* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-40720

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

RANDALL THOMAS CLARK; STEVE MARTIN

Defendants-Appellants

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 4:04-CR-103

Before SMITH, WIENER, and HAYNES, Circuit Judges.

PER CURIAM:*

Randall Thomas Clark and Steve Martin claim a number of errors related

to their convictions and sentences for conspiring to distribute and possess with

intentto distribute methamphetamine. In particular, Martin alleges a violation

of the Speedy Trial Act, challenges the sufficiency of the evidence for his

conviction, urges that the trial court abused its discretion in failing to give a

requested jury instruction, and faults the district court’s sentence. Clark asserts

that the trial court’s jury instructions were improper, and claims prejudice from

United States Court of Appeals

Fifth Circuit

F I L E D

August 6, 2008

Charles R. Fulbruge III

Clerk
No. 05-40720

1 Testimony at trial indicated that one to two ounces would be “dealer quantities.”

2

allegedly incorrect applications of the United States Sentencing Guidelines and

the factors set forth in 18 U.S.C. § 3553(a) (2003). Finding no error, we affirm.

I. BACKGROUND

Clark, Martin, and seven co-defendants were indicted by a federal grand

jury with conspiring to distribute and possess with intent to distribute over 500

grams of a mixture containing methamphetamine from approximately 1997 until

2004. Martin was also charged with being a felon in possession of a firearm. At

trial, the government presented testimony from law enforcement officers and

cooperating defendants alleging a criminal organization through which coconspirator Sergio Solis imported large amounts of methamphetamine from

Mexico, and distributed the narcotic to individuals including Clark and codefendant Michael Holland. 

Solis testified that he provided Clark half-pound amounts of

methamphetamine every week for three or four months, and witnessed Holland

sell Clark four-ounce quantities of methamphetamine on atleast ten occasions.1

Solis also claimed that Clark participated in the transportation of six pounds of

methamphetamine from Mexico in 2002, and stored one to four pounds of

methamphetamine five or six times. In all, the government urged that Clark

was responsible for no less than 14,052.8 grams of a mixture including

methamphetamine. 

Holland testified that he supplied one-quarter pound amounts of

methamphetamine to Martin on a weekly basis for eighteen months from the

summer of 2001 through early 2003. Martin was claimed by conspirator Tom

White to be involved in meetings with other conspirators to advance the

methamphetamine distribution operation. 
No. 05-40720

3

Officers searched Martin’s residence twice during the alleged conspiracy.

On May 1, 1998, they recovered forty-two grams of methamphetamine,

containers of a methamphetamine cutting agent, a scale, and multiple firearms

from his home. On June 29, 2004, the searching officers found drug

paraphernalia, a small amount of methamphetamine, two sets of scales, two

shotguns, several hundred rounds of ammunition for a handgun, forty to fifty

plastic baggies, $5,795 in cash, and a partial recipe for manufacturing

methamphetamine. The government argued that Martin was responsible for no

less than 7,392 grams of a mixture of methamphetamine, an amount that

resulted from an incorrect calculation of half of the weekly purchase of onequarter pound amounts of methamphetamine for eighteen months. Martin’s

counsel raised the prosecutor’s mathematical error during his closing argument.

The trial courtinstructed the jurors aboutthe elements necessary to prove

a drug trafficking conspiracy, largely adopting the language of Fifth Circuit

Pattern Jury Charge 2.89. However, the court denied Martin’s request for a

“buyer-seller” instruction, which would have indicated that a defendant cannot

be convicted of conspiracy based solely on evidence of being a buyer or seller of

narcotics. The court submitted a special verdict form, asking the jury to

“determine the quantity of methamphetamine or a mixture or substance

containing a detectable amount of methamphetamine, if any, attributable to

each defendant.” The jury found Clark, Martin, and another co-defendant guilty

of the narcotics conspiracy, and convicted Martin of being a felon in possession

of a firearm. Clark was held responsible for 14,052.8 grams of a mixture or

substance containing a detectable amount of methamphetamine; 6,224.4 grams

was attributed to Martin; and their co-defendant was deemed responsible for

597.9 grams. 

At Clark’s and Martin’s sentencings, the trial court adopted the findings

of fact contained in the Presentence Investigation Reports, which included as
No. 05-40720

4

relevant conduct the methamphetamine amounts determined by the trial jury.

Overruling Clark’s objection, the court explained:

Of course, one of your objections is about the quantity of the drugs.

The jury heard all of that evidence and the jury made a finding

about the quantity of drugs that this Defendant was responsible for

and I cannot fault the jury’s finding in that regard. I think the

evidence supported it. 

