IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 95-50055

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

ALFREDO GAYTAN, JESUS GREGARIO MACIAS-MUNOZ, a/k/a Jesse Macias,

and RENE GANDARA-GRANILLO,

Defendants-Appellants.

_________________________

Appeals from the United States District Court

for the Western District of Texas

_________________________

January 23, 1996

Before GARWOOD, SMITH, and DENNIS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

The defendants appeal their convictions and sentences on a

number of charges arising from their involvement in a massive drug

trafficking conspiracy. We affirm in part, reverse in part, vacate

in part, and remand for resentencing.

I.

Between June 1988 and June 1992, Rene Gandara-Granillo

(“Gandara”) and Jesse Macias-Munoz (“Macias”) were the leaders of

a large-scale cocaine operation based in El Paso, Texas. Besides
2

trafficking in cocaine, they arranged the kidnapping, torture, and

interrogation of several of their associates who failed to account

for missing cocaine or funds. Alfredo Gaytan was a lower-level

operative in the conspiracy who participated in several meetings

involving the drug transactions, and on at least one occasion

stored and counted large quantities of cocaine at his residence.

Altogether, the conspirators may have moved over 8,000 kilograms of

cocaine during the course of several years.

A federal investigation utilized undercover agents, extensive

surveillance, wiretapping of the defendants' cellular phones,

information provided by coconspirator, and the co-conspirators’

post-arrest statements. The investigation culminated in an elevencount indictment charging the defendants with conspiracy to import

cocaine (count one), conspiracy to possess cocaine with intent to

distribute (count two), money laundering (counts three through

seven), conspiracy to kidnap (counts eight and nine), and use of a

telephone with intent to commit a crime of violence (counts ten and

eleven). Counts one and two named thirteen coconspirators and

referred to others “known and unknown.”

After a lengthy trial, Macias was found guilty on counts one,

two, three, six, eight, nine, ten, and eleven; Gandara was found

guilty on counts two, four, five and eight; and Gaytan was found

guilty on count two but acquitted as to count one. Macias and

Gandara were sentenced to life imprisonment, while Gaytan received

a 188-month sentence. 
3

II. Alleged Errors in the Indictment

Counts one and two charged criminal conspiracy. The defendants assert that their convictions on these counts must be

reversed because (1) the indictment failed to provide adequate

notice of the charges; (2) there was a fatal variance between the

indictment and the evidence produced at trial; and (3) the district

court refused their requested multiple conspiracy instruction.

A. Adequate Notice of the Charges

We review the sufficiency of an indictment de novo. United

States v. Nevers, 7 F.3d 59, 62 (5th Cir. 1993), cert. denied, 114

S. Ct. 1124 (1994). We will not reverse convictions for minor

deficiencies in the indictment that cause no prejudice. United

States v. Flores, 63 F.3d 1342, 1360 (5th Cir. 1995); United States

v. Chappell, 6 F.3d 1095, 1099 (5th Cir. 1993), cert. denied, 114

S. Ct. 1235, and cert. denied, 114 S. Ct. 1235 (1994).

The defendants complain that counts one and two are "factually

barren" and violate both FED. R. CRIM. P. 7(c)(1) and the Sixth

Amendment, because "[a]llegations such as time, dates, places and

persons involved and specific criminal acts, [sic] necessary to

know the nature of the charges and prepare a defense simply are

lacking." More particularly, the defendants argue that their

attorneys could not adequately investigate the circumstances or the

persons involved in any of the specific transactions involved in

the alleged conspiracy.

The Sixth Amendment requires that an indictment (1) enumerate
 

1 The defendants rely upon United States v. Cruikshank, 2 Otto (92

U.S.) 542 (1875), to support their argument. But our holding in Ellender takes

Cruikshank into consideration, at least derivatively. Ellender is the progeny

of United States v. Gordon, 780 F.2d 1165 (5th Cir. 1986), which explicitly

considered Cruikshank before concluding that "the language of the statute may

guarantee sufficiency if all required elements are included in the statutory

language." Id. at 1171; see United States v. Lavergne, 805 F.2d 517, 521 (5th

Cir. 1986) (relying on Gordon); Ellender, 947 F.2d at 755-56 (relying on

Lavergne).

4

each prima facie element of the charged offense; (2) fairly inform

the defendant of the charges filed against him; and (3) provide the

defendant with a double jeopardy defense against future prosecutions. United States v. Arlen, 947 F.2d 139, 144 (5th Cir. 1991),

cert. denied, 503 U.S. 939 (1992). The dictates of FED. R. CRIM P. 7

are essentially the same. See United States v. Ellender, 947 F.2d

748 (5th Cir. 1991); see also Nevers, 7 F.3d at 62. 

In Ellender, defendants convicted of conspiracy to import

marihuana challenged the sufficiency of the indictment for failure

to specify the time, location, and precise dates of acts involved

in the conspiracy. We held that the indictment language "'commencing in or about the month of July, 1982, and continuing through the

month of August, 1984 . . .'" was sufficient. Id. at 755-56 ("The

precise dates on which the appellant committed the alleged acts are

not necessary."). We also held that the language "in the Western

District of Louisiana, and elsewhere" was sufficient to identify

the location of the conspiracy. Id. The language of the indictment before us is nearly identical and therefore sufficient.1

Nor is it fatal that the indictment failed to identify

specific criminal acts constituting the alleged conspiracy. The

purpose of the indictment is to provide the defendant with notice
5

of the offense with which he is charged. See United States v.

