* Pursuant to 5 th Cir. R. 47.5, th e court has determ ined that this opi

nio n should not be published and is no t precedent except under the limited circumstances set forth in 5 th Cir. R. 47.5.4. 1 United States Court of Appeals Fifth Circuit 

## FILED May 9, 2006 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________ No. 05-10461

__________________________ UNITED STATES OF AMERICA, Plaint iff- Appellee,
versus MARIO CRESPO-HERNANDEZ; RAMON A. SANTOS; MANUEL MENDEZ also known as JUAN MANUEL COLON, Defendants-Appellants.

___________________________________________________ Appeals from the United States District Court fo r the Northern District of Texas 4:04-CR-00114-3

___________________________________________________ Before REAVLEY, CLEMENT, and PRADO, Circuit Judges. EDITH BROWN CLEMENT, Circuit Judge: * Mario Crespo-Hernandez, Ramon Santos, and Manuel Mendez were fo und guilt y of conspiracy to distribute and to possess wit h int ent to distribute mo re than five kilo grams of cocaine in vio lat io n of 21 U.S.C. §§ 846 and 841(b)(1)(A). For the reasons that follow, we affirm the judgment of the district court.2 I. FACTS AND PROCEEDINGS Crespo-Hernandez, Mendez, and Santos—as well as Norma Pimentel, Victor Ortiz, and Stephanie Horta—were all charged i n a one-count indictment with conspiracy to distribute and to possess wit h int ent to distribute mo re than five kilo grams of cocaine in vio lat io n of 21 U.S.C. §§ 846 and 841(b)(1)(A). The government initiated prosecution of this case following an undercover operation by Drug Enforcement Administ ration (DEA) agents and a confidential info rmant (CI). The CI provided info rmation to th e agents regarding a group of drug traf fickers in the Rhode Island area, lat er identified as Appellants and the others charged, and the CI arranged fo r the sale of cocaine to th e group i

n Fort Worth, Texas. At tri al, th e government presented five wit nesses in support of it s cas e: Patri ck Reilly, a Rhode Island police of

ficer; Ronald Robinson, a DEA agent; Richard Marti nez, a Forth Wo rth police of ficer acti ng undercover in th e operation; Norma Pi ment el, the then-girlfriend of Crespo-Hernandez and one of th e charged co-conspirators; and Kevin Brown, the Tarrant County District At torney who invest igated th e crime scene. The CI, Jose Cruz Garcia, did not testify. Robinson testified as to the set up of th e operation, including th e coordi nation amo ng the of

fices in Rhode Island and Fort Wo rth and th e use of th e CI to contact Rhode Island phone numbers. Marti nez testified that the plan called fo r him to pose as a drug dealer wit h the CI in the Fort Wo rth area. Under the agents’ direction, on December 3, 2003, th e day of th e transactio n, the CI placed phone calls to Rhode Island to coordi nate the transaction. Reilly identified the Rhode Island phone number as that of Santos. As
a result of th ese phone calls, agents knew that two groups of people were com ing to Fort Wo rth to purchase cocaine; one group was to purchase twelve kilograms, and the other, five kilograms. Santos gave the CI a contact phone number for each group.3

Marti nez further testi fied as fo llo ws: on the day of the transaction, Martinez and the CI went to a Shell station to meet Pi ment el and Crespo-Hernandez. From the Shell station, with Pimentel and Crespo-Hernandez fo llo wing th em, Marti nez and the CI then traveled to a Jack-In-The-Box in order to meet Ortiz and Mendel. From th e restaurant, the entire group relocated to a warehouse where the transaction was conducted. At the warehouse, Martinez asked to see the money before produci ng th e cocaine. Mendez retrieved money from under the dashboard of the car that he and Ortiz were dri ving and indicated that he only had enough money for four kilograms of cocaine inst ead of five. Crespo-Hernandez retri eved mo ney from the back of the jeep that Pi ment el was dri

ving by removing th e back seat and accessing a concealed com partment. The money was placed on a table. Pimentel told Marti nez that th ey only had enough mo ney fo r eleven kilo grams of cocaine. Marti nez then called
an undercover of

