IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-41177

c/w No. 13-40559

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

v.

CRISTIAN ALEJANDRO RODRIGUEZ–LOPEZ, a/k/a Alex, a/k/a Puma, 

a/k/a Compadre,

Defendant–Appellant.

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UNITED STATES OF AMERICA,

Plaintiff–Appellee,

v.

LUIS NARCISCO BARRON,

Defendant–Appellant.

Appeals from the United States District Court

for the Eastern District of Texas

United States Court of Appeals

Fifth Circuit

FILED

June 25, 2014

Lyle W. Cayce

Clerk

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Before DAVIS, ELROD, and COSTA*, Circuit Judges.

JENNIFER WALKER ELROD, Circuit Judge:

A jury in the Eastern District of Texas convicted Cristian Alejandro 

Rodriguez–Lopez and Luis Narcisco Barron (collectively, “defendants”) of 

conspiring to distribute marijuana. The district court sentenced each 

defendant to a term of imprisonment. Rodriguez–Lopez argues on appeal that

venue was improper in the Eastern District and that the evidence was 

insufficient to sustain the conviction. Rodriguez–Lopez also argues that the 

district court improperly calculated his offense level for sentencing purposes. 

Barron, in a separate appeal, argues that the evidence was insufficient and 

that the prosecutor made improper statements in closing arguments. Barron 

also challenges the calculation of his offense level. We consolidated the 

defendants’ separate appeals. We affirm Rodriguez–Lopez’s conviction and 

sentence. We also affirm Barron’s conviction. We vacate Barron’s sentence, 

however, and remand for resentencing.

I.

This case arose out of two federal law enforcement investigations: one 

focused on illegal drug trafficking and the other on illegal firearms trafficking.1 

The drug trafficking organization, headed by Nazario Cavazos, moved 

marijuana across the border between Mexico and the United States, near 

Laredo, Texas. Jose Arce, who was part of the organization and testified at 

* Judge Costa participated by designation in this case as a United States District 

Judge for the Southern District of Texas. Since that time, he has been appointed as a Fifth 

Circuit Judge.

1 We present the facts in the light most favorable to the conviction as we must. See 

United States v. Thomas, 690 F.3d 358, 366 (5th Cir. 2012). 

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trial, managed border crossings. Arce testified that from 2002 to 2006 he 

moved more than 100 tons of marijuana for the Cavazos organization, from 

Laredo to Dallas, Atlanta, New York, and other cities. Federico Garcia

testified that from 2004 to 2006 he transported marijuana for the Cavazos 

organization by land through Texarkana, Texas, and Beaumont, Texas, in 

order to reach other cities in the interior of the United States. 

Brothers Roberto and Erasmo Marquez ran a cell of the Cavazos 

organization in north Texas. Roberto Marquez communicated directly with 

Cavazos. The Marquez cell used three interrelated stash houses, on three 

nearby streets known as Charlestown, Jamestown, and Brookstown. In 2007 

and 2008, Rodriguez–Lopez, also known as “Puma,” lived in, and was named 

on the lease for, the Brookstown house. According to two other individuals 

involved in the operation, Jesus Marquez (brother to Roberto and Erasmo) and 

Cesar Morales, Rodriguez–Lopez lived rent-free in exchange for his drugdistribution services. Jesus Marquez described the fundamentals of each 

house thus:

[The marijuana] comes in during the night, truck comes in, they 

open the garage and they unload, truck takes off, they weigh the 

marijuana, turn it into 50 pounds, taking off the wrapping around 

it, weigh it, turn it into 50, wrap it back up, and then they start 

choosing who is gonna get what to sell.

Jesus Marquez also testified that Rodriguez–Lopez, who was married to the 

Marquez brothers’ niece, was Roberto Marquez’s “right hand” man. 

Accordingly, Rodriguez–Lopez would get his choice of marijuana to sell. As a 

man of high status, Rodriguez–Lopez also had the ability within the cell to “tell 

other people what to do.” Rodriguez–Lopez kept a rusty Berretta handgun for 

protection, given the danger associated with such large quantities of 

marijuana. After Rodriguez–Lopez and the others had distributed the 

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marijuana, a man known as “Commandante” would collect the profits, on 

Cavazos’s behalf, from each of the stash houses. 

Twice federal agents seized Cavazos organization trucks that were 

carrying marijuana, once in 2005 in Tyler, Texas, and once in 2006 in Dallas. 