Hagmann, 950 F.2d 175, 182 (5th Cir. 1991), cert. denied, 506 U.S.

835 (1992). "[A]n indictment need not allege an overt act in

furtherance of the conspiracy if the indictment alleges a conspiracy to distribute drugs, the time the conspiracy was operative, and

the statute allegedly violated." United States v. Khan, 728 F.2d

676, 681 (5th Cir. 1984).

While the defendants complain of the indictment's failure to

identify unindicted coconspirators, they concede that the prosecution produced a list of forty-seven individuals five days prior to

trial pursuant to an order by the district court. Five days’

notice is certainly less than ideal, but the defendants cite no

cases requiring that the indictment name unindicted coconspirator,

nor do they provide evidence of any prejudice arising from the

government's failure to disclose these names earlier. We therefore

find no error.

B. Fatal Variance

The defendants maintain that a fatal variance existed between

the evidence presented at trialSSwhich they allege demonstrated the

existence of six separate conspiraciesSSand the indictment, which

alleged a single conspiracy. We may reverse a conviction when the

defendant both proves a variance between the government's evidence

at trial and the allegations in the indictment and demonstrates

that the variance prejudiced his substantial rights. United States

v. Morris, 46 F.3d 410, 414 (5th Cir.), cert. denied, 115 S. Ct.
6

2595, and cert. denied, 115 S. Ct. 2595 (1995); United States v.

Puig-Infante, 19 F.3d 929, 935-36 (5th Cir.), cert. denied, 115

S. Ct. 180 (1994). We find no variance between the indictment and

the evidence adduced at trial, and we therefore do not consider

whether the defendants' substantial rights were prejudiced.

"We must affirm the jury's finding that the government proved

a single conspiracy unless the evidence and all reasonable

inferences, examined in the light most favorable to the government,

would preclude reasonable jurors from finding a single conspiracy

beyond a reasonable doubt." United States v. De Varona, 872 F.2d

114, 118 (5th Cir. 1989). To establish the existence of a drug

conspiracy, the government must prove "(1) the existence of an

agreement between two or more persons to violate the narcotics

laws; (2) that each conspirator knew of the conspiracy and intended

to join it; and (3) that each alleged conspirator participated in

the conspiracy." Morris, 46 F.3d at 414-15. Among the factors to

be considered in determining whether a single conspiracy was proven

by the government are (1) the existence of a common goal, (2) the

nature of the scheme, and (3) whether the participants overlapped.

Id. at 415; Puig-Infante, 19 F.3d at 936.

The evidence was sufficient to support a finding of a single

conspiracy under the above standard. The common goal of the

conspiracy was financial gain through the importation and distribution of cocaine from El Paso to California. The evidence demonstrated that each defendant played a particular role in the

conspiracy. Intercepted conversations between Macias and Gandara,
7

viewed in combination with testimony and tape recordings of each of

them regarding other transactions, suggests that they were heavily

involved in the planning and distribution of the cocaine. There

was evidence that Gaytan counted and stored 115 kilograms of

cocaine at his home at Macias's direction. Macias was also

involved with the storage of money at Gaytan's residence. Taken in

conjunction, the evidence demonstrates significant overlap between

the defendants, with each performing special functions critical to

the overall success of the enterprise. A reasonable juror

considering this evidence could find that a single conspiracy

existed. See Morris, 46 F.3d at 416 (holding that "the existence

of a single conspiracy will be inferred where the activities of one

aspect of the scheme are necessary or advantageous to the success

of another aspect or to the overall success of the venture").

III. The Multiple Conspiracy Instruction

The defendants next argue that the court erred by denying

their request to give the Fifth Circuit Pattern Jury Instruction.

We review a refusal to give a requested jury instruction for abuse

of discretion. Morris, 46 F.3d at 418. We reverse only if the

proposed instruction is (1) substantively correct, (2) was not

substantially covered in the charge actually delivered to the jury,

and (3) concerns an important point in the trial so that failure to

give it seriously impaired the defendant's ability to present a

defense effectively. Id. at 418-19; United States v. Storm, 36

F.3d 1289, 1294 (5th Cir. 1994), cert. denied, 115 S. Ct. 1798
8

(1995).

The substance of the requested instruction was adequately

covered by the charge. The court departed from the Pattern Jury

Instruction to offer a more precise one because more than one

conspiracy count was alleged in the indictment. In doing so, the

court did not abuse its discretion.

IV. The Roving Wiretap

Much of the government's evidence consisted of tape recordings

and transcripts of the defendants' cellular telephone conversations

obtained through a wiretap. Macias and Gandara contend that the

district court erred by denying their motions to suppress that

evidence. They argue that the "roving wiretap" provision of 18

U.S.C. § 2518(11)(b), which the government relied on when obtaining

the wiretap order, violates the Fourth Amendment. If the provision

is constitutional, they maintain the district court nonetheless

should have suppressed the conversations because the government

failed to comply with the statutory requirements for a roving

wiretap.

