*Of the District of Massachusetts, sitting by designation.

 United States Court of Appeals

For the First Circuit

No. 00-1711

UNITED STATES OF AMERICA,

Appellee,

v.

PEDRO DE JESUS MATEO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. George A. O'Toole, Jr.,* U.S. District Judge]

Before

 Boudin, Chief Judge,

Lipez and Howard, Circuit Judges.

Raymond Sanchez Maceira for appellant.

Thomas F. Klumper, Assistant United States Attorney, with whom

H.S. Garcia, United States Attorney, and Sonia I. Torres-Pabón,

Assistant United States Attorney, were on brief, for appellee.

June 24, 2004
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HOWARD, Circuit Judge. Pedro De Jesus Mateo appeals his

conviction for conspiring to possess narcotics with the intent to

distribute and the resulting sentence imposed. We affirm the

judgment.

I. Background

In the late 1980's, De Jesus befriended Orlando Rosa

Rodriguez in Ponce, Puerto Rico. In the beginning of 1990, Rosa

began a drug trafficking organization operating in the Belgica Ward

of Ponce. During the fall of 1990, Rosa expanded the enterprise

and moved it to the Portugues Public Housing Project in Ponce. By

the end of 1990, De Jesus was working for Rosa, processing heroin

and cocaine and helping procure additional drug supply. In early

1992, Rosa gave De Jesus control of a marijuana "drug point" in the

Portugues Housing Project. 

In 1995, Rosa was incarcerated for drug offenses but

continued to operate the enterprise from prison. Rosa left two

associates in charge of the operation. These associates were

delinquent in collecting money, so Rosa replaced them with his

sister and De Jesus. In this capacity, De Jesus collected

delinquent debts, processed heroin, and operated the heroin "drug

point." For his services, Rosa paid De Jesus $200 per week. De

Jesus eventually withdrew from the organization in the fall of

1997. 
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On these facts, a jury convicted De Jesus of

participating in a conspiracy to possess cocaine and heroin with

the intent to distribute operating in Ponce from 1990 through the

fall of 1997. See 21 U.S.C. §§ 841(a)(1) & 846. The district

court sentenced De Jesus to life in prison because this was his

third conviction for a drug-related felony. See 21 U.S.C. §

841(b)(1)(A).

II. Discussion

De Jesus raises two issues on appeal. First, he claims

that the district court erred by declining to order a mistrial

after Rosa provided testimony implicating him in criminal acts that

were beyond the scope of the conspiracy. Second, he contends that

the district court erroneously relied on his two prior drug

convictions to impose an enhanced sentence under 21 U.S.C. §

841(b)(1)(A) because the prior convictions comprised conduct that

was part of the instant conspiracy offense.

A. Mistrial

De Jesus identifies three points in Rosa's testimony

where Rosa improperly implicated him in criminal conduct that was

outside of the conspiracy. First, Rosa testified about his own

involvement in a 1990 murder. Defense counsel objected that Rosa

implicated De Jesus in the murder by gesturing toward De Jesus when

discussing the crime. The district court responded by instructing

Rosa to confine his answers to his own criminal conduct, but
1 There is some confusion in the record concerning whether this

statement was made by Rosa or the prosecutor. De Jesus claims that

the statement was made by Rosa and there is substantial record

support for that view. We therefore have considered the claim in

this light. But even if the prosecutor had made the statement, our

conclusion would remain the same because, as discussed in the text,

the district court's curative instructions sufficiently remedied

any prejudice. See infra at 6-7. 

2 The court ruled that this testimony concerned an act that

was within the scope of the conspiracy and would normally be

admissible. But, because the government had filed a pretrial

notice representing that this evidence would not be introduced in

its case-in-chief, the court struck the testimony.

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defense counsel, not satisfied, moved for a mistrial. The court

denied the motion, noting that it "did not see a gesture as

dramatic as the one described," and that it was not as "clear or

unambiguous [as defense counsel] may have suggested." 

Second, Rosa testified that De Jesus worked packaging

drugs. Rosa then stated, "In 1991 he was in prison."1 Defense

counsel objected, and the district court struck the comment.

Finally, Rosa testified about his last drug transaction with De

Jesus. Rosa stated that he had asked De Jesus to help him obtain

drugs while he (Rosa) was in prison. Defense counsel objected to

this testimony because this act was outside the scope of the

conspiracy and requested a mistrial. The court again struck the

testimony but declined to order a mistrial.2 

De Jesus contends that, individually and combined, the

effect of this improper testimony was so prejudicial that a

mistrial was warranted. We review the district court's decision to
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deny a mistrial motion for an abuse of discretion. See United

States v. Bradshaw, 281 F.3d 278, 284 (1st Cir. 2002). A mistrial

is a last resort that is only ordered if the demonstrated harm

cannot be cured by less drastic means. See United States v.

