made this determination at sentencing. Montemayor and Cerda argue this error affected their substantial rights because the district court used that determination to impose a mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(A)(ii).
The defendants rely on two differentprecedents. In the earlier one, the Supreme Court held that any factthat enhances a statutory minimum penalty must be proved beyond a reasonable doubt to the jury. Alleyne v.
United States , 570 U.S. 99, 115–16 (2013). Two years later, this court explained we have always “limited the defendant’s liability to the quantity of drugs with which he was directly involv ed or that was reasonably foreseeable
to him.” United States v. Haines , 803 F.3d 713, 740 (5th Cir. 2015). In a drug conspiracy case, “for purposes of st atutory minimums at sentencing, the relevant quantity is the quantity attrib utable to the individual defendant.” Id. at 742. The Supreme Court’s “longs tanding rule” requires juries to
determine “the amount which each de fendant knew or should have known was involved in the conspiracy.” Id. at 741 (quotation marks and citation omitted). We have added to that requ irement that a jury needs to make theNo. 21-40162

12 individualized determination of the dr ug type and quantity for which each defendant is responsible. Id. at 742. Clearly, the jury should have b een given the factual issue of the relevant drug quantities. Because there was no objectio n at trial, we consider whether the error was clear or obvious, whether it affected the defendants’ substantial rights, and, if all of that, al so whether such error “seriously affects the fairness, integrity[,] or public re putation of judicial proceedings.” Hinojosa , 749 F.3d at 411 (quotation marks and citation omitted).
Here, a grand jury charged Montemayor and Cerda with conspiracy to possess with intent to distribute five kilograms or more of a mixture or substance containing a detectable am ount of cocaine (Count One). This charge carries a mandatory minimum term of 10 years’ imprisonment and a
maximum term of life. 21 U.S.C. § 841(b)(1)(A)(ii) . The trial jury found the
overall conspiracy involved five kilograms or more of a mixture or substance containing a detectable amount of cocaine.
We are satisfied that plain error ex ists if the “judge determined the drug quantities attributable to each defendant, rather than submitting that question to the jury.” United States v. Benitez , 809 F.3d 243, 250 (5th Cir. 2015). That occurred here. The Gove rnment concedes the district court committed a clear and obvious error; therefore, the first two steps of plain
error review are satisfied.

As for whether the defendants’ subs tantial rights were affected, the Government does not respond to Mont emayor and Cerda’s arguments. Both defendants argue the district court’s e rror affected their substantial rights because the court erroneously viewed the statutory mandatory minimum to be 10 years for the drug conspiracy. Th is “mistaken belief” factored into the remaining sentences imposed, creating what they argue is a reasonable probability the outcome would have be en different absent the error.No. 21-40162

13 Montemayor and Cerda contend the district court “incorrectly concluded that it lacked discretion to go belo w a ten-year term of imprisonment, when
in fact no minimum term existed” beca use the drug quantity attributable to them was never proven beyond a reasonable doubt to the jury. For purposes of this appeal, we accept that these defendants’ substantial rights were
affected.
The final consideration for plain error turns on whether “the error seriously affects the fairness, integrity[ ,] or public reputation of judicial proceedings.” Molina-Martinez , 578 U.S. at 194 (quotation marks and citation omitted). The Government argues the error did not seriously affect the fairness, integrity, or public reputation of the criminal proceedings because “the evidence amply supports the jury’s finding that it was reasonably foreseeable” to Montemayor and Cerda that the conspiracy
involved over five kilo grams of cocaine.
To support its position, the Govern ment relies on one of our opinions in which neither the indictment nor the ju ry charge alleged a drug quantity to support an enhancement to the statutory maximum penalty. United States v.
Randle , 304 F.3d 373, 376–77 (5th Cir. 2002). In Randle , we applied the Supreme Court’s decision in United States v. Cotton , 535 U.S. 625 (2002). We analyzed whether the indictment’s fa ilure to allege a drug quantity, and a jury’s failure to find a drug quanti ty, for a drug-related offense constituted plain error. Id. at 376–378. The defendan t was sentenced above the 240- month maximum sentence allowed under 21 U.S.C. § 841(b)(1)(C), which does not require proof of a minimum drug quantity. Id. at 375–76. The increased sentence did not seriously affe ct the integrity, fairness, or public reputation of the criminal proceedings under the fourth step of plain error review because there was overwhelming and indisputable evidence that the defendant was responsible for the drugquantity for which he was held
accountable. Id. at 376–78; see also Cotton , 535 U.S. at 632–34.No. 21-40162