A. Constitutionality of the Roving Wiretap Provision

The defendants argue that a roving wiretap violates the

particularity requirement of the Fourth Amendment because it

authorizes interceptions without requiring the government to

identify the place of interception in the warrant. Only the Ninth

Circuit has addressed the constitutionality of the roving wiretap
9

provision, and it found the provision acceptable. See United

States v. Petti, 973 F.2d 1441 (9th Cir. 1992), cert. denied, 113

S. Ct. 1859 (1993); see also United States v. Bianco, 998 F.2d

1112, 1122-24 (2d Cir. 1993) (upholding constitutionality of

"roving bugs" to intercept oral communications not transmitted via

wire or electronic means on similar grounds), cert. denied, 114

S. Ct. 1644 (1994). Petti noted that § 2518 permits only surveillance of telephone facilities used by a speaker identified in the

wiretap order and excuses the identification of particular

telephone facilities only if the government establishes that the

person to be intercepted has attempted to evade surveillance by

changing facilities. Petti, 973 F.2d at 1445. We find Petti

persuasive and join the Ninth Circuit in finding the roving wiretap

provision constitutional.

B. Conformity with Statutory Requirements

The defendants next argue that the government failed to comply

with the requirements of § 2518. First, they complain that the

wiretap order itself allowed the interception of conversations of

persons not identified in the order. As a result, they argue that

conversations between parties not specifically named in the order

were intercepted by federal agents. They also maintain that the

government failed to follow procedures to minimize the interception

of such conversations. Second, the defendants assert that the

affidavit submitted by the government in support of its application

was insufficient to demonstrate that the defendants had attempted
10

to evade surveillance. The defendants suggest that the proper

remedy for these deficiencies is the suppression of all intercepted

communications.

It is true that the order allowed the interception of

telephone conversations that did not involve a person specifically

named in the order. As written, the order permitted the

"intercept[ion of] wire communications of JESUS GREGORIO MACIASMUNOZ, aka Jesse Macias, Tocayo; . . . RENE GANDARA-GRANILLO, aka

Compa, Compira; . . . and others yet unknown" (emphasis added).

The government contends that this was a mere clerical error and

that the order should have read "with others yet unknown." It is

also true that the government intercepted many phone calls that did

not involve any of the parties specifically named in the order,

though it maintains that it properly screened calls and terminated

interception when it became apparent that none of the named parties

was involved in the conversation.

Even assuming the order to be overly broad and some of the

interceptions to have been improper, the district court corrected

the matter by excluding from evidence "[i]nterceptions from the

cellular telephones not involving at least one of these individuals

[named in the wiretap order] as a party to the conversation." The

exclusionary rule does not require the exclusion of those

conversations that were properly intercepted as well. See United

States v. Morris, 977 F.2d 677, 682 (1st Cir. 1992) (holding

partial suppression sufficient where search warrant valid as to

some items but not as to others), cert. denied, 113 S. Ct. 1588
11

(1993); United States v. Baldwin, 987 F.2d 1432, 1436 (9th Cir.)

(holding that only items seized pursuant to invalid portions of

warrant must be suppressed), cert. denied, 113 S. Ct. 2948 (1993).

The defendants' second argumentSSthat the government did not

demonstrate that the defendants had engaged in conduct to thwart

surveillanceSSalso fails. The affidavit of Elias Hernandez

supporting the government's request for the wiretap order indicated

that the defendants had engaged in a pattern of changing cellular

phone numbers in an effort to avoid surveillance.

V. The Admission of Gaytan's Post-Arrest Statement

Gaytan argues that the district court erred by admitting his

statement to an FBI agent following his arrest on February 4, 1993,

that he had stored cocaine at his house for Jaime Carrera

approximately six months earlier. Gaytan urges that this statement

was inadmissible because it referred to a period not named in the

indictment and was therefore evidence of another crime. He also

contends that it was obtained in violation of his Sixth Amendment

right to counsel.

We review the admission of Gaytan's statement under the

evidence rules for plain error, as Gaytan failed to raise an

objection at trial. See, e.g., United States v. Vaquero, 997 F.2d

78, 83 (5th Cir.), cert. denied, 114 S. Ct. 614 (1993). We

conclude that it was not plain error for two reasons. First, FED.

R. EVID. 404(b) allows the admission of evidence of other crimes to

establish "proof of motive, opportunity, intent, preparation, plan,
12

knowledge, identity, or absence of mistake or accident," although

such evidence is inadmissible "to prove the character of a person

in order to show action in conformity therewith." It was within

the court's discretion to determine whether the government sought

to admit the statement for the former, legitimate reason or the

latter, inappropriate one. Furthermore, Gaytan's statement may

have been admissible because it referred to a vague time period.

Gaytan indicated that he had stored cocaine with Carrera

"approximately" six months prior to his arrest, or August 4, 1992.

The indictment covers a period ending in June 1992.

"Approximately" implies a margin of error. It is therefore

possible that Gaytan's admission did refer to the period named in

the indictment.

Gaytan's Sixth Amendment claim is equally without merit.