ficer to deliver th e bag of cocaine, retri eved it, and placed it on the table. As Appellants began to remove the cocaine from the bag, Martinez gave the arrest signal, and officers came in and arrested all participants. Pi ment el, who agreed to testi fy as part of her plea agreement, largely corroborated the story presented by Robinson and Marti nez. She confirmed that she was supposed to buy eleven kilograms of cocaine fo r Santos and that he would pay her and Crespo-Hernandez $5000 each fo r their services. She also stated that Santos arranged to have the hidden com partment inst alled in the back seat of her car and that Crespo-Hernandez stored and retri eved the money from the compartment because she did not know how to access it. She testified that she had served as a drug runner for Santos in the past and that Crespo-Hernandez had accompanied her on one of the tri ps. Finally, she t esti fied t hat she did not know Mendez before the day of the transaction. Appellants presented no wit nesses at tri al. The jury found Appellants guilty. The district4

court sentenced Santos to a 260-month term of imprisonment and a five-year term of supervised release. Crespo-Hernandez was sentenced to a 170-month term of imprisonment and a five-year term of supervised release. Mendez was sentenced to a 240-month term of imprisonment and a ten-year term of supervised release. Appellants raise several issues on appeal: (1) sufficiency of the evidence, (2) Confrontation Clause vio lat io ns, (3) sentencing errors, and (4) ineffect ive assistance of counsel. II. DISCUSSION A. Sufficiency of the evidence Both Crespo-Hernandez and Mendez mo ved fo r a judgment of acquittal at the clo se of evidence. See F ED . R. C RIM . P. 29. A motion for a judgment of acquittal challenges the sufficiency of th e evidence, and we review th e denial of this mo tion de novo. U nited States v. Medina , 161 F.3d 867, 872 (5th Cir. 1998). In our review, we consider “the evidence, all reasonable inferences drawn from it and all credibilit y determ inat io ns in t he light mo st favorable to the Government, and affirm if a reasonable jury could find the offense’s essential elements beyond a reasonable doubt.” Id
. To establish a conspiracy, the government must prove beyond a reasonable doubt “(1) that
an agreement existed between two or mo re persons to vio lat e the applicable narcotics law ( i .e. , a conspiracy existed), (2) that each alleged conspirator knew of the conspiracy and int ended to jo in it and (3) that each alleged conspirator participated ( i.e., jo ined) voluntarily in the conspiracy.” I d
. It is enough that th e agreement is taci t; an express or explicit agreement is not required. U nited States
v. Westbrook, 119 F.3d 1176, 1189 (5th Cir. 1997). Additionally, “a person may be guilty as a coconspirator even if he plays only a mino r role, and he need not know all the details of the unlawful enterprise or know th e exact number or identity of all t he co-conspirators, so long as he knowingly participates in some fashion in the larger objectives of the conspiracy.” Id . (ci tations om

it ted).5

Ei th er direct or circumstantial evidence may be used to prove the elements of the conspiracy. United States v. Virgen-Moreno , 265 F.3d 276, 284–85 (5th Cir. 2001) (citing U nited States v. Casilla , 20 F.3d 600, 606 (5 th Ci r. 1994)). “Additionally, presence and association with other members of a conspiracy, along with other evidence, may be relied upon to find a conspiracy.” I d
. (i nt ernal quotations and cit ation om it ted). See also United States v. Chavez , 947 F.2d 742, 745 (5th Cir. 1991). The jury is free to choose amo ng reasonable constructions of the evidence; however, if th e evidence gives equal circumstantial support to inno cence as to guilt , then we must reverse the verdict. U

nited States v. Moreno , 185 F.3d 465, 471 (5th Cir. 1999); U nited States v. Dean , 59 F.3d 1479, 1484 (5th Cir. 1995). (1) Crespo-Hernandez C respo-Hernandez argues that the evidence only establishes his presence at the drug transaction, not his knowledge of th e conspiracy or agreement to participate in it
. However, Pi ment el’s testi