Based on the drug quantity,the district court calculated a Guidelines sentencing

range of 292 to 365 months imprisonment for Clark. However, the court

imposed a below-Guidelines sentence of 236 months imprisonment, explaining

that it was reasonable considering “all of the factors” of 18 U.S.C. § 3553(a),

particularly Clark’s age and the small likelihood of recidivism upon release from

prison.

At Martin’s sentencing hearing, the district court (1) overruled Martin’s

objection that the jury’s drug quantity finding was unreliable due to inadequate

instructions in the special verdict form; (2) determined that the mathematical

error during closing argument did not affect the quantity determination; and (3)

held Martin responsible for the 6,224.4 grams of methamphetamine found by the

jury. The court’s calculations resulted in a Guidelines sentencing range of 262

to 327 months. The district court imposed a sentence of 190 months of

imprisonment, explaining that it had considered the sentences of “ever[y] other

defendant in this case,” as well as Martin’s age and the other sentencing factors

set forth in 18 U.S.C. § 3553(a).

II. DISCUSSION

A. Martin’s Speedy Trial Act Claim

We first address Martin’s claim that his conviction should be vacated due

to a violation of the Speedy Trial Act, 18 U.S.C. § 3161 (1990). Whether a

district court has complied with the Speedy Trial Act is a matter of law subject

to de novo review. United States v. Jackson, 30 F.3d 572, 575 n.2 (5th Cir. 1994).
No. 05-40720

2 This section excludes from the time computation “[a]ny period of delay resulting from

a continuance . . . , if the judge granted such continuance on the basis of his findings that the

ends of justice served by taking such action outweigh the best interest of the public and the

defendant in a speedy trial.” 

3 Martin does not challenge as insufficient the evidence supporting his conviction for

being a felon in possession of a firearm. Accordingly, any such claim is waived. See United

States v. Pompa, 434 F.3d 800, 806 n.4 (5th Cir. 2005) (citing FED. R. APP. P. 28(a)(9)(A)).

5

The Speedy Trial Act requires that a defendant be tried within seventy

non-excludable days from the date he appears before a judicial officer of the

court in which the charge is pending. See 18 U.S.C. § 3161(c)(1), (h). However,

a defendant’s failure to move for dismissal prior to trial constitutes a waiver of

the right to dismissal. See 18 U.S.C. § 3162(a)(2) (1975). Here, Martin

acquiesced to the district court’s grant of a co-defendant’s motion to continue,

and did not object to the court’s finding of excludable time under an “ends of

justice” analysis. See 18 U.S.C. § 3161(h)(8)(A).2 Martin entirely failed to assert

a speedy trial violation until after his guilty verdict and subsequent sentencing.

Accordingly, any violation ofthe Speedy Trial Act was waived. See United States

v. Hernandez, 457 F.3d 416, 420 (5th Cir. 2006) (because of failure to assert

speedy trial rights until after the verdict, section 3162 “manifestly provides that

Appellants have waived the right to dismissal.”). 

B. Martin’s Sufficiency Claim

Martin next asks us to reverse the jury’s conspiracy verdictfor insufficient

evidence.3 Because Martin preserved his challenge to the sufficiency of the

evidence, we review de novo the district court’s denial of his Rule 29 motion for

judgment of acquittal. United States v. Payne, 99 F.3d 1273, 1278 (5th Cir.

1996). Sufficiency is considered “in the light most favorable to the jury verdict,”

and we should affirm “if a rational trier of fact could find that the government

proved all essential elements beyond a reasonable doubt.” United States v.

Grossman, 117 F.3d 255, 258 (5th Cir. 1997). “The evidence need not exclude
No. 05-40720

4 We have frequently recognized that firearms are “tools of the trade” of those engaged

in illegal drug activities. See, e.g., United States v. Martinez, 808 F.2d 1050, 1057 (5th Cir.

1987). 

6

every reasonable hypothesis of innocence or be wholly inconsistent with every

conclusion except that of guilt, and the jury is free to choose among reasonable

constructions ofthe evidence,” United States v. Anderson, 174 F.3d 515, 522 (5th

Cir. 1999) (quoting United States v. Burton, 126 F.3d 666, 669-70 (5th Cir.

1997)).

Martin was convicted of conspiring to distribute and possess with intent

to distribute more than 500 grams of a mixture containing methamphetamine,

in violation of 21 U.S.C. § 846 (1988). To establish Martin’s guilt for the

conspiracy charged in count one of the indictment, the government must have

proved beyond a reasonable doubt that (1) there was an agreement between two

or more persons to distribute or possess with intent to distribute 500 grams or

more of a mixture or substance containing a detectable amount of

methamphetamine; (2) Martin knew of the conspiracy and intended to join it;

and (3) he voluntarily participated in the conspiracy. See, e.g., United States v.

