* Pursuant to 5 T H C IR

. R. 47.5, the Court has determined that this opinion should not be

published and is not precedent except under the limit ed circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

August 16, 2004

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 03-40421

____________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ERVIN GIDDINGS, also known as Big E; ROBERT EARL

EDWARDS; LARRY MCKINNEY,

Defendants-Appellants.

Appeals from the United States District Court

For the Southern District of Texas

L-01-CR-1174-12

Before HIGGINBOTHAM, DAVIS, and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge: *

Appellants, Ervin Giddings, Rob ert Earl Edwards, and Larry McKinney, challenge their

convictions stemming from involvement with a wide-ranging drug distribution conspiracy. Edwards,

Giddings, and McKinney were each convicted of conspiracy to possess more than 1000 kilograms-2-

o f marijuana with intent to distribute. 21 U.S.C. §§ 846, 841(a), 841(b)(1)(A). Edwards and

Giddings were convicted of aiding and abetting the possession of more than 100 kilograms of

marijuana with intent to distribute. 21 U.S.C. §§ 841(a), 841(b)(1)(B), and 18 U.S.C. § 2. Edwards

was convicted of conspiracy to launder money. 18 U.S.C. §§ 1956(a)(1)(A)(i), 1956(h).

All three Appellants challenge the sufficiency of the evidence used for their convictions. “The

standard for evaluating the sufficiency of the evidence is whether a rational jury, viewing the evidence

in the light most favorable to the prosecution, could have found the essential elements of the offense

b eyond a reasonabl e doubt.” U nited States v. Rivera

, 295 F.3d 461, 466 (5th Cir. 2002). In

reviewing a sufficiency of the evidence claim, all reasonable inferences are drawn in favor of the jury’s

verdict. Id

. We review a district court’s denial of a motion of acquittal de novo

. United States v.

De Leon , 170 F.3d 494, 496 (5th Cir. 1999).

“To prove a drug conspiracy, the government must establish (1) the existence of an agreement

between two or more persons to violate federal narcotics laws; (2) the defendant’s knowledge of the

agreement; and (3) t he defendant’s voluntary participation in the agreement.” U nited States v.

DeLeon , 247 F.3d 593, 596 (5th Cir. 2001) (quotati on omitted). There was sufficient evidence for

a rational jury to convict all three defendants of drug conspiracy.

Evidence at trial clearly connected Edwards to the Oziel Garcia drug ri ng. Vasquez, the

Go vernment’s confidential witness, testified as to Edwards’ direct involvement in arranging t he

transportati on of marijuana. In numerous taped conversations Vasquez and Edwards discussed the

transportati on of marijuana. Additionally, Edwards employed or introduced to Vasquez numerous

drivers, including Giddings and McKinney, whose loads of marijuana were seized. Edwards also

spoke on the phone and exchanged monies with Oziel Garcia and Garcia’s associates. This evidence-3-

reveals a concert of action that rises above mere association. D eLeon

, 247 F.3d at 596. There was

sufficient evidence of drug conspiracy. The evidence at trial was also sufficient to convict Edwards

of aiding and abetting possession with intent to distribute. U nited States v. Delgado

, 256 F.3d 264,

274-75 (5th Cir. 2001).

There was also sufficient evidence to convict Giddings of drug conspiracy. Officers arrested

Giddings after discovering hundreds of pounds of marijuana in his tractor-trailer. Giddings claims

no knowledge of the narcotics, yet he cannot explain why he made an unscheduled stop at a

warehouse, a practice forbidden by his trucking contract, and allowed individuals to load an unknown

product on his rig. Additionally, Edwards gave Giddings’ pager number to Vasquez when Vasquez

indicated he needed a trucker to transport a shipment of marijuana. There was sufficient evidence

of Giddings’ knowledge of and voluntary participation in the drug conspiracy to allow a reasonable

jury could convict. For the same reasons, the evidence was sufficient to convict Giddings of aiding

and abetting possession with intent to distribute. Delgado , 256 F.3d at 274-75.