mo ny provided ample circumstantial support for the jury to convict him. Pimentel testi fied that Sant os woul d pay her and Crespo-Hernandez $5000 each to retrieve the drugs from Texas. She also stated that Santos gave Crespo-Hernandez, not her, the money to be used to buy the drugs before th ey departed fo r Texas. Pi ment el stated that Crespo-Hernandez put the money in the hidden com

partment under th e backseat of th e Jeep and retrieved the money from the car at the warehouse beca

use she did not know how to access the hidden compartment. Finally, Pimentel testi fied that she and Crespo-Hernandez made a trip to El Paso, Texas, in 2003 to pick up nine kilo grams of cocaine for Santos. It is not disputed that Crespo-Hernandez accompanied Pi ment el to Texas and that he was present at the drug transaction. While presence at a crime scene alone does not establish a6

defendant’s participation in a conspiracy, the jury may consider presence and association, alo ng wit h oth er evidence, in order to find conspiratorial acti vit y. C havez , 947 F.2d at 745. Here, the fact that Crespo-Hernandez bore th e responsibility of stori ng and accessing the drug mo ney and the fact that he was goi

ng to be paid suggest that he knew the purpose of the tri p to Texas and vol

untarily participated in it
. Moreover, the evidence that Pimentel and Crespo-Hernandez had served as drug
runners fo r San

tos i n t he past supports the conclusion that Crespo-Hernandez had the requisite knowledge and intent for the instant offense. Considering this evidence and the inferences to be drawn from it in th e light mo st favorable to the government, a jury could find Crespo-Hernandez guilt y o f conspiracy beyond a reasonable doubt. (2) Mendez Mendez does not dispute that he was invo lved in a conspiracy; inst e ad he argues that the evidence failed to show that he jo ined in t he single conspiracy alleged in the indict ment because the evidence showed th e existence of two conspiracies. He claims one conspiracy consisted of Santos, Crespo-Hernandez and Pi ment el, and the oth er consisted of Ortiz, Mendez, and Horta. In support, Mendez relies on several pieces of evidence: (1) two groups came in two separate cars; (2) Marti nez and th e CI init ially met each group at a different lo cation; (3) Pi ment el testi fied that she had not seen th e oth er group before th ey arri ved in Forth Wo rth and did not know they would be there; (4) Marti nez testi fied that Mendez was “uncomfortable” conducting the transaction wit h another group present; and (5) there was no evidence that the group consisting of Mendez, Ortiz and Horta were sent by Santos. To prevail on a variance claim, the appellant must prove that: “(1) a variance existed between th e indict ment and th e proof at tri al, and (2) the variance affected [the appellant’s] substantial rights.”7

United States v. Pena-Rodriguez , 110 F.3d 1120, 1126 (5th Cir. 1997) (citing United States v. Morris , 46 F.3d 410, 414 (5th Cir. 1995)). To determ ine whether there was a variance between the indict ment and th e proof at tri al, th e number of conspiracies proved at tri al must be counted, and in this regard, the fo llo wing factors are considered: “‘(1) the existence of a com mo n goal , (2) the nature of th e scheme, and (3) the overlapping participants in the various dealings.’” Id . (quoti ng Morris , 46 F.3d at 415). “Whether the evidence shows one or multiple conspiracies is a question of fact for th e jury.” I

d
. “A jury’s finding t hat the government proved a single conspiracy must be affirmed unless th e evidence viewed in th e light mo st favorable to the government would preclude reasonable jurors from finding a single conspiracy beyond a reasonable doubt.” Id
. Viewing th e evidence in th e light mo st favorable to the government, reasonable jurors could have fo und th e existence of a single conspiracy. “A single conspiracy exists where a ‘key man’ is invo lved in and directs illegal acti vit ies, while various com binat io ns of oth er parti cipants exert individual effo rts toward a com mo n goal .” United States v. Richerson , 833 F.2d 1147, 1154 (5th Cir. 1987). In addition, as st ated, participants need not have knowledge of the existence of all other participants. W

