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 group of criminals whose business model was to 

steal drugs and money from other criminals were jointly tried. The multiple 

counts in the indictment charged the defendants with offenses involving 

drugs, firearms, carjackings, and robbery. Both defendants were convicted 

after a jury trial. Among 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 

Clerk 
No. 21-40162 

2 

the most part, we AFFIRM. One error requires a REMAND for the 

Government to elect between overlapping counts. The Government has 

conceded evidentiary insufficiency as to one count, which we REVERSE. 

FACTUAL AND PROCEDURAL BACKGROUND 

From 2016 to 2017, Jose Miguel Montemayor and Marin Macrin 

Cerda were part of a “rip crew” that stole large amounts of drugs from 

traffickers transporting drugs from Mexico to the Rio Grande Valley in south 

Texas. The rip crew’s activities included carjackings, home invasions, and 

brandishing and discharging firearms during their operations. 

Montemayor and Cerda were indicted in 2017 by a grand jury for the 

United States District Court for the Southern District of Texas. Cerda was 

charged with 19 counts in the indictment, and 13 of those also charged 

Montemayor. In 2019, a seven-day jury trial was conducted 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 conspiracies: possession with the intent to 

distribute five kilograms or more of cocaine 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 additional 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 carjackings included: (1) a carjacking of a 

drug trafficker named “Indio” on November 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 (Counts Seven and Eight); (3) a carjacking 

at Stripes convenience store on March 12, 2017, and brandishing a firearm 
No. 21-40162 

3 

during a drug trafficking offense and crime of violence (Counts Nine and 

Ten); and (4) a carjacking of a Chevrolet Cobalt in Las Milpas on April 6, 

2017, and brandishing a firearm during a drug trafficking offense and crime 

of violence (Counts Eleven, Twelve, and Thirteen). Montemayor and Cerda 

also participated in a home invasion on or about June 6, 2017, through June 

7, 2017, when they invaded 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 information (“CSLI”), as well as the 

suppression of evidence obtained through cell-tower dumps. The district 

court, however, did not reach the merits of the motion to suppress because it 

concluded the defendants lacked standing 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 sentence 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 argues 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 than one appellant or appellee, 

including consolidated cases, any number of appellants or 

appellees may join in a brief, and any party may adopt by 
No. 21-40162 

4 

reference a part of another’s brief. Parties may also join in 

reply briefs. 

 “[N]either Rule 28 nor our case law requires appellees to explain in 

their filing why joinder is appropriate”; instead, we “simply requir[e] that 

the arguments adopted [be] ‘equally applicable’ to both parties.” Smith v. 

Hood, 900 F.3d 180, 184 n.4 (5th Cir. 2018). The Government argues Cerda 

waived his right to appellate review by failing 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 identification of issues was impermissibly 

obscure in his initial brief, but in his reply brief, Cerda specified the 

arguments he was seeking to adopt. Generally, arguments 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 principle should apply to clarifications of 

incorporation, too. Nonetheless, in light of the fact the Government has 

responded in its briefing to the codefendant’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 reviewing 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 and 
No. 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 violation, 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 argue 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 Fourth 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 standing because he “declined 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 phones at issue. Second, and 

perhaps more importantly, Defendants have made no claim 

whatsoever that either was ever in lawful possession 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, Defendants have explicitly denied 

the “use, possession, or ownership of the cell phones the 

subject of the[] records” at issue. Even Montemayor, 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 Government 
No. 21-40162 

6 

argues Montemayor disclaimed or renounced any privacy interest he may 

have had by failing to stipulate to ownership of the phones. In reply, 

Montemayor argues he did not disclaim a privacy interest. Instead, he 

declined to stipulate because he invoked his Fifth Amendment right to 

remain silent. 