Although the Sixth Amendment right to counsel attaches at

indictment, see Michigan v. Jackson, 475 U.S. 625, 629-30 (1986)

(stating that right to counsel attaches when adversary judicial

proceedings are initiated), the "mere attachment" of Sixth

Amendment rights does not prevent law enforcement officers from

attempting to interrogate the defendant. Montoya v. Collins, 955

F.2d 279, 282 (5th Cir.), cert. denied, 113 S. Ct. 820 (1992). As

long as the defendant is given Miranda warnings, his voluntary

decision to answer questions without invoking the right to counsel

constitutes waiver. Id. 

An FBI agent testified at trial that Gaytan was advised of his

right to consult with an attorney before answering any questions
13

and that Gaytan indicated that he understood those rights and

elected to talk with the arresting agent. He therefore waived his

right to counsel.

VI. Failure To Provide a Limiting Instruction

Although most of the evidence presented at trial related to

counts three through eleven, Gaytan was not indicted on those

counts. He maintains that the district court erred by failing to

instruct the jury that it should not consider, against him,

evidence that related solely to counts three through eleven.

Because he failed to request such a limiting instruction, we review

for plain error. United States v. Prati, 861 F.2d 82, 86 (5th Cir.

1988).

Although the court did not issue a limiting instruction, it

did instruct the jury that "[e]ach offense and evidence pertaining

to it should be considered separately." Furthermore, Gaytan's

counsel informed the jury that his client was "charged only with

the first two counts" and that "he's not charged in any kidnapping

counts or using the telephone or money laundering." Although

Gaytan complains that the prosecutor stated in closing arguments

that "they [the defendants] have been involved in tortures, in

abductions, and that is what is at the heart of this case," we do

not believe this statement was prejudicial. The prosector

subsequently clarified that only two personsSSMacias and

GandaraSSwere responsible for the kidnappings and torture. We find

Gaytan's argument without merit because "the charge, considered as
14

a whole, [was not] so clearly erroneous as to result in a

likelihood of a grave miscarriage of justice." Id. (quoting United

States v. Varkonyi, 645 F.2d 453, 460 (5th Cir. Unit A May 1981)).

VII. The Money Laundering Convictions

Macias and Gandara challenge the sufficiency of the evidence

to support their convictions for money laundering under 18 U.S.C.

§ 1956(a)(1)(A)(I). We view the evidence in the light most

favorable to the jury verdict and affirm if a rational trier of

fact could have found that the government proved all essential

elements of the offense beyond a reasonable doubt. Puig-Infante,

19 F.3d at 937. To support a conviction for money laundering under

§ 1956(a)(1)(A)(I), the government must prove that (1) the

defendant conducted or attempted to conduct a financial

transaction, (2) which the defendant then knew involved the

proceeds of unlawful activity, (3) with the intent to promote or

further unlawful activity. Id.; United States v. Morris, 46 F.3d

at 423.

Macias and Gandara maintain that there was insufficient

evidence that they had conducted a "financial transaction" with the

proceeds of unlawful activity. In Puig-Infante, we distinguished

a transaction of funds from mere transportation of funds, noting

that a transaction involved "a purchase, sale, loan, pledge, gift,

transfer, delivery, or other disposition . . . ." 19 F.3d at 938

(quoting 18 U.S.C. § 1956(c)(3)). "[F]or something (not involving

a financial institution or its facilities) to be a transaction, it
 

2 The Pimentels were to deliver the money to Macias himself, while

Carrera delivered the money to Gandara.

15

must be a 'disposition.' 'Disposition most commonly means 'a

placing elsewhere, a giving over to the care or possession of

another.'" Id. (quoting WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 654

(1961)). We also observed that funds do not become the proceeds of

drug trafficking until a sale of drugs is completed. Hence, a

transaction to pay for illegal drugs is not money laundering,

because the funds involved are not proceeds of an unlawful activity

when the transaction occurs, but become so only after the

transaction is completed:

However, because the money did not become proceeds of

unlawful activity until the sale of the marihuana was

completed, what the government describes as one

transaction is actually two separate actions: the first,

the sale by the Puigs of the marihuana to the Willises

and their payment to Abigail Puig for same, is a

transaction (and an unlawful one) but is not shown to

have been one which involved the proceeds of unlawful

activity; the second, Abigail Puig's transportation of

the money from Florida to Laredo, involves the proceeds

of unlawful activity but is not a transaction.

Id. at 939.

Applying this standard, we reverse Macias's conviction on

count six and Gandara's conviction on count four. In both cases,

Jorge Aguilera owed Macias money for a drug debt. Macias sent a

third partySSRaul and Gloria Pimentel in one instance and Jaime

Carrera in the otherSSto retrieve the money. The money did not

become the proceeds of drug trafficking, however, until Macias (or

Gandara)2 received it. Nor is there any evidence indicating that

Aguilera obtained the money through unlawful activity. Thus, while
16

it is true that several transactions took place, none involved the

proceeds of unlawful activity. 

We affirm Macias's conviction on count three and Gandara's

conviction on count five. With respect to count three, Macias

contends only that no transaction occurred. He concedes, however,

that there was evidence that he received $2,000,000 from Navarro,

which he then stored at Gaytan's residence, and that Navarro later

retrieved the money. By delivering the proceeds to Gaytan's

residence for storage and later to Navarro at Sunset Motors, Macias

effected a "placing elsewhere" or "giving over to the care or

possession of another" sufficient to establish a disposition of the

funds. 