14 Montemayor and Cerda assert this 20 -year-old opinion is inapplicable because of the Supreme Cour t’s more recent opinion, Rosales-Mireles v.
United States , 138 S. Ct. 1897 (2018). There, the Supreme Court rejected our court’s “shock the conscience” approach to the fourth step of plain error
review. Rosales-Mireles , 138 S. Ct. at 1905–06. In the context of imprisonment, “the failure to correct a plain Guidelines error that affects a defendant’s substantial rights” satisfies the fourth step. Id. at 1911. Therefore, “[b]efore a court of ap peals can consider the substantive reasonableness of a sentence, ‘[i]t must first ensure that the district court committed no significant procedural erro r, such as failin g to calculate (or improperly calculating) th e Guidelines range.’” Id. at 1910 (quoting Gall v.
United States , 552 U.S. 38, 51 (2007)). Irrespective of the ultimate reasonableness, “a sentence that lacks reliability because of unjust procedures may well undermine public perception of the proceedings.” Id. “[W]hat reasonable citizen wouldn’t be ar a rightly diminished view of the judicial process and its inte grity if courts refused to correct obvious errors of their own devise that threaten to requir e individuals to linger longer in federal prison than the law demands?” Id. at 1908 (quoting United States v. Sabillon–
Umana , 772 F.3d 1328, 1333–1334 (10th Cir. 2014)).
We applied the Rosales-Mireles logic to supervised release in United States v. Campos , 922 F.3d 686, 688–89 (5th Cir. 2019). There, the district court imposed eight years of supervised release under the mistaken belief that a mandatory minimum controlled. Campos , 922 F.3d at 689. We held this was plain error under the fourth step because this presumption “alter[ed] the manner in which the district court approached its decision.” Id.
In this case, there is overwhelmingevidence to support the jury’s finding that the conspiracy between Montemayor and Cerda involved more than five kilograms of cocaine. Accord ingly, though we agree it was plainNo. 21-40162

15 error for the district court not to ha ve the jury make the required drug quantity determinations for each defe ndant, the defendants have not shown that the fairness, integrity, or public reputation of the judicial proceedings was seriously affected.
V. Conflation of Section 924(c)(1)(A) standards
Next, we consider whether it was plain error for the district court to allow the indictment, the jury instruct ions, the jury verdict form, and the Government’s arguments to conflate or otherwise confuse the standards required under 18 U.S.C. § 924(c)(1 )(A) for Count Two — conspiracy to possess a firearm during and in relation to a drug trafficking offense and crime of violence. Because Montemayor did no t raise this issue below, it is reviewed for plain error. See United States v. McGilberry , 480 F.3d 326, 328– 29 (5th Cir. 2007).

An indictment is sufficient when: “(1) each count contains all essential elements of the offense charged, (2) the elements are charged with particularity, and (3) the charge is spec ific enough to preclude a subsequent prosecution on the same offense.” McGilberry , 480 F.3d at 329. The problem here is that the relevant statute, Section 924(c)(1)(A), identifies “two different types of cond uct: the use or carrying of a firearm ‘during and in relation to any crime of violence or dr ug trafficking crime’ and the possession of a firearm ‘in furt herance of any such crime.’” United States v. Cooper, 714 F.3d 873, 877 (5th Cir. 2013 ) (quoting § 924(c)(1)(A)). Count Two of the indictment improperly combined the conduct standard of “possession” with the participation stan dard of “during and in relation to a drug trafficking offense and crime of violence.” The Government concedes Count Two of the indictment is plai nly erroneous. The Government, however, contends the final consideration in plain error review is not satisfied
because “the erroneous combinatio n of the elements of the [Section]No. 21-40162

16 924(c)(1) offenses in the indictment and elsewhere did not affect the integrity of the proceedings.” 1 We consider if that characterization is correct.
Montemayor and Cerda argue their ri ghts were violated when they were convicted of a non-existent offense, which necessarily “affects the fairness, integrity[,] or public repu tation of judicial proceedings.” MolinaMartinez , 578 U.S. at 194 (quoting United States v. Olano , 507 U.S. 725, 736 (1993). The Government argues, though that “ample evidence exists of Montemayor’s [and Cerda’s] agreement to participate in the higher conduct ( i.e ., use or carry) with the high er degree of participation ( i.e ., during and in relation to).” Thus, fairness, integrity, and public reputation are unaffected.
We considered a nearlyidentical error in McGilberry , 480 F.3d 326. There, the indictment erroneously ch arged possession of a firearm during and in relation to a drug trafficking crime in violatio n of Section 924(c)(1)(A).
Id. at 328–29. The improper combinatio n of the lower conduct standard with the lower participation standard in the crime failed to set forth the essential elements of any criminal conduct; therefor e, the first two steps of plain-error analysis were satisfied. Id. at 331. The court skip ped the third step and considered the effect of this error on the fairness, integrity, or public reputation of the judicial proceedings. Id. Affirmance would not undermine
those considerations because sufficientevidence of usin g and carrying the
firearm existed. Id. at 330–331. It would have been unreasonable for a jury to find McGilberry possessed the firearm but did not use or carry it. Id. Witnesses testified that McGilberry po ssessed the gun sitting on the table

1 When an indictment is questioned on appeal under plain error review, the third step is typically skipped. “[I]t is unclear what type of showing must be made to prove that a defective indictment affected substantial rights.” McGilberry , 480 F.3d at 330. “The Supreme Court has repeatedly avoided answering that question, and instead chosen to skip this step in the plain error analysis when defective indictments are at issue.” Id.No. 21-40162