Montemayor presents an argument that apparently has yet to be 

explored in our precedent. We pretermit 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 record to support the convictions under 

Counts Eleven, Twelve, Thirteen, and Sixteen, without the evidence 

obtained via CSLI or the cell-tower dumps. The jury credited the testimony 

of numerous members of the rip crew who participated 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 convictions on two different pairs of 

counts violated the Fifth Amendment Double Jeopardy Clause. We begin 

with Counts Six and Eight — discharging a firearm during the carjacking of 

a drug trafficker on November 28, 2016; and discharging a firearm during a 

drug trafficking crime during the carjacking of a Chevrolet Silverado on 

February 27, 2017. The defendants were convicted of one drug trafficking 

conspiracy, Count One, but two counts of discharging a firearm. They 

received consecutive sentences for separate Section 924(c)(1) violations. 

Though the two counts allege 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). We 
No. 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 this basis in district court, the 

Government concedes these two counts violate double jeopardy because they 

were predicated on the same conspiracy offense. The drug 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 and 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 Thirteen charged both 

defendants with brandishing a firearm during a drug trafficking offense and

during the carjacking of a Chevrolet Cobalt in 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 predicate 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 the separate crimes of violence. 

We examine the issue. Because defendants 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’s 
No. 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 the error, the outcome of the proceeding 

would have been different.” Molina-Martinez v. United States, 578 U.S. 189, 

194 (2016) (quotation marks and citation omitted). If the defendant 

establishes these first three steps, then 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 omitted) (alteration in original). 

Section 924(c)(1)(A) sets out the penalty for those who “use[] or 

carr[y] a firearm, or who, in furtherance of any such crime, possess[] a 

firearm” “during and in relation to any crime of violence or drug trafficking 

crime.” 18 U.S.C. § 924(c)(1)(A) (emphasis 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 offense 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 counts, there is more to examine. 

Here, the jury returned a general jury 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 others, did knowingly brandish 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 Substance, to wit a mixture or 
No. 21-40162 

9 

substance containing a detectable 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 following 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 Substance, to wit a mixture or 

substance containing a detectable 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 . . . . In violation of Title 18, United States Code, 

Sections 924(c)(1)(A)(iii) and 2. 

Montemayor argues it is unclear from the general jury verdict form 

“whether the jury found beyond a reasonable doubt that the convictions were 

based on the drug conspiracy[,] a carjacking[,] 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 outcome at trial may have 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 did not require jurors to specify the 

predicate offenses on which they relied. 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 some jurors may have accepted only the 

invalid one. Id. at 270. Unlike in Jones, though, neither defendant here 

argues the evidence is insufficient 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 were 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 Thirteen 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 neither 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 violence. 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 and Twelve of the 

indictment charge the same two defendants as Count Thirteen, describe 

offenses of the same date, and charge both a carjacking and a robbery by force, 

violence, or threat. The identical dates and defendants are clearly shown on 

the verdict form setting out the elements of each count and 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 counts together even more clearly. 

Regardless, we find the connections of Counts Nine and Ten, and of Counts 

Eleven, Twelve, and Thirteen, to be unambiguous. 

As to the evidence, the brandishing 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 firearm during an actual or attempted 

carjacking. The predicate drug trafficking offense is inconsequential to the 

validity of the finding of guilt on Counts 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 for their 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 different precedents. In the earlier one, 

the Supreme Court held that any fact that 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 involved 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 statutory minimums at sentencing, the 

relevant quantity is the quantity attributable to the individual defendant.” Id.

at 742. The Supreme Court’s “longstanding rule” requires juries to 

determine “the amount which each defendant knew or should have known 

was involved in the conspiracy.” Id. at 741 (quotation marks and citation 

omitted). We have added to that requirement that a jury needs to make the 
No. 21-40162 

12 

individualized determination of the drug type and quantity for which each 

defendant is responsible. Id. at 742. 

Clearly, the jury should have been given the factual issue of the 

relevant drug quantities. Because there was no objection at trial, we consider 

whether the error was clear or obvious, whether it affected the defendants’ 

substantial rights, and, if all of that, also whether such error “seriously affects 

the fairness, integrity[,] or public reputation 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 amount 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 exists 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 Government 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’ substantial rights were affected, the 

Government does not respond to Montemayor and Cerda’s arguments. Both 

defendants argue the district court’s error affected their substantial rights 

because the court erroneously viewed the statutory mandatory minimum to 

be 10 years for the drug conspiracy. This “mistaken belief” factored into the 

remaining sentences imposed, creating what they argue is a reasonable 

probability the outcome would have been different absent the error. 
No. 21-40162 

13 

Montemayor and Cerda contend the district court “incorrectly concluded 

that it lacked discretion to go below a ten-year term of imprisonment, when 

in fact no minimum term existed” because 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 kilograms of cocaine. 