We affirm Gandara's conviction on count five on the basis of

Carrera's testimony that he and his brother delivered the proceeds

of a cocaine sale to Gandara in El Paso. The delivery from Carrera

to Gandara was a transaction, and, because Carrerra obtained the

funds from a drug sale, the transaction involved the proceeds of an

unlawful activity.

VIII. The Kidnapping Counts

Macias and Gandara argue that the district court committed

reversible error by not dismissing the kidnapping counts for

failing to name the alleged victims. We find no merit in this

argument. Although the court did not dismiss the indictment, it

did order the government to identify the victims and the government

complied.
 

3 The court did not actually order the government to disclose the names

until September 1, however.

17

The defendants claim prejudice because the court ordered that

the government disclose the victims' names on September 1, less

than two weeks before trial. Any prejudicial delay, however, was

the defendants' own fault, for they waited until August to move for

dismissal. It is true that they requested a bill of particulars in

April, and the court indicated that they were entitled to know the

names of the kidnapping victims,3 but they failed promptly to file

a motion for dismissal when the government did not disclose the

names. We find no reversible error.

IX. Failure Properly To Swear a Witness

Gaytan asserts that the district court committed plain error

by failing properly to swear a government witness. He raised no

objection to this failure at trial, however. It is the general

rule that a defendant who does not object to a failure to swear a

witness at trial waives any right to raise that issue on appeal.

United States v. Perez, 651 F.2d 268, 273 (5th Cir. Unit A July

1981). Gaytan has provided us with no reason to depart from that

rule here. We therefore deem this claim to have been waived.

X. Impeachment Information in the Presentence Reports

The district court conducted an in camera review of the sealed

presentence reports of two government witnesses, Jaime Carrera and

Alejandro Navarro, pursuant to United States v. Jackson, 978 F.2d
18

903, 909 (5th Cir. 1992), cert. denied, 113 S. Ct. 2429 (1993).

Macias and Gaytan contend that the court erred in its determination

that the reports contained no impeachment evidence to which they

were entitled. We review for clear error only. See, e.g., United

States v. Mora, 994 F.2d 1129, 1139 (5th Cir. 1993), cert. denied,

114 S. Ct. 417 (1993). We will not reverse unless “there is a

reasonable probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been different.”

United States v. Bagley, 473 U.S. 667, 682 (1985). Upon careful

consideration of the pages cited by the defendants in their briefs,

we conclude that the district court's determination was not clearly

erroneous.

XI. Gaytan's Ineffective Assistance of Counsel Claim

Gaytan asserts that he received ineffective assistance of

counsel at trial. He did not raise this claim before the district

court, however, and we generally will not review an ineffective

assistance of counsel claim for the first time on direct appeal.

United States v. Navejar, 963 F.2d 732, 735 (5th Cir. 1992) (noting

that we consider "'claims of inadequate representation on direct

appeal only in rare cases where the record allow[s] us to fairly

evaluate the merits of the claim'") (quoting United States v.

Higdon, 832 F.2d 312, 314 (5th Cir. 1987), cert. denied, 484 U.S.

1075 (1988)); United States v. Bounds, 943 F.2d 541, 544 (5th Cir.

1991).

While Gaytan alleges several errors that may support a claim
19

of ineffective assistance of counsel, no hearing was held in the

district court to develop a record. Nor is the record sufficient

to resolve the question. We therefore decline to hear this claim,

without prejudice to Gaytan's ability to raise it in a habeas

corpus proceeding.

XI. Sentencing Issues

A. Quantity of Drugs for Calculating Base Offense Level

Macias and Gandara contend that the district court failed to

make adequate findings regarding the quantity of drugs attributable

to them as required by FED. R. CRIM. P. 32(c)(1), which provides that

"[f]or each matter controverted, the court must make either a

finding on the allegation or a determination that no finding is

necessary because the controverted matter will not be taken into

account in, or will not affect, sentencing." Id. At sentencing,

the defendants contested the amount of drugs attributed to them in

the presentence report ("PSR"). The district court then entered a

separate finding with respect to each defendant, stating that a

preponderance of the evidence established that each had been

involved in a conspiracy involving not less then 1,500 kilograms of

cocaine.

Rule 32 does not "'require a catechismic regurgitation of each

fact determined and each fact rejected.'" Puig-Infante, 19 F.3d at

943 (quoting United States v. Sherbak, 950 F.2d 1095, 1099 (5th

Cir. 1992)); see also United States v. Mora, 994 F.2d at 1141 ("The

defendant is generally provided adequate notice of the district
 

4 See United States v. Young, 981 F.2d 180, 185 n.7 (5th Cir. 1992)

("If the district court's account of the evidence is plausible in light of the

record viewed in its entirety, the court of appeals may not reverse it even

though convinced that had it been sitting as trier of fact, it would have weighed

the evidence differently.") (quoting Anderson v. City of Bessemer City, 470 U.S.