On June 11, 2008, federal agents executed search warrants at each of the 

Dallas stash houses. Rodriguez–Lopez was at home at the Brookstown house, 

where the agents recovered: drug ledgers (including one ledger entitled “Notas 

de Puma”), a receipt for plastic wrapping, packaging materials, a small amount 

of marijuana, digital scales, over $47,000 in cash, a money counter, two 

firearms (including a rusty Berretta), and body armor. At the Jamestown 

house, the agents seized: drug ledgers, 1,000 pounds of marijuana, packaging 

materials, other narcotics paraphernalia, two firearms, and over $247,000 in 

cash. And at the Charlestown house, the agents found: drug ledgers, 35 

pounds of marijuana, digital scales, one firearm, Roberto Marquez’s passport, 

and over $1,000,000 in cash.

The drug ledgers at each house contained information about the 

Marquez cell’s inventory. Rodriguez–Lopez’s personal accounts in the ledgers 

for the three houses reflected more than 5,000 pounds of inventory; the 

separate “Notas de Puma” ledger reflected another 2,000 pounds. An FBI 

forensics specialist examined the ledgers and testified that between September 

28, 2007, and May 7, 2008, the marijuana inventory for the Brookstown,

Jamestown, and Charlestown houses amounted to approximately 138,000 

pounds. The specialist also testified that the Brookstown house distributed to 

forty-seven different accounts from January 2004 to November 2007.

The United States linked Barron to the Cavazos organization through 

firearms transactions. As part of an investigation into the Mexican drug 

cartels’ supply of firearms, federal agents learned that Barron’s cousin, 

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Roberto Flores, was acting as a straw buyer for Barron. The agents convinced 

Flores to cooperate, and from 2006 until 2008 Flores helped gather evidence of 

Barron’s firearms trafficking business by continuing to engage in firearms 

transactions on behalf of Barron—often while wearing a wire. The testimony 

at trial further revealed that, prior to Flores’s cooperation, Oscar Gomez, one 

of Cavazos’s closest lieutenants, approached Barron at Cavazos’s request in 

2005. Cavazos had given Barron’s phone number to Gomez. Cavazos needed 

the firearms to protect his business—various Mexican drug cartels were at 

war. After Barron and Gomez agreed on a purchase price for military-style 

weapons, Cavazos signed off on the deal. Barron took the firearms to the 

border, and Cavazos’s men then smuggled the firearms into Mexico. Barron 

and Gomez’s relationship continued: On at least three subsequent occasions,

following meetings near Dallas, Gomez purchased firearms from Barron,

paying Barron approximately $10,000 (in drug proceeds) each time. Gomez 

also went to Barron for firearms troubleshooting. Cavazos himself apparently 

experienced some “jamming” issues with the firearms at one point, prompting

Gomez to seek help from Barron, who obliged. Barron knew that Gomez was 

in the drug business. The two spoke openly to each other about their careers. 

Barron even inquired into buying some marijuana from Gomez to sell on his 

own, but that transaction never came to fruition.

Based on the foregoing, a grand jury returned a five-count indictment, 

naming twenty-three defendants. Pertinent here, Rodriguez–Lopez and

Barron2 were named in Count One (conspiracy to distribute 1,000 kilograms 

2 Barron also was named in Count Three (possession of an unregistered machine gun, 

in violation of 26 U.S.C. §§ 5841 and 5861(d) and 5871), Count Four (possession of an illegal 

machine gun, in violation of 18 U.S.C. § 922(o) and 924(a)(2)), and Count Five (dealing in 

firearms without a license, in violation of 18 U.S.C. § 922(a)(1)(A) and 923(a) and 924 

(a)(1)(D)). After voir dire but prior to opening statements, Barron pleaded guilty to the 

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or more of marijuana, in violation of 21 U.S.C. §§ 841(a), (b)(1)(A)(vii) and

846).3 

Only three defendants, including Rodriguez–Lopez and Barron, went to 

trial, where the above-described facts unfolded.4 When the United States 

rested, one defendant made a joint motion for acquittal, which was adopted by 

the other two:

We’ll ask for a judgment of acquittal, a Rule 29 motion. The 

government, having the burden of proof, it’s our opinion at this 

point hasn’t put on any evidence beyond a reasonable doubt that 

should go to a jury that my client is involved in a conspiracy, that 

he has distributed drugs as charged in the indictment, Your Honor.

The district court denied the motions as to the marijuana conspiracy.

