UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-5006

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JUAN CALDERON,

Defendant - Appellant.

Appeal from the United States District Court for the District of

South Carolina, at Greenville. J. Michelle Childs, District 

Judge. (6:11-cr-00338-JMC-20)

Argued: December 12, 2013 Decided: February 7, 2014

Before WILKINSON, KING, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

ARGUED: Russell Warren Mace, III, THE MACE FIRM, Myrtle Beach, 

South Carolina, for Appellant. Andrew Burke Moorman, Sr., 

OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South 

Carolina, for Appellee. ON BRIEF: William N. Nettles, United 

States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, 

South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

After a four-day trial, a jury found Juan Calderon guilty 

of one count of conspiracy to possess with intent to distribute 

marijuana, cocaine, and cocaine base (also known as “crack 

cocaine”). Calderon now appeals on multiple grounds, alleging 

that the district court erred in several evidentiary rulings, in 

dismissing his motion for a judgment of acquittal, and in 

determining his sentence. For the following reasons, we affirm 

his conviction and sentence.

I.

A.

In 2004, Justin Jenkins began operating a drug trafficking 

organization (DTO) in South Carolina dedicated to distributing 

marijuana, cocaine, and crack cocaine. The DTO obtained 

marijuana and cocaine, cooked a portion of the cocaine into 

crack cocaine, and then sold the inventory through a network of 

local distributors within South Carolina. Members of the DTO 

included, among others, Kevin Montgomery and Thomas Renrick IV.

Queston Clement, a friend and co-conspirator of Jenkins who 

lived in California, introduced Jenkins to Cristian EscobedoMendoza in 2008. Shortly thereafter, Escobedo began shipping 

marijuana from California to South Carolina. Later that year, 

Escobedo introduced Jenkins to Calderon so that Calderon could 
3

continue supplying marijuana to the DTO while Escobedo served a 

prison sentence. Calderon proceeded to sell marijuana to 

Jenkins and Clement from September 2008 to January 2009. He 

delivered the drugs in a variety of ways, one of which was to 

give packages to Clement, who would then ship them cross country 

in a pickup truck provided by Jenkins in which Calderon had 

installed a hidden compartment. In order to pay for the drugs, 

Jenkins either provided cash payments or had his associates 

deposit money into various South Carolina bank accounts, 

including one under the name of Juan Calderon.

In December 2008, Jenkins inquired into whether or not 

Calderon could procure cocaine, to which Calderon replied 

affirmatively. Following that discussion, on January 8, 2009, 

Jenkins flew to California to meet with Calderon and purchase 

cocaine from him. After his arrival, Jenkins, Calderon, and a 

third man named Heliodoro Torrez-Sanchez drove to Fresno, where 

they stayed the night. The next morning Jenkins gave $23,000 to 

Sanchez for the purpose of buying the cocaine in a Wal-Mart 

parking lot while Jenkins and Calderon waited at a nearby Carls, 

Jr. restaurant.

The three conspirators were unaware that Sanchez was the 

subject of an investigation by the Fresno Police Department 

(FPD), and that the purported cocaine dealer was, in reality, an 

undercover FPD detective named Manuel Robles. FPD officers 
4

arrested Sanchez immediately after he displayed the money to 

Detective Robles. They recovered from Sanchez $23,000 and a set 

of car keys to a Chevy Malibu. Sanchez then directed them to 

the Carls, Jr. restaurant, where they found both Jenkins and 

Calderon. The officers ascertained that the car keys in 

Sanchez’s possession were to Calderon’s Malibu, and later that 

day placed both Jenkins and Calderon under arrest. The local 

district attorney declined to charge Jenkins and Calderon 

because of insufficient corroborating evidence and they were 

both released from custody. Jenkins left California, after 

which he and Calderon did not see each other again until 2011.