The evidence was also sufficient to convict McKinney of drug conspiracy. Vasquez testified

that McKinney was in Laredo to transport marijuana. In addition, during taped conversations Jesus

Chavez-Lopez, one of Oziel Garcia’s inner-circle, indicated to Vasq uez that he had worked wi th

McKinney before and that McKinney had done a poor job of delivering th e marijuana. A

coconspirator’s statement can be sufficient to convict. United States v. Turner , 319 F.3d 716, 721

(5th Cir. 2003). Based on testimony from Vasquez, taped discussion between Vasquez and ChavezLopez, McKinney’s admission that he knew he was transporting something illegal, and McKinney’s

Laredo-based meetings with Vasq uez, the evidence was sufficient for a reasonable jury to convict

McKinney of drug conspiracy.-4-

Edwards asserts the evid ence was insufficient to support his conviction for conspiracy to

launder money. “To prove conspiracy to launder money under 18 U.S.C. § 1956(h), the government

must establish ‘(1) that there was an agreement between two or m o re persons to commit money

laundering, and (2) that the defendant joined the agreement knowing its purpose and with the intent

to further the illegal purpose.’” United States v. Virgen-Moreno

, 265 F.3d 276, 284 (5th Cir. 2001)

(quoting United States v. Meshack

, 225 F. 3d 556, 573-74 (5th Ci r. 2000)). E vidence at trial

established that Edwards, via his drivers, sent proceeds from drugs sales t o Garcia. Additionally,

Vasquez testified that he sent money to Edwards on behalf of Oziel Garcia. Vasquez also testified

that all monies from Garcia were the product of the drug trade. “Once the government presents

evidence of a conspiracy, it only needs to pro duce slight evidence to connect an individual to the

conspiracy.” Virgen-Moreno , 265 F.3d at 285. In this case, there was evidence that Edwards sent

cash to Garcia and received wire transfers from Laredo, Garcia’s home base. Based on this evidence,

a rational jury could convict.

McKinney argues that the district court erred in admit t ing Vasquez’s tape-recorded

conversations. Statements offered against a party that were made by a co conspirator of the party

during the course and in furtherance of the conspiracy are not hearsay and are admissible. F ED

. R.

E VID

. 801(d)(2)(E); United States v. Mendoza-Medina

, 346 F.3d 121, 130 (5th Cir. 2003). “ Under

Rule 801(d)(2)(E), the proponent of admittance must prove by a preponderance of the evidence (1)

the existence of a conspiracy, (2) the statement was made by a co-conspirator of the party, (3) the

statement was made during the course of t he conspiracy, and (4) the statement was made in

f urtherance of the conspiracy.” U nited States v. Cornett

, 195 F.3d 776, 782 (5th Cir. 1999). We

review a district court’s admission of 801(d)(2)(E) testimony for abuse of discretion. Id

.-5-

The district court did not abuse its discretion in admitting the taped conversations. Evidence

established that McKinney was a member of the conspiracy. McKinney claims that he withdrew from

the conspiracy by drinking heavily. This argument is meritless. “A defendant is presumed to continue

in a conspiracy unless he makes a substantial affirmative show ing of withdrawal, abandonment, or

defeat of the conspiratorial purpose.” United States v. Torres , 114 F.3d 520, 525 (5th Cir. 1997)

(emphasis added). M cKinney’s voluntary i nt o xication would not appear “inconsistent with the

conspiracy and

. . . communicated in a manner reasonably calculated to reach his coconspirators.”

Id

. McKinney also contends that the taped conversation between Chavez-Lo pez and Vasquez

constituted only idle chatter. S ee Cornett

, 195 F.3d at 782. However, Chavez-Lopez and Vasquez’s

discussion of McKinney’s spotty record for transporting marijuana occurred wi thin the context of

deciding whether to trust him with another load. Clearly, this discussion was in furtherance of the

conspiracy. The Rule 801(d)(2)(E) factors were established by a preponderance of the evidence and

the district court did not abuse its discretion in admitting the taped conversations.