In closing arguments, in an effort to demonstrate that he “g[o]t it” and 

that he was “all for backing the blue,” defense counsel for Barron commented 

that his “dad was an FBI agent” and that he had been “a state and federal 

prosecutor” and “an elected trial judge for four years.” The Assistant U.S. 

Attorney then argued on rebuttal, attempting to show motive and apparently 

partially responding to defense counsel’s rhetoric: “Why does someone sell 

drugs? Why does someone sell firearms on an illegal market? Why does 

someone leave the U.S. Attorney’s Office and lend their credibility to 

representing drug traffickers and firearms dealers?” Pursuant to an objection, 

firearms counts. Those convictions and the accompanying sentences are not at issue on 

appeal.

3 In addition, the indictment alleged, in the disjunctive, that the defendants also 

conspired to distribute cocaine, methamphetamine, and “ecstacy.” The district court granted 

the defendants’ motions for acquittal as to cocaine, methamphetamine, and ecstacy.

4 A third defendant, Daniel Galvan–Rodriguez, was tried and convicted along with 

Rodriguez–Lopez and Barron. Galvan–Rodriguez was subsequently sentenced to 168 months 

in prison on Count One and did not to appeal.

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the district court immediately instructed the jury to disregard that statement, 

explaining that the statement was “totally improper.” The district court 

informed the jury that Barron’s defense counsel “ha[d] every right to represent 

a criminal defendant” and that “everyone has a right to a defense.”5 

The defendants were convicted of conspiring to distribute marijuana. 

The jury also answered a special interrogatory, finding that as to each 

defendant the “quantity of marijuana” involved in the conspiracy was more 

than 1,000 kilograms. The district court instructed the jury that a “quantity 

of marijuana may only be attributed to the defendant if that quantity was 

within the scope of the conspiracy after the defendant’s entry into the 

conspiracy and if the defendant knew or should have known that that quantity 

of marijuana was involved in the conspiracy.”

Approximately twelve days after the jury returned its verdict, Barron 

filed a motion for a new trial based on the prosecutor’s comments on rebuttal. 

The district court denied the motion in a written order, concluding that 

Barron’s substantial rights were not affected.

At Rodriguez–Lopez’s sentencing hearing, the district court calculated 

Rodriguez–Lopez’s base offense level to be 38. To arrive at that number, the 

district court found—over Rodriguez–Lopez’s objection—that Rodriguez–

Lopez was responsible for more than 30,000 kilograms (i.e., approximately 

more than 66,000 pounds) of marijuana. See U.S.S.G. §§ 1B1.3(a)(1)(B) and 

2D1.1(c)(1). Then, after applying several adjustments not at issue on appeal, 

the district court announced that Rodriguez–Lopez’s total offense level was 41 

and that his criminal history category was II. Concluding that Rodriguez–

5 The jury instructions also included this standard instruction: “Remember that any 

statements, objections, or arguments made by the lawyers are not evidence. . . . [I]t is your 

own recollection and interpretation of the evidence that controls in this case.”

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Lopez’s Guidelines range was 324 months to 405 months in prison, the district 

court sentenced Rodriguez–Lopez at the low end, to 324 months in prison.6

The district court later sentenced Barron. At the sentencing hearing, the 

district court concluded that Barron’s base offense level was 32, finding that 

Barron was responsible for more than 1,000 kilograms but less than 3,000 

kilograms (i.e., approximately between 2,000 and 7,000 pounds) of marijuana. 

See §§ 1B1.3(a)(1)(B) and 2D1.1(c)(4). The district court relied on the jury’s 

answer to the special interrogatory for that finding. Relevant here, the district 

court also applied a three-level increase for Barron’s managerial or supervisory 

role in the drug conspiracy. See U.S.S.G. § 3B1.1(b). Barron objected to both 

the base offense level and the enhancement. The district court overruled 

Barron’s objections and arrived at a total offense level of 37 and a criminal 

history category of I. Observing that Barron’s Guidelines range on Count One 

was 210 months to 262 months in prison, the district court sentenced Barron

at the low end, to 216 months in prison.

II.

The defendants raise a number of issues on appeal, some of which 

overlap and some of which are entirely separate. We will address each 

defendant’s case in turn, beginning with Rodriguez–Lopez.

A.

1.

Rodriguez–Lopez argues that venue was improper in the Eastern 

District of Texas. The United States Constitution enshrines a defendant’s

right to be tried in the district “wherein the crime shall have been committed.”