564, 565 (1985) (syllabus)), cert. denied, 113 S. Ct. 1986, and cert. denied, 113

S. Ct. 2454 (1993). 

20

court's resolution of the disputed facts when the court merely

adopts the findings of the PSR."). In Puig-Infante, we held that

the district court's findings satisfied rule 32 where the court

expressly had adopted the findings in the PSR regarding the amount

of drugs attributable to the defendant and explained that its

decision to adopt the findings was based upon its assessment of the

testimony presented by the government. 19 F.3d at 943. The facts

of this case are indistinguishable: The court adopted the findings

in the PSR and found that a preponderance of the evidence indicated

that the defendants had been involved in a conspiracy involving

"not less than 1,500 kilograms of cocaine." This satisfied the

rule.

Macias and Gandara also contend that the information relied

upon by the district court did not possess "sufficient indicia of

reliability" as required under U.S.S.G. § 6A1.3(a), p.s. They

assert that the court erred by relying upon quantity calculations

contained in the PSR’s that were based almost entirely on the

unreliable testimony of Jaime Carrera, a coconspirator turned

government witness. They argue that they demonstrated multiple

inconsistencies in Carrera's testimony and that Carrera's status as

a cooperating government witness undermined his credibility.

We review the district court's findings for clear error.4 For
21

purposes of sentencing, "the court may consider relevant

information without regard to its admissibility under the rules of

evidence applicable at trial, provided that the information has

sufficient indicia of reliability to support its probable

accuracy." U.S.S.G. § 6A1.3(a), p.s.; see, e.g., United States v.

West, 58 F.3d 133, 138 (5th Cir. 1995). Even uncorroborated

hearsay evidence may be sufficiently reliable. Id.

The court's findings are not clearly erroneous. While Macias

and Gandara dispute the reliability of Carrera's testimony, they do

not demonstrate that his testimony regarding the quantity of

cocaine was "materially untrue." Young, 981 F.2d at 185 ("The

defendant bears the burden of demonstrating that the information

the district court relied on is 'materially untrue.'"). Much of

Carrera's testimony was corroborated by the testimony of other

witnesses, the defendants' own statements, and wiretap

interceptions. The fact that portions of Carrera's testimony are

uncorroborated is not fatal, especially as Carrera was subject to

extensive cross-examination at trial.

Macias and Gandara finally maintain that due process requires

the government to prove beyond a reasonable doubt the quantity of

drugs attributable to them. We ordinarily apply a preponderance of

the evidence standard to such findings. The defendants urge that

applying the preponderance standard here allows the government to

obtain a mandatory life sentence without complying with the

stricter burden of proof employed in other mandatory life cases.

They argue that the need for the stricter standard of proof is
22

particularly compelling in a case in which only forty-five

kilograms of cocaine were actually seized.

It is well-established that the preponderance standard is the

applicable standard for sentencing purposes. United States v.

Angulo, 927 F.2d 202, 205 (5th Cir. 1991); United States v.

Billingsley, 978 F.2d 861, 866 (5th Cir. 1992), cert. denied, 113

S. Ct. 1661 (1993). The defendants cite no authority holding that

a different standard should apply under these circumstances. In

fact, we recently rejected an argument involving similar facts.

See United States v. Mergerson, 4 F.3d 337, 344 (5th Cir. 1993),

cert. denied, 114 S. Ct. 1310 (1994) (rejecting application of

reasonable doubt standard to quantity finding that required

mandatory life sentence without possibility of release). 

Nor is it significant that only forty-five kilograms were

seized. The guidelines specifically state that "[w]here there is

no drug seizure or the amount seized does not reflect the scale of

the offense, the court shall approximate the quantity of the

controlled substance." U.S.S.G. § 2D1.1, comment. (n.12). We

therefore conclude that the court properly calculated the amount of

drugs attributable to Macias and Gandara.

B. Weapon Enhancement

Macias challenges the district court's finding that a twolevel enhancement was warranted for the possession or use of a

dangerous weapon on the drug conspiracy counts, the kidnapping

counts, and the telephone counts. The district court's
 

5 United States v. Sparks, 2 F.3d 574, 587 (5th Cir. 1993)

(foreseeability), cert. denied, 114 S. Ct. 720, and cert. denied, 114 S. Ct. 899,

and cert. denied, 114 S. Ct. 1548 (1994); United States v. Fierro, 38 F.3d 761,

775 (5th Cir. 1994) (presence of weapon), cert. denied, 115 S. Ct. 1388, and

cert. denied, 115 S. Ct. 1341 (1995).

23

determination that a weapon was present and that its possession by

a co-conspirator was foreseeable is a factual finding reviewable

for clear error.5

The district court applied the enhancement to the drug

conspiracy counts pursuant to U.S.S.G. § 2D1.1(b)(1). The increase

applies if a dangerous weapon was possessed during the course of

manufacturing, importing, exporting, or trafficking in narcotics,

including attempting or conspiring to do so. Id. If only a

coconspirator possessed a dangerous weapon, the enhancement applies

if his possession was reasonably foreseeable to the defendant.

Sparks, 2 F.3d at 586-87. A court "'may ordinarily infer that a

defendant should have foreseen a codefendant's possession of a

dangerous weapon, such as a firearm, if the government demonstrates

that another participant knowingly possessed a weapon while he and

the defendant committed the offense.'" Id. (quoting United States

v. Aguilera-Zapata, 901 F.2d 1209, 1215 (5th Cir. 1990)).