Escobedo, upon his release from prison in late 2010, began 

once again supplying marijuana and cocaine to the DTO. As 

before, payments for these narcotics occurred at least partly 

through Calderon’s bank account. In January 2011, Jenkins and 

Renrick traveled to Las Vegas to meet with Escobedo but were 

surprised to be met at the airport by both Escobedo and 

Calderon. Calderon drove Jenkins, Renrick, and Escobedo to 

their hotel and during the drive he declared that the “snitch” 

from the Fresno drug buy, Sanchez, had been killed.

Calderon was indicted by a federal grand jury later in 2011 

in connection with his sale of narcotics to the DTO. While 

jailed and awaiting trial, Calderon told fellow inmate Stephon 

Hopkins that Jenkins had “snitched” on him. J.A. 491. Calderon 
5

tried to convince Hopkins to have friends outside the jail 

frighten Jenkins’s family to keep him from testifying for the 

prosecution and stated that if Jenkins did testify, Calderon 

would have his associates “start killing . . . people.” J.A. 

495. Calderon also mentioned his plans to intimidate Jenkins to 

another inmate, Derrick Mosley, and then endeavored to hire 

Mosley to murder Jenkins. Calderon finally attempted to 

persuade Demauryo Moody, a third inmate, to sign a false 

statement undermining Jenkins’s credibility.

B.

The indictment charged Jenkins, Calderon, and the other coconspirators with multiple counts of criminal conduct arising 

from the operations of the DTO. Calderon was only charged under 

Count One: conspiracy to possess with intent to distribute five 

kilograms or more of cocaine, 280 grams or more of crack 

cocaine, and 1,000 kilograms or more of marijuana in violation 

of 21 U.S.C. § 841(a)(1) and (b)(1)(A), all in violation of 21 

U.S.C. § 846.

Prior to trial, the government notified Calderon that 

Jenkins, Renrick, Montgomery, Clement, Escobedo, Hopkins, 

Mosley, and Moody would all testify against Calderon on behalf 

of the prosecution. Calderon indicated his desire to inquire 

into the sentences faced by these cooperating witnesses, and the 

government subsequently moved in limine to prohibit him from 
6

eliciting specific numerical ranges on cross-examination on the 

grounds that it would unduly prejudice the jury. The district 

court granted the motion, and restricted Calderon to using 

“adjectives” instead of specific numbers when examining the 

cooperating witnesses about their sentencing ranges.

For his part, Calderon moved in limine to exclude evidence 

of the events surrounding his 2009 arrest in Fresno (the Fresno 

Incident) as improper character evidence under Federal Rule of 

Evidence (FRE) 404(b) and as unfairly prejudicial under FRE 403 

because it associated him with Jenkins, an admitted high level 

drug dealer. The district court found that evidence of the 

Fresno Incident was admissible because it was “intrinsic” to the 

conspiracy and denied Calderon’s motion accordingly.

The government indicated that it would call three officers 

of the FPD to testify to the events surrounding the Fresno 

Incident. In response, Calderon moved in limine to exclude any 

testimony by these officers about statements Sanchez made to 

them on the basis that the statements were hearsay and admitting 

them would violate Calderon’s rights under the Sixth Amendment’s 

Confrontation Clause. The district court denied Calderon’s 

motion, finding that Sanchez’s out-of-court statements were 

admissible because they were either being offered by the 

government to show the effect on the FDP’s investigation or were 

admissions by Sanchez as Calderon’s co-conspirator.
7

At the conclusion of the government’s case-in-chief, 

Calderon moved for a judgment of acquittal under Rule 29 of the 

Federal Rules of Criminal Procedure on the basis that the 

evidence was insufficient to sustain a conviction against him 

for conspiracy to distribute crack cocaine. The district court 

denied his motion and sent the charge to the jury. Following 

deliberations, the jury found Calderon guilty and attributed to 

him personally the liability for 1,000 kilograms or more of 

marijuana, five kilograms or more of cocaine, and 280 grams or 

more of cocaine base. Over Calderon’s objections, the district 

court calculated his range under the United States Sentencing 

Guidelines at between 292 and 365 months and sentenced him to 

292 months in prison. Calderon thereafter filed timely notice 

of this appeal.