Mitchell, 484 F.3d 762, 768-69 (5th Cir. 2007), cert. denied, 128 S. Ct. 297, and

cert. denied, 128 S. Ct. 869 (2008). 

The government submitted evidence that Martin received well over 500

grams of methamphetamine from conspirator Randall Thomas Clark during an

eighteen month period; that he participated in meetings to advance the goals of

the broader narcotics distribution conspiracy; and that two searches of his

residence recovered methamphetamine, items consistent with drug sales

(including baggies, cutting agent, and scales), cash,firearms, and large amounts

of ammunition.4

Martin argues that such trial testimony was insufficient to tie him to the

crime, that no evidence was submitted that he sold narcotics during the
No. 05-40720

7

conspiracy, and that the testimony of cooperating defendants was biased and

unreliable. However, the weight and credibility of the evidence are the sole

province of the jury. United States v. Sanchez, 961 F.2d 1169, 1173 (5th Cir.

1992). “As long as it is not factually insubstantial or incredible, the

uncorroborated testimony of a co-conspirator, even one who has chosen to

cooperate with the governmentin exchange for non-prosecution or leniency, may

be constitutionally sufficient evidence to convict.” United States v. Medina, 161

F.3d 867, 872-73 (5th Cir. 1998) (quoting United States v. Westbrook, 119 F.3d

1176, 1190 (5th Cir. 1997)). Viewed in the light most favorable to the jury’s

verdict, the testimony of Holland, substantiated by the evidence recovered from

Martin’s residence, amply supports the finding that Martin was guilty of all

elements required to prove his participation in the methamphetamine

conspiracy. We therefore conclude that there was sufficient evidence from which

a rational jury could have found beyond a reasonable doubt that Martin was

guilty of the charged offense.

C. Martin’s Challenge to Denial of a Buyer-Seller Instruction

Martin next challenges the district court’s jury instructions, and

specifically faults the court’s refusalto provide a “buyer-seller”instruction in the

jury charge. We review a district court’s refusal to give a requested jury

instruction for abuse of discretion. United States v. Thomas, 12 F.3d 1350, 1365

(5th Cir. 1994). A district court abuses its considerable discretion by denying a

defendant’s request when (1) the proposed instruction is substantially correct;

(2) it was not substantially covered in the charge as a whole; and (3) omission of

the requested instruction “seriously impaired the defendant’s ability to present

a given defense.” United States v. Cain, 440 F.3d 672, 674 (5th Cir. 2006)

(internal citations omitted).

Martin correctly observes that evidence of a buyer-seller relationship is

not, by itself, sufficient to support a conviction for conspiracy. United States v.
No. 05-40720

8

Maseratti, 1 F.3d 330, 336 (5th Cir. 1993). However, Martin’s broader argument

is foreclosed by our precedent. See United States v. Mata, 491 F.3d 237, 241-42

(5th Cir. 2007), cert. denied, 128 S. Ct. 1219 (2008); United States v. Asibor, 109

F.3d 1023, 1035 (5th Cir. 1997); United States v. Thomas, 12 F.3d at 1365-66.

In Mata, the trial court refused to give a buyer-seller instruction, because the

jury charge contained a conspiracy instruction tracking Fifth Circuit Pattern

Jury Instruction 2.89. Id. at 242. Since that instruction adequately summarized

the law of conspiracy and covered the proposed buyer-seller language, the

district court did not abuse its discretion in failing to give the jury the additional

buyer-seller instruction. Id. In Asibor, we explained, “[s]o long as the jury

instruction given by the court accurately reflects the law on conspiracy, this

court will conclude that the buyer-seller relationship has also been adequately

covered.” Asibor, 109 F.3d at 1035. As in Mata and Asibor, the district court

here provided a correct definition of conspiracy to guide the jury in its

deliberations. See Mata, 491 F.3d at 242 (Fifth Circuit Pattern Jury Instruction

2.89 “is clearly an adequate instruction on the law of conspiracy”). Had the jury

concluded that Martin was merely a buyer or seller, the elements necessary to

prove a conspiracy would be lacking, and Martin would have been found not

guilty. Maseratti, 1 F.3d at 336. Accordingly, the district court did not abuse its

discretion in refusing Martin’s requested buyer-seller instruction, and did not

err by providing Pattern Jury Instruction 2.89. 