Edwards argues that the district court improperly applied a leadership role enhancement. The

district court applied a two-level enhancement concluding that Edwards was an “organizer, leader,

manager, or supervisor” of the criminal activity. S ee U.S. S ENTENCING G UIDEL INES M A NUAL §

3B1.1(c) (200 2 ); see also United States v. Gross

, 26 F.3d 552, 555 (5th Cir. 1994). The district

court found that Edwards, while not the ringleader, was “the organizer at the other end

. . . the guy

that was in charge of arranging the drivers.” We review the district court’s factual finding for clear

error. U nited States v. Ronning

, 47 F.3d 710, 711 (5th Cir. 1995). The district court’s finding is

plausible in light of the record as a whole. Evidence established that Edwards, at the behest of

Vasquez an d Garcia, sent McKinney to transport marijuana. Additionally, Edwards provided-6-

Vasquez wi t h Ervin Giddings’ pager number so as to contact him to arrange transportation of

marijuana. The reco rd supports the conclusion that Edwards “managed” many of the drivers that

transported marijua na. The district court’s two-level enhancement for a leadership role was not

erroneous. See Turner , 319 F.3d at 725.

The district court also applied a two-level enhancement for obstruction of justice. See U.S.

S ENTENCING G UIDELINES M ANUAL § 3C 1.1 (2002). The district court concluded that Edwards

perjured himself by concocting detailed lies about his (lack of) knowledge of and involvement in the

drug conspiracy. Edwards argues that the district court improperly enhanced his sentence because

his trial testimony was not wilfully false. We review the district court’s factual finding that Edwards

committed perjury for clear error. United States v. Adam , 296 F.3d 327, 334 (5th Cir. 2002).

Perjury is grounds for a two-level obstruction o f justice enhancement. A dam

, 296 F.3d at

334-35. “A witness testifying under oath or affirmation [commits perjury] if she gives false testimony

concerning a material matter with the willful intent to provide false testimony, rather than as a result

of confusion, mistake, or faulty memory.” United States v. Dunnigan , 507 U.S. 87, 94 (1993). At

sentencing, the district court stated:

And I think there’s no question, at least in my mind, and in the minds

of the jurors, that this t ale you wove at trial, under oath, was

materially false. You think it was true, but it wasn’t. And the whole

– it was

– I think the prosecution has it right, it was not only just “I

didn’t do it,” but you kind of spun this whole tale of stuff that was not

true at all.

Edwards contends that the district court’s statement “[y]ou think it was true, but it wasn’t”

necessarily disproves that he wilfully intended to provide false testimony. The context of the court’s

statement, however, evinces that the cou rt co ncluded Edwards intentionally lied about his-7-

involvement in and knowledge of the drug conspiracy. S ee United States v. Valencia

, 44 F.3d 269,

272 (5th Cir. 1995) (“A factual finding is not clearly erroneous if it is plausible in light of the record

read as a who le.”). Based on the evidence in the record, the district court’s conclusion was not

clearly erroneous.

Edwards argues that the district court erred in failing to sever his trial from t hat of his codefendants, McKinney and Giddings. Edwards waived this argument by failing to move for severance

before the district court. U nited States v. Mann , 161 F.3d 840, 861-62 (5th Cir. 1998); U nited

States v. Tolliver

, 61 F.3d 1189, 1199 (5th Cir. 1995), v acated and remanded on other grounds sub

nom. Sterling v. United States

, 516 U.S. 1105 (1996). Even assuming a rguendo that he p roperl y

raised the argument, Edwards cannot establish prejudice. Z afiro v. United States

, 506 U.S. 534, 537-

39 (1993); United States v. Walters , 87 F.3d 663, 670 (5th Cir. 1996)

.

Finally, Edwards and Giddings submitted supplemental briefs asserting that their sentences

were unlawful under Blakely v. Washington

,

___ U.S.

___, 124 S. Ct. 2531 (2004). This Court has

concluded that Blakely does not apply to the federal Sentencing Guidelines. U nited States v. Pineiro

,

___ F.3d ___, 2004 WL 1543170 at *9 (5th Cir. July 12, 2004). Unless the Supreme Court offers

intervening authority, we are bound by the ruling of a prior panel. W ilson v. Taylor

, 658 F.2d 1021,

1034 (5th Cir. 1981).

AFFIRMED.