6 The district court miscalculated the Guidelines range, which resulted in a windfall 

for Rodriguez–Lopez. A total offense level of 41 and a criminal history category of II provides 

for a Guidelines range of 360 months to life in prison.

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U.S. Const. amend VI; see also U.S. Const. art. III, § 2, cl. 3; Fed. R. Crim. P. 

18. Venue is proper in conspiracy cases in any district where the agreement 

was formed or an overt act occurred. United States v. Winship, 724 F.2d 1116, 

1125 (5th Cir. 1984). A defendant must assert a challenge to venue prior to

trial if the indictment or circumstances known to the defendant make such a 

challenge apparent. United States v. Carreon–Palacio, 267 F.3d 381, 392 (5th 

Cir. 2001). If a venue challenge is not apparent before trial, a defendant must 

bring a claim of improper venue to the district court’s attention at the close of 

the United States’ evidence. Id. at 393. A defendant waives his right to contest 

venue on appeal, however, when his motion for acquittal fails to put the court 

and the United States on notice of the challenge to venue. United States v. 

Carbajal, 290 F.3d 277, 288–89 n.19 (5th Cir. 2002) (citing Carreon–Palacio, 

267 F.3d at 391–92). 

Here, in his motion for acquittal, Rodriguez–Lopez argued that the 

United States had not put on evidence to prove his guilt beyond a reasonable 

doubt; he did not mention venue. This motion was therefore too vague to put 

the district court and the United States on notice of a venue challenge. See

Carbajal, 290 F.3d at 288–89 n.19 (holding that merely arguing that the 

United States did not sufficiently prove the defendant’s guilt was inadequate 

to put the district court or the United States on notice that the defendant was 

challenging venue). We consider the challenge waived.

Even assuming arguendo that Rodriguez–Lopez did not waive his 

challenge, we conclude that venue was proper in the Eastern District of Texas. 

The United States must prove venue by a preponderance of the evidence. 

United States v. Thomas, 690 F.3d 358, 368 (5th Cir. 2012). Rodriguez–Lopez 

appears to be under the mistaken assumption that, because his actions took 

place in Dallas (in the Northern District of Texas), the Northern District of 

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Texas is the only place in which venue would be proper. On the contrary, 

“[v]enue is proper in conspiracy offenses in any district where the agreement 

was formed or an overt act occurred.” Winship, 724 F.2d at 1125. Venue may 

be proper in districts in which conspirators “have never set foot.” Id. (citing

Hyde v. United States, 224 U.S. 357 (1912), and United States v. DeLeon, 641 

F.2d 330, 336 (5th Cir. 1981)). A conspirator is liable for “all acts committed 

by [co-conspirators] in furtherance of the conspiracy, including those acts 

committed without his knowledge before he joined the conspiracy.” United 

States v. Marrionneaux, 514 F.2d 1244, 1250 (5th Cir. 1975), abrogated on 

other grounds by United States v. Lane, 474 U.S. 438, (1986). The United 

States’ evidence reflected that co-conspirator Garcia hauled drugs through 

Beaumont and Texarkana and that federal agents seized one of the Cavazos 

organization’s cargo trucks in Tyler. All three cities are in the Eastern District 

of Texas. See United States v. Garcia Mendoza, 587 F.3d 682, 687 (5th Cir. 

2009) (“[O]ne co-conspirator’s travel through a judicial district in furtherance 

of the crime alleged establishes venue as to all co-conspirators.”). Therefore, a

rational jury could conclude by a preponderance of the evidence that venue was 

proper in the Eastern District of Texas.

2.

Turning to the sufficiency of the evidence, we review the district court’s 

denial of Rodriguez–Lopez’s motion for acquittal de novo. United States v. 

Cervantes, 706 F.3d 603, 617 (5th Cir. 2013). We must affirm a conviction if, 

after viewing the evidence and all reasonable inferences in the light most 

favorable to the prosecution, any rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt. Jackson v. 

Virginia, 443 U.S. 307, 319 (1979).

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To establish Rodriguez–Lopez’s guilt, the United States was required to 

prove that: (1) two or more persons agreed to distribute marijuana; 

(2) Rodriguez–Lopez knew of the existence of the agreement; and 

(3) Rodriguez–Lopez voluntarily participated in the conspiracy. See Cervantes, 

706 F.3d at 617. Because the United States sought an enhanced penalty based 

on the amount of drugs (i.e., under § 841(b)(1)(A)(vii), which requires that the 

conspiracy involve at least 1,000 kilograms of marijuana), the United States

was required to prove beyond a reasonable doubt the amount of marijuana 

alleged to be involved in the conspiracy. See Apprendi v. New Jersey, 530 U.S. 