17 directly in front of him. Id. at 331. “[Section] 924 ‘certainly includes brandishing [and] displaying’ a fire arm as methods of using it.” Id. (quoting Bailey v. United States , 516 U.S. 137, 148 (1995)).
Applying this reasoning, we start with the fact that Montemayor and Cerda were charged with conspiracy to commit a firearm offense in violation of Section 924(o), not the substantive firearm offense in violation of Section 924(c). To sustain a conspiracy convic tion, the Government needed to prove (1) there was an agreement by two or more people to commit a crime (drug trafficking conspiracy or carjacking); (2) Montemayor and Cerda had knowledge of the agreement’s unlawful purpose; and (3) they voluntarily participated in it. See United States v. McClaren , 13 F.4th 386, 414 (5th Cir. 2021). Participation in the conspira cy can be inferred from a defendant’s
conduct and the circumstances. United States v. Harris , 740 F.3d 956, 962– 63 (5th Cir. 2014).
Undisputed testimony from numerous co-conspirators established that Montemayor and Cerda agreed to us e firearms during a drug trafficking
crime or crime of violence. Because sufficient evidence exists of these defendants’ agreement to participate in the higher conduct (use or carry) with the higher degree of participation (during and in relation to), fairness, integrity, and public reputation of th e proceedings were not affected. See McGilberry , 480 F.3d at 331 (citing Bailey , 516 U.S. at 148 and Muscarello v.
United States , 524 U.S. 125, 136 (1998)). No plain error occurred.
VI. Spanish spoken during trial
Finally, we consider whether Cerd a was deprived of his Sixth and Fourteenth Amendment rights to a fair trial and due process because the district court judge occasionally and briefly spoke in untranslated Spanish during the trial. There is no tr anscript of the comments made and, apparently, no means to reconstruct whatwas said. We reject that this wasNo. 21-40162

18 structural error, i.e. , a “constitutional error th at ‘affects the framework within which the trial proceeds,’ rather than being ‘simply an error in the trial process itself.’” Jones , 935 F.3d at 270 (quoting Weaver v. Massachusetts , 137 S. Ct. 1899, 1907 (2017)).
Instead, because there was no object ion, we review for plain error. The Government argues there is no erro r, plain or otherwise, because Cerda “does not explain how the district court’s brief comments in Spanish prejudiced him or his defense.” Fu rther, Cerda does not challenge the sufficiency of the evidence to support his 19 counts of conviction. Cerda argues, “on appellate review, the partie s and the reviewing court should not have to guess what was said at trial by looking to the surrounding words in
the record for clues.”

Cerda refers to 23 instances in th e record where the district court judge speaks in untranslated and untranscribed Spanish in the presence of the jury. One factor in what to make of this — and perhaps to explain why the district judge occasionally spoke in Sp anish — is that the trial was conducted in McAllen in southern Texas, near the Rio Grande, where a substantial number of Spanish speake rs live and would be juro rs and witnesses. Our
review of the trial record reveals thatthe judge’s comments generally were brief and made when witnesses approached or stepped down from the stand. The comments likely often, if not always, were courtesies related to transitions in the trial proceedings and had no substantive content. Further, counsel made no objections at trial. It could well be that defense counsel perfectly understood what the districtcourt judge said, but now, through different counsel, error is asserted.

Before these isolated occasions — to which there was no objection — can be a viable issue for appellate re view, the appellant must provide more
than has been shown here.No. 21-40162

19 Having declined to reverse, we still caution that all proceedings should be in English or translated into English for the record. Not only is there a potential issue on appeal of untranscribed and untranslated statements by the district judge, but issues also could aris e from the fact that some jurors might not understand Spanish. A prospective juror must be able to understand English, but there is no requiremen t jurors know any other language. See 28 U.S.C. § 1865(b)(3). To leave a su bset of jurors confused and even suspicious about what the presiding ju dge is saying is undesirable. We suggest that if a district judge believes it necessary to use Spanish quite briefly and occasionally for nonsubstantive matte rs, its use should occur only if all
counsel are shown on the record as also being able to understand Spanish — to avoid an appellate issue like the on e before us — and that the judge make an immediate summary translation of what was said.

VII. Count Seventeen
Montemayor and Cerda challenge the sufficiency of the evidence to support Count Seventeen, which charged the commission of a firearms offense during and in relation to a co nspiracy to possess with intent to
distribute a mixture or substance contai ning a detectable amount of cocaine and marijuana. The Government agrees with the defendants that there was insufficient evidence to support the co nviction. We therefore reverse both
defendants’ convictions under Count Seventeen.

* * *
We VACATE and REMAND the judg ment of conviction on Counts Six and Eight for resentencing, REVE RSE the judgment of conviction on
Count Seventeen and REMAND for entry of a judgment of acquittal, and AFFIRM in all other respects.