D. Clark’s and Martin’s Challenges to the Special Verdict Form

Clark and Martin fault the district court for failing to elaborate on the

meaning of “attributable” in the special verdict form, and for neglecting to

require a jury finding of foreseeable drug amounts. Such complaints regarding

the special verdict form reveal no error. Whether or not the jury understood the

concept of foreseeability, it is the judge, not the jury, who determines relevant

conduct for the purposes of Guidelines sentencing. Edwards v. United States,
No. 05-40720

9

523 U.S. 511, 513-14 (1998); United States v. Mares, 402 F.3d 511, 519 (5th Cir.

2005). Although the special interrogatory was a reasonable manner of

ascertaining relevant conduct prior to United States v. Booker, 543 U.S. 220

(2005), a jury finding of drug quantity beyond a reasonable doubt was not

required by Apprendi v. New Jersey, 530 U.S. 466 (2000). See FIFTH CIRCUIT

PATTERN JURY INSTRUCTIONS (Criminal Cases) § 2.89, application note (2001)

(citing United States v. Keith, 230 F.3d 784, 787 (5th Cir. 2000)) (Apprendi

doctrine inapplicable to court’s determination of each conspirator’s liability,

because the sentences did not exceed the statutory maximum). The reliability

of the facts found by the district court and reasonableness of the resulting

sentence do not require that the jury understood the meaning of “attributable,”

or fully appreciated the Guidelines definition of foreseeability. Accordingly, any

error in such a charge is harmless. 

E. Sentencing Challenges

1. Procedural

Clark and Martin contest the district court’s reliance on the jury’s drug

quantity findings, alleging error in the determination of the applicable base

offense level under the United States Sentencing Guidelines. We review de novo

a district court’s interpretation and application of the Sentencing Guidelines,

and review factual findings at sentencing for clear error. UnitedStates v.Yi, 460

F.3d 623, 635 (5th Cir. 2006). 

The Supreme Court has structured our sentencing review as a two-step

process. First, we are to review the sentencing process for “significant

procedural error, such as failing to calculate (or improperly calculating) the

Guidelines range, treating the Guidelines as mandatory, failing to consider the

§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing

to adequately explain the chosen sentence – including an explanation for any

deviation from the Guidelines range.” Gall v. United States, 128 S. Ct. 586, 597
No. 05-40720

10

(2007). We require a district court to provide adequate justifications so that our

review is meaningful and sentencing is perceived as fair. See id. An “unusually

lenient or an unusually harsh sentence” requires the district court to explain

why its conclusion “is appropriate in a particular case with sufficient

justifications.” Id. at 594. Second, we are to consider “the substantive

reasonableness ofthe sentence imposed under an abuse-of-discretion standard.”

Id. at 597. 

Clark and Martin appear to make a procedural challenge that the district

court erred in calculating the drug quantity amount and, therefore, the

concomitant Guidelines level. We find no error in the district court’s reliance on

the jury’s drug quantity finding in assessing relevant conduct. It is well-settled

that a sentencing judge has substantial discretion in sentencing, and is “entitled

to find by a preponderance of the evidence all the facts relevant to the

determination of a Guideline sentencing range and all facts relevant to the

determination of a non-Guidelines sentence.” Mares, 402 F.3d at 519. Indeed,

we have previously deemed appropriate a district court’s adoption of jurydetermined drug amounts using a similar special interrogatory. United States

v. Arnold, 416 F.3d 349, 362 (5th Cir. 2005) (affirming district court’s sentence

where drug quantity was found “solely based on facts found by a jury beyond a

reasonable doubt”) (emphasis in original). As the Seventh Circuit has observed,

our foremost concern upon review is that the district court’s fact findings are

based on reliable evidence. United States v. Bequette, 309 F.3d 448, 450-51 (7th

Cir. 2002) (affirming district court’s adoption of drug quantities found by jury’s

special verdict). “Given this concern with reliability, it seems incongruous to

suggestthat a jury’s drug quantity finding, made using only admissible evidence

and found beyond a reasonable doubt, is inadequate for sentencing guidelines

purposes.” Id. at 451.
No. 05-40720

5 The mathematical error of the prosecutor was explained to the jury in closing

argument, and was apparently not relied upon by the jury (as they found a lesser drug amount

than requested by the government). The error was again raised at Martin’s sentencing, and

the district court specifically concluded that it did not affect the jury’s quantity determination.

11

Here, the district court calculated Clark’s and Martin’s applicable offense

levels by adopting the jury’s finding of drug quantities attributable to each

defendant as relevant conductfor purposes of USSG § 1B1.3(a)(1). These values

were found by a jury beyond a reasonable doubt, appear to be conservatively

limited to each defendant’s direct involvement in the conspiracy, and find

support in the testimony presented at trial.5 The district court did not blindly

accept the jury’s verdict – he found that the quantities were supported by

considerable evidence. They certainly constitute a sufficiently reliable estimate

of the relevant conduct of each conspirator to be “plausible in light of the record

as a whole.” United States v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005)

(citation omitted). Accordingly, the district court did not err in its fact-finding

or resulting Guidelines calculations.