466 (2000).

It is true, as Rodriguez–Lopez points out, that the United States “may 

not prove up a conspiracy merely by presenting evidence placing the defendant

in a climate of activity that reeks of something foul.” United States v. Mendoza, 

226 F.3d 340, 343 (5th Cir. 2000) (internal quotation marks omitted). But the 

evidence at trial reflected that Rodriguez–Lopez was involved actively in the 

“something foul” here; he was not an innocent bystander. To begin with, 

Rodriguez–Lopez lived in one of the primary stash houses. A rational jury 

could have believed Jesus Marquez and Cesar Morales and concluded that 

Rodriguez–Lopez lived in the house rent-free not out of the kindness of the 

Marquez brothers’ hearts but because he played a valuable role in the drug 

conspiracy. This role was memorialized in the drug ledgers, which reflected 

that Rodriguez–Lopez, or “Puma,” was personally responsible for moving at 

least 7,000 pounds of marijuana. Indeed, according to Jesus Marquez, 

Rodriguez–Lopez, as Roberto Marquez’s “right hand” man, had his choice of 

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marijuana to sell.7 The district court was correct to deny the motion for 

acquittal, and we therefore affirm the jury’s verdict as to Rodriguez–Lopez, 

including its answer to the special interrogatory.

3.

Rodriguez–Lopez also challenges his sentence on the ground that the 

district court’s finding that he was responsible for more than 30,000 kilograms 

of marijuana—more than the jury found in answering the special 

interrogatory—violated United States v. Booker, 543 U.S. 220 (2005). We 

review for plain error because Rodriguez–Lopez did not object on this ground. 

United States v. Arnold, 416 F.3d 349, 362 (5th Cir. 2005). 

No error, plain or otherwise, under Booker and its progeny occurred here. 

The district court’s finding that Rodriguez–Lopez was responsible for more 

than 30,000 kilograms did not increase the statutory maximum or minimum 

as set by the jury’s answer to the special interrogatory. Rodriguez–Lopez was 

convicted under §§ 841(a)(1), (b)(1)(A)(vii) and 846. Therefore, the minimum 

sentence provided by statute was ten years; the maximum, life in prison. The 

district court lawfully calculated a Guidelines sentence based on its own 

factual findings, which were not erroneous given Rodriguez–Lopez’s role in the 

7 Rodriguez–Lopez protests that much of the information implicating him in the 

conspiracy was relayed by co-conspirators. “A defendant may be convicted on the 

uncorroborated testimony of a coconspirator who has accepted a plea bargain unless the 

coconspirator’s testimony is incredible.” United States v. Valdez, 453 F.3d 252, 257 (5th Cir. 

2006) (alteration and internal quotation marks omitted). “Testimony is incredible as a 

matter of law only if it relates to facts that the witness could not possibly have observed or to 

events which could not have occurred under the laws of nature.” Id. (internal quotation 

marks omitted). Beyond bald assertions regarding the co-conspirators’ drug habits and 

motives to shift blame, Rodriguez–Lopez fails to explain how or why the co-conspirators’ 

testimony was “incredible as a matter of law.” See id. The jury was well-instructed on the 

importance of assessing with caution the testimony of an accomplice or a drug user. A 

rational jury was entitled to rely on that testimony.

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Marquez cell of the Cavazos organization. See United States v. Akins, 746 F.3d 

590, 613 (5th Cir. 2014) (“The judge’s finding that [the defendant] was 

responsible for more than 300 grams of crack cocaine did not increase the 

maximum or the minimum penalty to which [the defendant] could be subjected 

based on the jury’s findings . . . . The judge simply calculated an intermediate 

advisory Guidelines range based on his own findings, as permitted by Booker

and its progeny.”). Accordingly, we affirm the judgment as to Rodriguez–

Lopez. 

B.

1.

We now turn to Barron’s sufficiency challenge, which we review de novo, 

under Jackson, 443 U.S. 307. The United States argued at trial that Barron 

aided and abetted the Cavazos organization conspiracy, and the jury was 

instructed on that theory. To prove that Barron aided and abetted the 

conspiracy, the United States was required to prove that: (1) the offense of 

conspiracy occurred and (2) Barron associated himself with the venture, 

participated in it as something he wished to bring about, and sought by his 

action to make it succeed. United States v. McDowell, 498 F.3d 308, 313 (5th 

Cir. 2007); see also United States v. Segura, 122 F. App’x 768, 777 (5th Cir. 