The district court expressly stated that it was basing the

enhancement on a confrontation between Macias and Alejandro Navarro

regarding missing proceeds from a drug transaction. Navarro

testified that he saw a gun in the belt of Julio Bustillos, who

accompanied Macias to the confrontation.

Macias argues that the enhancement should not have been

applied because "Navarro did not testify that Macias possessed a
24

weapon, knew that [Bustillos] had a gun, or was in a position to

have seen that [Bustillos] possessed a gun." Even if Macias did

not know that Bustillos was carrying a gun, however, the court

could properly infer, from the fact that Bustillos actually had a

gun, that he could have reasonably foreseen that Bustillos would

have one. Sparks, 2 F.3d at 586-87.

Macias also complains that the court improperly applied the

enhancement to the telephone counts. We cannot determine whether

the enhancement should have been applied, however, because the

district court applied the wrong sentencing guideline. The court

adopted the PSR's recommendations in toto on the telephone counts,

although the PSR applied U.S.S.G. § 2E1.4 to those counts. That

section determines the sentence for violations of 18 U.S.C. § 1958

(prohibiting the use of interstate facilities in the commission of

murder-for-hire). The PSR should have applied U.S.S.G. § 2E1.2,

which controls the sentence for violations of 18 U.S.C. § 1952

(prohibiting the use of interstate facilities in aid of a

racketeering enterprise). We therefore vacate Macias's sentence on

counts ten and eleven and remand for resentencing under U.S.S.G.

§ 2E1.2.

Macias finally attacks the district court's finding that an

enhancement was appropriate with respect to the kidnapping counts.

U.S.S.G. § 2A4.1(b)(3) provides for a two-level enhancement for use

of a dangerous weapon in kidnapping, abducting or unlawfully

restraining another. "'A dangerous weapon was used' means that a

firearm was discharged . . . or 'otherwise used.'" Id. at § 2A4.1,
25

comment. (n.2). "'Otherwise used' means . . . that the conduct did

not amount to the discharge of a firearm but was more than

brandishing, displaying or possessing a firearm or other dangerous

weapon.” Id. at § 1B1.1, comment. (n.1(g)).

The kidnapping counts were based on the abduction of Ricardo

Olivares and Humberto Adame. The government presented evidence

that Adame was hit with a gun and that Olivares had a gun put to

his back. It was not clear error for the district court to enhance

Macias's sentence on this basis.

C. Enhancement for Restraint of Victim

Macias and Gandara next complain that the district court erred

by applying a two-level enhancement to their sentences on the

conspiracy counts for the physical restraint of a victim. U.S.S.G.

§ 3A1.3 authorizes a two-level enhancement "[i]f a victim was

physically restrained in the course of the offense." The

defendants argue that the enhancement should not apply to them for

two reasons. First, the persons physically restrained were not

"victims," but coconspirators. Second, it would be impermissible

double counting to apply the enhancement for unlawful restraint and

also to sentence the defendants for kidnapping.

The first argument rests on an narrow construction of the term

"victim" in § 3A1.3. The defendants read "victim" to mean "victim

of the offense." We agree that Olivares and Adame were not

"victims" of the conspiracy offense, and if we read § 3A1.3 to mean

"victims of the offense," the enhancement could not apply. The
 

6 See, e.g., U.S.S.G. § 3A1.1 (two-level increase "[i]f the defendant

knew or should have known that a victim of the offense was unusually vulnerable")

(emphasis added); § 3A1.2, comment. (n.1) (three-level increase for official

victim applies "when specified individuals are victims of the offense") (emphasis

added).

26

plain language of § 3A1.3 refers only to "victims," however, and we

believe this means any "victim" of restraint. See United States v.

Vought, 69 F.3d 1498, 1502 (9th Cir. 1995) (interpreting § 3A1.3 in

same manner). We also note that the guidelines do frequently use

the term "victim of the offense," leading us to believe that the

Sentencing Commission may have deliberately chosen not to use that

phrase here.6 The court correctly applied the enhancement because

Olivares and Adame were "victims" of unlawful restraint.

The defendants further argue that application of the

enhancement to the drug conspiracy counts is impermissible double

counting because they also received sentences on the kidnapping

counts. They rely on United States v. Harris, 959 F.2d 246 (D.C.

Cir.), cert. denied, 113 S. Ct. 362, and cert. denied, 113 S. Ct.

362, and cert. denied, 113 S. Ct. 364 (1992), and on application

note 2 to U.S.S.G. § 3A1.3 to support their proposition.

This argument is without merit. Application note 2 states:

Do not apply this adjustment where the offense guideline

specifically incorporates this factor, or where the

unlawful restraint of the victim is an element of the

offense itself (e.g., this adjustment does not apply to

offenses covered by § 2A4.1 (Kidnapping, Abduction or

Unlawful Restraint)).

U.S.S.G. § 3A1.3, comment. (n.2). Unlawful restraint is not an

element of conspiracy to import or distribute drugs, the offense

for which the defendants were sentenced. Application note 2 is
 

7 This result is hardly unfair to the defendants. Because their

sentence on the kidnapping counts runs concurrently with their sentence on the

conspiracy counts, and is less than the sentence on the conspiracy counts, it is

only through the enhancement to the conspiracy counts that the defendants will

suffer any penalty for the kidnapping.

27

therefore inapplicable.