Rullan-Rivera, 60 F.3d 16, 18 (1st Cir. 1995). 

De Jesus focuses substantial attention on Rosa's

"gesture" supposedly implicating him in a 1990 murder. Testimony

clearly implicating De Jesus in a murder outside of the charged

conspiracy could be thought to have caused substantial prejudice.

The difficulty with this argument, however, is that the district

court found that Rosa's gesture was neither as "dramatic" nor

"unambiguous" as De Jesus suggests. "The trial court has a

superior point of vantage" and "it is only rarely--and in extremely

compelling circumstances--that an appellate panel, informed by a

cold record, will venture to reverse a trial judge's on-the-spot

decision." United States v. Freeman, 208 F.3d 332, 339 (1st Cir.

2000) (internal citations and quotations omitted). Neither De

Jesus's brief nor our own review of the record provides a basis for

disregarding the district court's view of events and its conclusion

that De Jesus was not substantially prejudiced by the incident.

See United States v. Pierro, 32 F.3d 611, 617 (1st Cir. 1994)

("[B]attles over the need for a mistrial most often will be won or

lost in the district court").
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For Rosa's two inadmissible comments, the district court

provided prompt and forceful curative instructions. Immediately

after Rosa's comment, "He was in prison in 1991," the court told

the jury "to disregard the answer." Similarly, just after Rosa

described De Jesus arranging to bring him drugs in prison, the

court instructed, "Jurors, the witness's evidence from the last few

questions concerning what he described as a transaction when he was

in prison, all that evidence is stricken, and you will disregard it

in your decision in this case." Also as part of its final

instructions, the district court reminded the jurors to disregard

stricken testimony:

There was at least one and maybe several

occasions on which an answer or a portion

of an answer may have been given by a

witness, and it was excluded from the

evidence. You may recall that I did

that. Evidence that I ordered to be

stricken, you are to disregard and put

out of your minds. It is not part of

your consideration and may not be the

subject of your discussion in the jury

room. 

Within wide margins, the prejudice caused by improper

testimony can be addressed by providing appropriate curative

instructions similar to those supplied here. See United States v.

Sepúlveda, 15 F.3d 1161, 1184 (1st Cir. 1993). This rule is a

corollary of the presumption that "juries follow instructions"

unless there is "a sufficient showing that the offending testimony

reasonably could not have been ignored and that serious prejudice
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likely resulted." United States v. Gonzalez-Vazquez, 219 F.3d 37,

48 (1st Cir. 2000) (quotations omitted). De Jesus has not made this

showing. The statement, "He was in prison," provided the jury with

little detail, and it is not altogether clear that it referred to De

Jesus, as Rosa blurted out the statement when there was no question

pending. 

 Further, Rosa's testimony concerning the later transaction

in which De Jesus brought drugs to Rosa in prison, also excluded by

the court with a curative instruction, constituted additional

evidence concerning De Jesus's work in furthering the conspiracy.

See Bradshaw, 281 F.3d at 285 (affirming denial of motion for

mistrial where inadmissible evidence was largely cumulative).

Finally, the strong proof of De Jesus's guilt militates

against disturbing the district court's decision against declaring

a mistrial. See United States v. DiSanto, 86 F.3d 1238, 1249 (1st

Cir. 1996) (affirming denial of mistrial motion because evidence was

strong); United States v. Belardo-Quiñones, 71 F.3d 941, 945 (1st

Cir. 1995) (similar); United States v. Bello-Pérez, 977 F.2d 664,

672 (1st Cir. 1992) (similar). The government presented testimony

from Rosa and his sister chronicling De Jesus's involvement in the

conspiracy, an audio tape recording of De Jesus arranging a drug

transaction and discussing a debt that one of the co-conspirators

owed Rosa, and another tape recording of two co-conspirators

discussing that De Jesus was no longer going to work for Rosa. De
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Jesus's entire case consisted of calling Rosa to question his

credibility. In short, this was not a close case. For these

reasons, the district court's denial of De Jesus's motion for a

mistrial was not an abuse of discretion. 

B. Sentencing

The district court sentenced De Jesus to a life sentence

pursuant to the sentencing enhancement provisions of 21 U.S.C. §

841(b)(1)(A). In relevant part, this section provides that if a

person is convicted of conspiring to possess in excess of a certain

amount of controlled substance with the intent to distribute "after

two or more prior convictions for felony drug offenses have become

final, such person shall be sentenced to a mandatory term of life

imprisonment without release." 21 U.S.C. § 841(b)(1)(A). De Jesus

was convicted in Puerto Rico Superior Court of possessing cocaine in

January 1991 and of possessing marijuana with the intent to

distribute in November 1991. Both crimes occurred in Ponce and

there is no dispute that they constitute felonies under Puerto Rico

law. 