Clark complains that the district court insufficiently explained the reasons

behind his sentence of imprisonment. We find no error in the district court’s

explanation of its application of the factors set forth in 18 U.S.C. § 3553(a). The

court twice explained at Clark’s sentencing that it considered “all of the factors”

of 18 U.S.C. § 3553(a), and particularly cited Clark’s age and the small likelihood

of recidivism once he was released from prison. In fact, the district judge

ordered a sentence of imprisonment significantly below the applicable Guidelines

range. We have explained that, 

The court . . . need not engage in “robotic incantations that each

statutory factor has been considered.” United States v. Lamoreaux,

422 F.3d 750, 756 (8th Cir. 2005) (internal quotation marks

omitted); see UnitedStates v.Simpson, 430F.3d 1177, 1186-87 (D.C.

Cir. 2005) (finding no requirement for the district court to

“specifically refer to each [section 3553(a)] factor”) (emphasis in

original). Congress never intended sentencing “to become a
No. 05-40720

6 The trial judge also explained, “So, that the record will be clear, I have imposed a

sentence below the advisory guidelines because ofthe Defendant’s age. I do think that he does

have some medical problems which should be taken into consideration. But I think at his age

the sentence that I have imposed is sufficient to impose just punishment for the crime that he’s

been – or crimes he’s been convicted of. It’s sufficient to keep him from committing further

crimes if released. And it imposes just punishment.”

12

hyper-technical exercise devoid of common sense.” United States v.

Gonzalez, 250 F.3d 923, 930 (5th Cir. 2001). Thus, a checklist

recitation of the section 3553(a) factors is neither necessary nor

sufficient for a sentence to be reasonable. See United States v.

Dean, 414 F.3d 725, 729 (7th Cir. 2005).

United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006). The district court

gave adequate reasoning for its decision.

2. Substantive

Martin also objects that the district court’s sentence was

unconstitutionally disparate from his co-defendants, which appears to be a

challenge to the overall reasonableness of his sentence. The reasonableness of

a sentence is reviewed for abuse of discretion. Gall, 128 S. Ct. at 597; United

States v. Booker, 543 U.S. 220, 260-62 (2005). 

The district court conducted a relatively lengthy sentencing hearing for

Martin, and considered written and oral testimony that reflected the mitigating

factors of section 3553(a). In imposing sentence on Martin, the court specifically

cited rehabilitation,the sentences of co-defendants, Martin’s age, and “the other

sentencing factors set out in Section 3553,” before departing from the advisory

Sentencing Guidelines in Martin’s favor.6 The record is sufficiently clear that

the district court gave due consideration to the trial testimony and factors set

forth in § 3553(a) for each conspirator, and Martin has failed to demonstrate

that his ultimate sentence was unreasonable when viewed against the totality

of the 3553(a) factors. See Gall, 128 S. Ct. at 594, 597. 
No. 05-40720

13

Martin claims that his term of imprisonment resulted in an

unconstitutional sentencing disparity. He argues that his sentence was

significantly longer than those imposed on conspiracy leader Sergio Solis and coconspirator Mike Holland, both of whom were allegedly more culpable. However,

18 U.S.C. § 3553(a)(6) bars only unwarranted sentencing disparities among

similarly-situated co-defendants. We have recognized that an individual who

chooses to go to trial and contest guilt is not similarly-situated to a conspirator

– even one more involved in criminal conduct – who has pled guilty and provided

information to law enforcement authorities. UnitedStates v. Cisneros-Gutierrez,

517 F.3d 751, 767 & n.51 (5th Cir. 2008). That Solis and Holland cooperated

with the investigation, accepted responsibility, and testified against their coconspirators, establishes that they were not similarly situated to Martin. See

Gall, 128 S. Ct. at 600 (“From these facts, it is perfectly clear that the District

Judge considered the need to avoid unwarranted disparities, but also considered

the need to avoid unwarranted similarities among other co-conspirators who

were not similarly situated.”). In any case, the district court expressly stated

that it had considered the sentences imposed on “every defendant in the case”

in determining Martin’s below-guidelines sentence. Taking into account the

totality of the circumstances, we cannot say the district court abused its

discretion, or that the resulting sentence was unreasonable.

III. CONCLUSION

For the reasons stated above, Clark’s and Martin’s convictions and

sentences are AFFIRMED.