To support its position, the Government relies on one of our opinions 

in which neither the indictment nor the jury 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 failure to allege a drug quantity, and 

a jury’s failure to find a drug quantity, for a drug-related offense constituted 

plain error. Id. at 376–378. The defendant 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 affect 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 drug quantity 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 Court’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 appeals can consider the substantive 

reasonableness of a sentence, ‘[i]t must first ensure that the district court 

committed no significant procedural error, such as failing to calculate (or 

improperly calculating) the 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 bear a rightly diminished view of the 

judicial process and its integrity if courts refused to correct obvious errors of 

their own devise that threaten to require 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 overwhelming evidence to support the jury’s 

finding that the conspiracy between Montemayor and Cerda involved more 

than five kilograms of cocaine. Accordingly, though we agree it was plain 
No. 21-40162 

15 

error for the district court not to have the jury make the required drug 

quantity determinations for each defendant, 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 instructions, 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 not 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 specific 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 conduct: the use or carrying of a firearm 

‘during and in relation to any crime of violence or drug trafficking crime’ and 

the possession of a firearm ‘in furtherance 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 standard of “during and in relation to a 

drug trafficking offense and crime of violence.” The Government concedes 

Count Two of the indictment is plainly erroneous. The Government, 

however, contends the final consideration in plain error review is not satisfied 

because “the erroneous combination 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 rights were violated when they 

were convicted of a non-existent offense, which necessarily “affects the 

fairness, integrity[,] or public reputation 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 higher degree of participation (i.e., during and in 

relation to).” Thus, fairness, integrity, and public reputation are unaffected. 

We considered a nearly identical error in McGilberry, 480 F.3d 326. 

There, the indictment erroneously charged possession of a firearm during 

and in relation to a drug trafficking crime in violation of Section 924(c)(1)(A). 

Id. at 328–29. The improper combination of the lower conduct standard with 

the lower participation standard in the crime failed to set forth the essential 

elements of any criminal conduct; therefore, the first two steps of plain-error 

analysis were satisfied. Id. at 331. The court skipped 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 sufficient evidence of using 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 possessed 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 firearm 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 conviction, 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 conspiracy 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 use 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 the 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 Cerda 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 transcript of the comments made and, 

apparently, no means to reconstruct what was said. We reject that this was 
No. 21-40162 

18 

structural error, i.e., a “constitutional error that ‘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 objection, we review for plain error. 

The Government argues there is no error, plain or otherwise, because Cerda 

“does not explain how the district court’s brief comments in Spanish 

prejudiced him or his defense.” Further, Cerda does not challenge the 

sufficiency of the evidence to support his 19 counts of conviction. Cerda 

argues, “on appellate review, the parties 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 the 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 Spanish — is that the trial was conducted 

in McAllen in southern Texas, near the Rio Grande, where a substantial 

number of Spanish speakers live and would be jurors and witnesses. Our 

review of the trial record reveals that the 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 district court 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 review, 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 arise from the fact that some jurors might 

not understand Spanish. A prospective juror must be able to understand 

English, but there is no requirement jurors know any other language. See 28 

U.S.C. § 1865(b)(3). To leave a subset of jurors confused and even 

suspicious about what the presiding judge is saying is undesirable. We 

suggest that if a district judge believes it necessary to use Spanish quite briefly 

and occasionally for nonsubstantive matters, 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 one 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 conspiracy to possess with intent to 

distribute a mixture or substance containing a detectable amount of cocaine 

and marijuana. The Government agrees with the defendants that there was 

insufficient evidence to support the conviction. We therefore reverse both 

defendants’ convictions under Count Seventeen. 

* * * 

We VACATE and REMAND the judgment of conviction on Counts 

Six and Eight for resentencing, REVERSE the judgment of conviction on 

Count Seventeen and REMAND for entry of a judgment of acquittal, and 

AFFIRM in all other respects.