estbrook, 119 F.3d at 1189. Even though the evidence showed that two distinct group traveled to Forth Wo rth to conduct the transaction, the evidence also showed that Santos was th e “key man” in charge of directing the various participants. Contrary to Mendez’s assertion that
no evidence linked Santos to his group, Agent Robinson testi fied, while revie wing the log of telephone calls made from Santos’s cell phone and calls received on Ortiz’s cell phone, that a call was placed from Santos to Ortiz on December 3, 2003, the day of the drug transaction. The evidence also showed that both groups came to Fort Wo rth on the same day and that Santos gave the CI contact numbers fo r both groups. Even though each group may have been unaware of the existence of the8

oth er, Santos served as th e key man directing the two groups. Because of Santos’s role connecting th e two groups, the evidence was sufficient to show there was a single conspiracy. Mendez also argues that th e evidence failed to show that he conspired to distribute mo re than five kilo grams because the government only proved his conspiracy to possess four kilograms. The indict ment alleged conspiracy to distribute five or mo re kilo grams of cocaine. To meet i ts burden of proof at tri al, th e government need only prove conspiracy to distribute five or mo re kilo grams based
on th e conspiracy as a whole, not th e quantity attributable to each co-conspirator. U nited States v. Turner , 319 F.3d 716, 722–23 (5th Cir. 2003) (adopting the rule of the First Circuit in Dermon v. United States , 298 F.3d 94 (1st Cir. 2002)). The evidence showed that one group purchased four kilo grams (the group Mendez was associated wit h) and another group purchased eleven. As a result, th e government has met it s burden of proof wit h respect to the conspiracy as a whole, and Mendez’s insufficiency argument fails. B. Confrontation Clause violations Both Mendez and Santos allege that their Confrontation Clause rights were vio lat ed by the admission of statements made by the CI th rough the testi

mo ny of Marti

nez and Robinson. Specifically, Mendez com plains that he was harmed by testi mo ny showi

ng that th e CI made arrangements wit h Appellants to set up the drug transaction. Santos com plains t hat he was harmed because th e out-of

-court statements proved he sent the two groups to Texas and was the organizer of th e operation. We review alleged Confrontation Clause violations de novo. U nited States v. Bell , 367 F.3d 452, 465 (5th Cir. 2004) (citing United States v. McCormick, 54 F.3d 214, 219 (5th Cir. 1995)). For Mendez’s and Santos’s Confrontation Clause rights to be vio lat ed, the statements by the9

CI must have been testimonial in nature. In Craw ford v. Washington , 541 U.S. 36, 68–69 (2004), t he Supreme Court held that out-of -court statements by wit nesses that are testi mo nial are barred, unless th e wit ness is unavailable and the defendant had a prior opportunity to cross-examine the wit ness. The Court did not further define what constitutes a testimonial statement; however, it did articulate a “core class” of testi mo nial statements: “ex parte in-court testi mo ny or it s functional equivalent . . .; extrajudicial statements
. . . ; [and] statements that were made under circumstances which would lead an objective wit ness reasonably to believe that the statement would be available fo r
use at a lat er tri al.” I

d
. at 51–52 (internal quotations and citations omitted). The Court also stated that an “accuser who makes a fo rmal statement to government of ficers bears testi

mo ny in a sense that a person who makes a casual remark to an acquaintance does not.” Id. at 51 This circuit has not yet developed a com prehens ive definition of “testimonial.” We have, however, lo oked to th e Court’s discussion in Craw ford fo r guidance of the ty pes of situations where
a wit ness is deemed to be bearing testi mo ny. S ee United States v. Gonzales , 436 F.3d 560, 546 (5th Cir. 2006) (stati

ng that an excited exclamation, even though made while the declarant was in custody, would probably not quali f y under Craw

ford because the situation was not an int errogation or anyt hing similar); United States v. Lopez-Moreno , 420 F.3d 420, 436 (5th Cir. 2005) (stati ng that a photocopy of an identification card in no way invo lves a witness bearing testimony). Here, though Appellants argue that th e content of th e CI’s statements to Robinson and Marti nez was testi

mo nial, th e exchanges between th e CI and th e co-c onspirators wi th whom he spoke on the phone do not resemble any of th e “core class” of testi mo nial statements articulated by the Court in Craw ford
. S ee 541 U.S. at 51–52. The CI was not being interrogated by police officers, nor was he making a formal statement to the DEA agents in anticipation of tri al. Instead, under the constant direction of DEA10