De Jesus claims that these prior convictions should not

count for purposes of applying the sentencing enhancement under 21

U.S.C. § 841(b)(1)(A). He argues that, because the prior

convictions occurred during the time period and in the geographic

location of the conspiracy charged in this case, the prior

convictions represent "the same criminal conduct" as the conspiracy
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conviction and consequently "should not count toward the

enhancement." 

De Jesus makes this argument by asserting that, under the

Sentencing Guidelines, all three convictions (the two prior

convictions and the conspiracy conviction) would be grouped togther

as related cases pursuant to U.S.S.G. § 4A1.2 and therefore should

not count as separate convictions for purposes of applying 21 U.S.C.

§ 841(b)(1)(A). This argument misconstrues the purpose of the

Sentencing Guidelines. The Guidelines focus on the length and

nature of the sentence, not the fact of conviction. Whether prior

convictions count for purposes of 21 U.S.C. § 841(b)(1)(A) is a

matter of statutory construction, not Guideline application. See

United States v. Blackwood, 913 F.2d 139, 145 n.4 (4th Cir. 1990);

see also United States v. Maxey, 989 F.2d 303, 307-08 (9th Cir.

1993) (rejecting similar argument). Indeed, the Guidelines

specifically provide that statutorily required minimum sentences

must be applied in lieu of the Guideline range if the statutory

minimum is longer. See U.S.S.G. § 5G1.1. 

But that the Guidelines do not provide the analytical

vehicle for resolving De Jesus's argument does not end the matter.

"Prior felony drug convictions will be counted separately for

purposes of 21 U.S.C. § 841(b) only when they represent distinct

criminal episodes." United States v. Martinez-Medina, 279 F.3d 105,

123 (1st Cir. 2002) (citing United States v. Gillies, 851 F.2d 492,
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497 (1st Cir. 1988)). De Jesus contends that his prior convictions

do not represent "distinct criminal episodes" because they are part

and parcel of his participation in the conspiracy. Circuit

precedent forecloses this argument. See Martinez-Medina, 279 F.3d

at 123.

In Martinez-Medina, we stated that:

An ongoing course of criminal conduct such

as narcotics trafficking may involve many

such criminal episodes, each a discrete

occurrence. The fact that all are

related, part of a series, or part of a

continuous course of criminal dealing,

does not necessarily render them a

"single" criminal episode, particularly

where the episodes occur over time. To so

hold would insulate the very career

criminals the statute is designed to

reach--those continuously engaged in

criminal conduct.

Id. (quoting Maxey, 989 F.2d at 307). Consequently, we held that

the district court properly imposed a life sentence under 21 U.S.C.

§ 841(b)(1)(A) because the defendant's prior convictions, although

part of one drug trafficking conspiracy, stemmed from several

transactions, occurring several months apart. See id. So too here.

De Jesus's prior convictions were for separate drug transactions

that occurred eleven months apart. See id.; see also United States

v. Gray, 152 F.3d 816, 821-22 (8th Cir. 1998) (stating that drug

transactions occurring one-day apart which required separate

planning and execution constitute distinct criminal episodes under

21 U.S.C. § 841(b)(1)(A)); United States v. Griffin, 109 F.3d 706,

708 (11th Cir. 1997) ("Two drug transactions occurring on different
3De Jesus attempts to distinguish Martinez-Medina on the basis

that the government presented evidence of marijuana trafficking in

the instant case which was the same conduct underlying De Jesus's

prior marijuana conviction. As explained in the text, MartinezMedina holds that each conviction arising from a distinct criminal

episode counts as a separate conviction for purposes of 21 U.S.C.

§ 841(b)(1)(A) even though this same conduct is within the scope of

the conspiracy. See supra at 10. The dispositive point here is

not that evidence of De Jesus distributing marijuana was presented

at his conspiracy trial but rather that his prior cocaine

conviction was a separate criminal episode from his prior marijuana

conviction even though the conduct underlying both convictions was

arguably part of the same conspiracy. As for any claim that the

conspiracy comprised the same episode as either of the two prior

convictions, the short answer is that the conviction in this case

was for conspiring to distribute heroin and cocaine, an episode

continuing well beyond either of the prior convictions for discrete

episodes of possession and distribution. 

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days--albeit within the same week and in the same general location--

constitute separate unrelated offenses for purposes of sentencing

under 21 U.S.C. § 841(b)(1)(A)."). Accordingly, the district court

correctly counted them as prior convictions for purposes of 21

U.S.C. § 841(b)(1)(A).3

Affirmed.