Nor does Harris support the defendants' argument. Harris held

that an enhancement for possession of a firearm during a drug

conspiracy did not apply to a defendant who received a separate

sentence for using or carrying a firearm during a drug conspiracy.

Harris, 959 F.2d at 266-67. The court relied upon U.S.S.G.

§ 2K2.4, comment. (n.2), which states:

Where a sentence under this section [for carrying or

using a firearm during a crime] is imposed in conjunction

with a sentence for an underlying offense [the drug

conspiracy], any specific offense characteristic for the

possession, use, or discharge of an explosive or firearm

. . . is not to be applied in respect to the guideline

for the underlying offense.

In contrast, the enhancement for victim restraint is prohibited

only where "unlawful restraint of the victim is an element of the

offense itself." U.S.S.G. § 3A1.3, comment. (n.2).

Double counting is impermissible only where the guidelines at

issue prohibit it. United States v. Box, 50 F.3d 345, 359 (5th

Cir.), cert. denied, 116 S. Ct. 309 (1995), and cert. denied, 64

U.S.L.W. 3466 (U.S. Jan. 8, 1996); United States v. Godfrey, 25

F.3d 263, 264 (5th Cir.), cert. denied, 115 S. Ct. 429 (1994). The

guidelines at issue in Harris did specifically forbid double

counting, but § 3A1.3 does not.7

D. Enhancement for Role in Conspiracy
28

Macias and Gandara contest the four-level enhancement on all

counts for their leadership roles in the offenses. See U.S.S.G.

§ 3B1.1(a). We review for clear error the finding that the

defendants were leaders or organizers of the conspiracy. United

States v. Ayala, 47 F.3d 688, 689-90 (5th Cir. 1995).

Both defendants argue that they could not have occupied

leadership roles in the conspiracy because others were above them

in the hierarchy of the conspiracy. Gandara maintains that he was

simply a bookkeeper until his brother Jose Luis died in January

1991. Macias argues that he was subordinate to both Jose Luis and

Rene Gandara.

More than one person can qualify as a leader or organizer of

a conspiracy. U.S.S.G. § 3B1.1, comment. (n.4). During the course

of the trial, the government introduced significant evidence that

both Macias and Gandara exercised extensive control over others in

the organization, directing them in the distribution of the

cocaine, the collection of the proceeds, and the kidnapping and

intimidation of others. This evidence was sufficient to support

the determination that they were organizers or leaders of the

conspiracy.

E. Refusal To Grant Downward Departure

Macias and Gandara argue that the district court incorrectly

believed that it lacked the authority to depart downward in

sentencing. See United States v. Stewart, 37 F.3d 1449, 1450 (10th

Cir. 1994); United States v. Isom, 992 F.2d 91, 93 (6th Cir. 1993).
29

At sentencing, they urged the district court to depart downward.

The district court declined to do so, stating:

As far as the departure request, and also the alternative

request that the Court recommend executive clemency

. . . . I don't anticipate doing either one of those

things. On the contrary, I anticipate imposing sentence

within the guideline range on all of the various counts.

In light of this statement, we conclude that the court did

recognize its authority to depart downward.

F. Imposition of Life Imprisonment on Counts Ten and Eleven

The district court imposed a life sentence on Macias with

respect to counts ten and eleven, although the maximum penalty for

those offenses is imprisonment for five years. 18 U.S.C. § 1952.

The government concedes error, so we vacate Macias's sentence with

respect to those counts and remand for resentencing for a period of

no more than five years.

G. The Sentencing of Gaytan as a Minor Participant

Gaytan asserts that the district court erred in finding that

he was a "minor participant" in the conspiracy under U.S.S.G.

§ 3B1.2(b) rather than a "minimal participant" under U.S.S.G.

§ 3B1.2(a). As a result, he received only a two-point reduction in

his base offense level rather than the four-point reduction

afforded a "minimal participant."

The district court's finding on this issue is a factual

determination reviewed only for clear error. United States v.

Valencia, 44 F.3d 269, 272 (5th Cir. 1995). The Sentencing
30

Guidelines indicate that the downward adjustment for minimal

participation "will be infrequent[]" and cites as appropriate

examples of minimal participants "someone who played no other role

in a very large drug smuggling operation than to offload part of a

single marihuana shipment" or "an individual [who] was recruited as

a courier for a single smuggling transaction involving a small

amount of drugs." U.S.S.G. § 3B1.2, comment. (n.2). In contrast,

"a minor participant means any participant who is less culpable

than most other participants, but whose role could not be described

as minimal." Id., comment. (n.3).

The district court's finding that Gaytan "len[t] his property

to be used for the storing of drugs" and "acted as a chauffeur" to

carry people to where drugs were stored is supported by the record.

Given these findings, it was not clear error for the court to

conclude that Gaytan was a minor participant rather than a minimal

participant.

Macias’s conviction on all counts except count six is

AFFIRMED. Macias’s sentence on all counts except counts ten and

eleven is AFFIRMED. Gandara’s conviction and sentence on all

counts except count four are AFFIRMED. Gaytan’s conviction and

sentence are AFFIRMED. Macias’s conviction on count six and

Gandara’s conviction on count four are REVERSED. Macias’s sentence

on counts ten and eleven is VACATED and REMANDED for resentencing.