agents, th e CI was coordi nating a drug transaction, directing his statements to the co-conspirators th emselves. There was no violation of Mendez’s and Santos’s Confrontation Clause rights. C. Sentencing errors (1) Crespo-Hernandez Crespo-Hernandez argues that the district court should have downwardly adjusted his sentence pursuant to U.S.S.G. § 3B1.2 because of his alleged mino r role in the conspiracy. His trial counsel did not request a downward adj ustment before the district court, and where, as here, the defendant does not raise th e issue of his role at sentenci ng, this court reviews for plain error. S ee United States v. Fierro , 38 F.3d 761, 773 (5th Cir. 1994). The determ inat io n of a defendant’s role in an of fense is factual in nature. U nited States v. Zuniga , 18 F.3d 1254, 1261 (5th Ci r. 1994). However, “questions of fact capable of resol ution at sentencing c a n never constitute plain error.” Fierro , 38 F.3d at 773 (ci ti ng U nited States v. Guerroro , 5 F.3d 868, 871 (5th Cir. 1993)). As a result, Crespo-Hernandez’s challenge does not survive plain error review. (2) Santos Santos argues that his Sixt h Amendment rights were vio lat ed because he was held accountable fo r an amount of cocaine beyo nd what was alleged in t he indictment and because his sentence was enhanced based on a prior conviction. Santos did not object to his sentence before the district court, and, therefore, we will review for plain error. United States v. Mares , 402 F.3d 511, 520 (5th Cir. 2005). Santos’s objections are fo reclosed. First, regarding the quantity of cocaine Santos was held accountable fo r, we have held that th e Sixt h Amendment does not prohibit a sentencing judge from finding all the facts relevant to sentencing. S ee Mares , 402 F.3d at 519; United States v. Lopez-11

Urbina , 434 F.3d 750, 759 (5th Cir. 2005); United States v. Alonzo , 435 F.3d 551, 553 (5th Ci r. 2006). Second, prior convictions are permissible sentencing factors and need not be admitted by the defendant or fo und by th e jury beyo nd a reasonable doubt. S ee Almendarez-Torres v. United States , 523 U.S. 224, 228 (1998); see also United States v. Martin , 431 F.3d 846 853 (5th Cir. 2005) (acknowledging that Apprendi did not overrule Almendarez-Torres ). (3) Mendez Mendez objects to th e procedure set fo rth in 21 U.S.C. § 850 fo r enhancement of sentences based on prior convictions, but he concedes that his objection is fo reclosed by Almendarez-Torres , 523 U.S. 224. He raises the issue to preserve it for possible further review.

D. Ineffective assistance of counsel For th e fir st ti

me o n appeal, Crespo-Hernandez alleges that his right to effective assistance
was vio lat ed because counsel failed (1) to thoroughl y object to the presentence invest igation report, (2) to request a downward adjustment due to Crespo-Hernandez’s minor role, and (3) to schedule
an int erview wit h Crespo-Hernandez to meet wi th the government to substantiate his qualification fo r a sentence below the statutory minimum pursuant to U.S.S.G. § 2D1.1(b)(6). “[A] claim of ineffect ive assistance of counsel generally cannot be addressed on direct appeal unless the claim has been presented to th e district court; otherwise there is no opportunity for the development of an adequate record on the merit s of that serious allegation.” United States v. Navejar , 963 F.2d 732, 735 (5th Cir. 1992) (citing United States v. Higdon, 832 F.2d 312 (5th Cir. 1987)). In “rare cases” where th e record is adequately developed to permit this court to fa irl y evaluate the merit s of the claim, we will resolve an allegation of ineffective assistance of counsel on direct appeal. Id . Here,12

th e record does not indicate if a reason existed fo r defense counsel’s decisions. Because the record is not sufficient ly developed wit h respect to Crespo-Hernandez’s claim, we will not address it. We also note that the Supreme Court has stated that claims for ineffective assistance brought under 28 U.S.C. § 2255 are preferable to direct appeal. S ee Massaro v. United States , 538 U.S. 500, 504–05 (2003). IV. CONCLUSION The judgment of the district court is AFFIRMED.