2005) (upholding conviction for aiding and abetting a drug conspiracy).

Barron’s guilt, as demonstrated at trial, was of a different sort than 

Rodriguez–Lopez’s. The United States does not contend that Barron was 

moving, packaging, or selling marijuana for the Cavazos organization, and 

Barron frankly concedes that the United States “unquestionably proved the 

existence of a conspiracy to distribute marijuana.” Barron argues instead that 

the evidence of his knowledge of and participation in the conspiracy was 

insufficient. Barron relies heavily on the fact that the surveillance recordings 

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(obtained via Flores) were devoid of any explicit mention of the Brookstown, 

Jamestown, or Charlestown houses or the Cavazos organization. Barron also 

observes that, according to Gomez’s testimony, Gomez never told Barron that 

he was purchasing the firearms on behalf of the Cavazos organization. 

We begin with Barron’s knowledge of the conspiracy.8 Although Gomez 

did not testify that he invoked the Cavazos name in his dealings with Barron, 

a rational jury could infer that Barron was aware of Gomez’s connection to the 

Cavazos organization. The evidence also demonstrated that Barron delivered 

the firearms to members of the Cavazos organization at the border, in 

accordance with his agreement with Gomez. Moreover, Barron knew that his 

firearms trafficking business was illegal, a fact that would allow a rational jury 

to conclude that Barron also knew that he was dealing with a similarly illicit 

organization. 

Barron’s association with and participation in the conspiracy is 

exemplified by the firearms transactions themselves. There are many different 

roles that participants in a drug conspiracy may play—for example, 

“supervisor and manager,” “distributor,” “payment collector,” “gunman and 

enforcer,” and “firearms procurer and storer.” See United States v. Tolliver, 61 

F.3d 1189, 1196–97 (5th Cir. 1995), vacated on other grounds, Moore v. United 

States, 519 U.S. 802 (1996). In the drug business, firearms are necessary 

assets, and the jury could have found that Barron knowingly provided those 

necessary assets to Cavazos organization members and delivered them at the 

border so that the organization could protect its valuable marijuana. 

8 The jury was instructed on actual knowledge only, so this appeal does not require us 

to consider whether the evidence supported a deliberate indifference instruction.

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The illegal nature of the firearms trafficking in which Barron was 

engaged also supports the jury’s conclusion. Barron was not an unknowing 

seller who made a one-off sale. As we explained in United States v. Michelena–

Orovio, a defendant who has supplied “‘innocent’” goods to people who intend

to use those goods unlawfully—without more—has not committed a crime. 719 

F.2d 738, 748–49 (5th Cir. 1983) (quoting United States v. Falcone, 311 U.S. 

205 (1940) (evidence insufficient to support convictions of aiding and abetting 

a conspiracy to distill spirits where defendants knowingly supplied a large 

volume of sugar and yeast to illegal distillers)). But the unlawfulness of the 

goods themselves is “important in terms of both the seller’s knowledge of the 

buyer’s intended use, and the seller’s intent to promote and cooperate in the 

illegal action.” Michelena–Orovio, 719 F.2d at 749. In light of the foregoing, 

and with more than sufficient evidence to establish that the overall scope of 

the conspiracy involved more than 1,000 kilograms of marijuana, we will not 

second guess the jury’s determination that Barron was guilty of conspiring to 

distribute marijuana, including the finding on the special interrogatory.

2.

Barron argues that his conviction should be vacated because his right to 

a fair trial was compromised by the prosecutor’s improper remarks during 

closing arguments. We review the district court’s denial of Barron’s motion for 

a new trial for abuse of discretion. United States v. Wyly, 193 F.3d 289, 298 

(5th Cir. 1999). We apply a two-step analysis to claims of prosecutorial 

misconduct: First, we assess whether the prosecutor made an improper 

remark. If so, we determine whether the defendant was prejudiced—a “high 

bar.” United States v. Davis, 609 F.3d 663, 677 (5th Cir. 2010) (internal 

quotation marks omitted). The prejudice prong turns on whether the 

prosecutor’s remarks “cast serious doubt on the correctness of the jury’s 

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verdict.” Id. (internal quotation marks omitted). We look to three factors in 

deciding whether the improper remarks “cast serious doubt”: “(1) the 

magnitude of the prejudicial effect of the prosecutor’s remarks, (2) the efficacy 

of any cautionary instruction by the judge, and (3) the strength of the evidence 

supporting the conviction.” Id. (internal quotation marks omitted). 

We agree with Barron that the prosecutor’s comments were improper. 

We have repeatedly chastised federal prosecutors for making improper

remarks in closing arguments—for example, for “bolstering” federal agents’ 

credibility in closing arguments, see United States v. Aguilar, 645 F.3d 319, 

324 (5th Cir. 2011) (“The prosecutor in this case, in a rapid series of comments, 

referred to the agents’ positions as government agents, then said it would be 

alarming if they were lying, they were just doing their jobs, and they strive to 

be ethical.”); for attacking the character of the defendant, see United States v. 

Jefferson, 432 F. App’x 382, 390 (5th Cir. 2011) (“The prosecutor also engaged 

in an improper argument when he said that [the defendant] had reached ‘the 

all time new low for criminal defense 101’ by blaming his dead mother for the 

crime. A prosecutor should not use closing argument to demean the character 

of the defendant for reasons other than the crime for which he is on trial.”); 

and for attacking the character of defense counsel, see United States v. Murrah, 

888 F.2d 24, 27 (5th Cir. 1989) (“No counsel is to throw verbal rocks at opposing 

counsel.”); United States v. Jones, 839 F.2d 1041, 1049 (5th Cir. 1988) (“During 

his closing argument, [the prosecutor commented:] ‘Out of an absolute act of 

desperation, as a final grasp of hope in trying to get you to buy their various 

distorted defenses, [the defense attorneys] sponsor perjury. They bring you a 

lie.’ . . . [U]nder our cases the comment was reprehensible.”). We view the 

remarks here with as much or perhaps even greater opprobrium. Disparaging 

defense counsel’s motives for representing a criminal defendant is a foul blow. 

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See Berger v. United States, 295 U.S. 78, 88 (1935) (“[The United States 

Attorney] may prosecute with earnestness and vigor—indeed, he should do so. 

But, while he may strike hard blows, he is not at liberty to strike foul ones.”). 

There is no place in federal court for such conduct.

Having concluded that the remarks were improper, we must determine 

whether Barron was prejudiced by them. Mindful that a prosecutor’s improper 

remark “carries with it the imprimatur of the Government and may induce the 

jury to trust the Government’s judgment rather than its own view of the 

evidence,” United States v. Young, 470 U.S. 1, 18–19 (1985), we nevertheless 

conclude that vacating Barron’s conviction is not warranted. We emphasize 

that here the district court was quick to admonish the misconduct, not only 

immediately sustaining defense counsel’s objection but also verbally 

instructing the jury as to why the remarks were improper.9 The district court’s 

prompt actions and curative instructions, we conclude, were therefore 

effective. In addition, we have already explained the strength of the evidence 

against Barron, a factor weighing against Barron’s entitlement to a new trial. 

Accordingly, although we strongly condemn the prosecutor’s remarks, we 

conclude that those remarks did not “cast serious doubt” on the verdict. See 

Davis, 609 F.3d at 677. The district court did not abuse its discretion in 

denying Barron’s motion for a new trial.

9 Barron cites United States v. Holmes, 413 F.3d 770 (8th Cir. 2005), in support. There, 

the Eighth Circuit concluded that the prosecutor had made a series of improper remarks 

about defense counsel. Id. at 775. The Eighth Circuit held that a new trial was warranted. 

Id. at 777. That decision, however, rested in large part on the fact that the district court had 

overruled defense counsel’s objection and had not given a curative instruction. Id. at 775–

76. Moreover, the Eighth Circuit explained that the new trial was warranted in light of the 

improper remarks in conjunction with the improper exclusion of testimony favorable to the 

defense. Id. at 776–77. Holmes is unavailing.

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3.

Barron argues that the district court erred in setting his base offense 

level at 32 and in applying a three-level enhancement for his managerial or 

supervisory role in the drug conspiracy. We review the district court’s 

interpretation and application of the Sentencing Guidelines de novo and its 

factual findings for clear error. United States v. Miller, 607 F.3d 144, 147 (5th 

Cir. 2010). Both the determination regarding the relevant quantity of drugs 

for purposes of § 2D1.1(c)(4) and Barron’s status as a manager or supervisor 

for purposes of § 3B1.1(b) are factual findings that we review for clear error. 

See United States v. Alaniz, 726 F.3d 586, 622 (5th Cir. 2013) (manager or 

supervisor); United States v. Garza, 541 F.3d 290, 292 (5th Cir. 2008) (drug 

quantity); see also United States v. Cisneros–Gutierrez, 517 F.3d 751, 764 (5th 

Cir. 2008) (explaining that there is no clear error if the finding is plausible in 

light of the record as a whole).

Under § 1B1.3(a)(1)(A), a district court must determine the base offense 

level for a conspiracy by reference to “all reasonably foreseeable acts and 

omissions of others in furtherance of the jointly undertaken criminal activity[] 

that occurred during the commission of the offense.” Here, following a lengthy 

dialogue with defense counsel, the district court reasoned that Barron’s 

involvement in the conspiracy rendered it “reasonably foreseeable” to Barron 

that the Cavazos organization was moving more than 1,000 kilograms of 

marijuana. Especially in light of the jury’s answer to the special interrogatory, 

which was in essence a finding of “reasonable foreseeability” beyond a 

reasonable doubt, we conclude that the district court did not clearly err.

The three-level enhancement at issue here applies “[i]f the defendant 

was a manager or supervisor (but not an organizer or leader) and the criminal 

activity involved five or more participants or was otherwise extensive.” 

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§ 3B1.1(b).10 The role enhancement consists of two elements: (1) the defendant 

exercised managerial control over one or more of the other participants in the 

offense and (2) the offense involved five or more participants. See § 3B1.1 cmt. 

n.2. There is no dispute as to the satisfaction of the second element. As to the 

first element, we have referred to the following factors in determining whether 

the enhancement should apply: “the defendant’s participation in planning, 

recruitment of accomplices, and exercise of control and authority over others.” 

United States v. Reagan, 725 F.3d 471, 494 (5th Cir. 2013) (citing § 3B1.1 cmt. 

n.4).

The district court provided the following reasoning in support of its 

decision to apply the enhancement:

He was found guilty of the drug conspiracy. He’s supplying guns 

to those who conspired with him to distribute marijuana. And if 

he supplied them—let’s see, he recruited Roberto Flores to 

purchase firearms, then Flores turns around and recruits other 

people, and there are recorded conversations where Mr. Barron is 

talking about the people Flores recruited and how to pay the straw 

buyers, and that the straw buyers shouldn’t buy too many guns at 

once because somebody would become suspicious.

. . . .

The point is, he is paying Flores to recruit people to buy guns, and 

that assists the drug-trafficking organization.

Along similar lines, the United States argues on appeal that Barron’s role in 

the Cavazos organization was significant because he “recruited Flores and 

others to get firearms and directed their activity.” As defense counsel pointed 

out at the sentencing hearing, however, there was no evidence that Barron was 

10 The Presentence Report grouped the drug conspiracy separately from the firearms 

offenses to which Barron pleaded guilty. That determination, which no party challenges, 

means that the role enhancement relates to Barron’s role in the drug conspiracy, not the 

firearms trafficking. See United States v. Kleinebreil, 966 F.2d 945, 955 (5th Cir. 1992).

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using Flores or any other Cavazos organization member as a straw buyer 

during the time that Barron was dealing with Gomez. There is thus no 

evidence that Barron recruited others to join the Cavazos organization 

conspiracy, and there is no evidence that Barron exercised control over others 

involved with the conspiracy. The United States does not argue to the 

contrary. Moreover, there is no evidence that Barron was involved in planning 

the operations of the Cavazos organization conspiracy. Therefore, although 

the leadership enhancement might have been appropriate for the firearms 

counts, which are not at issue on appeal, there is no evidence that Barron

exercised any managerial or supervisory control over any of the participants in 

the Cavazos organization conspiracy. See United States v. Lewis, 476 F.3d 369, 

390 (5th Cir. 2007) (district court clearly erred where there was no evidence 

that the defendant “was managing others” in a methamphetamine conspiracy); 

see also United States v. Cisneros, 414 F. App’x 696, 703 (5th Cir. 2011) (district 

court clearly erred where there was “no evidence in the record that [the 

defendant] took on a supervisory role, e.g. finding the driver, obtaining use of 

the [drug production location], spearheading the drug deal, or having some sort 

of authority over the other participants”). We conclude that the district court’s 

findings were clearly erroneous and that therefore the enhancement should 

not apply.

III.

We therefore AFFIRM Rodriguez–Lopez’s conviction and sentence on 

Count One. We also AFFIRM Barron’s conviction on Count One. We VACATE 

Barron’s sentence on Count One and REMAND for resentencing.

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