II.

Calderon’s initial contention on appeal is that the 

district court violated his Sixth Amendment right to confront 

the witnesses against him when it prevented him from crossexamining the government’s cooperating witnesses on their 

numerical sentencing ranges and potential reductions. “We 

review for abuse of discretion a trial court’s limitations on a 

defendant’s cross-examination of a prosecution witness,” United 

States v. Ramos-Cruz, 667 F.3d 487, 500 (4th Cir. 2012) 
8

(internal quotation marks omitted), and review de novo the lower 

“court’s legal conclusions regarding constitutional claims,” 

United States v. Dinkins, 691 F.3d 358, 382 (4th Cir. 2012).

A.

The Confrontation Clause in the Sixth Amendment guarantees 

to every criminal defendant the right to cross-examine the 

witnesses against him, and thereby “expose to the jury the facts 

from which jurors . . . could appropriately draw inferences 

relating to [their] reliability.” Olden v. Kentucky, 488 U.S. 

227, 231 (1988) (internal quotation marks omitted). But this 

right is not absolute, because “trial judges possess wide 

latitude to impose reasonable limits on cross-examination, based 

on concerns including harassment, prejudice, confusion of the 

issues, repetition, or marginal relevance.” United States v. 

Turner, 198 F.3d 425, 429 (4th Cir. 1999).

In the context of cross-examining cooperating witnesses, 

the “critical question” is whether the defendant was given the 

opportunity to reveal the witness’s “subjective understanding of 

his bargain with the government.” United States v. Ambers, 85 

F.3d 173, 176 (4th Cir. 1996) (internal quotation marks 

omitted). Consequently, our inquiry on appeal focuses on 

“whether the jury possesse[d] sufficient evidence to enable it 

to make a discriminating appraisal of bias and incentives to lie 
9

on the part of the witnesses.” United States v. Cropp, 127 F.3d 

354, 359 (4th Cir. 1997) (internal quotation marks omitted).

In Cropp, we held that a district court did not abuse its 

discretion when it prohibited a defendant from inquiring into 

the contrasting numerical sentencing ranges that co-conspirators 

could have received absent cooperation and hoped to receive with 

cooperation. Id. at 358-59. We recognized that the credibility 

of cooperating witnesses in a criminal prosecution is “very 

relevant.” Id. at 358. But we also observed that a trial court 

might legitimately be concerned that, if the jury learned the 

severity of the sentences faced by a defendant’s coconspirators, it would conclude he faced the same punishment and 

“hesitate to find [him] guilty even if the evidence proved [his] 

guilt.” Id. We ruled that the threat of jury nullification 

trumped the minor marginal value added by permitting inquiry 

into specific sentencing ranges because, based on the testimony 

elicited on cross-examination, “the jury was already well aware 

that the witnesses were cooperators facing severe penalties if 

they did not provide the government with incriminating 

information.” Id. at 359.

In the case before us, the district court ruled under FRE 

403, which provides the trial court the discretion to exclude 

testimony when its probative value is “substantially outweighed 

by a danger of . . . unfair prejudice,” that Calderon was 
10

permitted to cross-examine each of the cooperating witnesses 

about their expected prison sentences using “adjectives” but not 

“numbers.” J.A. 68. Calderon maintains the numerical 

sentencing ranges and potential reductions for assisting the 

government would facilitate the jury’s ability to perform a 

“discriminating appraisal” of the incentives of the cooperating 

witnesses to be untruthful and the district court’s evidentiary 

ruling was thus in error. He also claims that Cropp does not 

apply to the cross-examinations of Hopkins, Mosley, and Moody 

because they were not Calderon’s co-conspirators. Even if 

Calderon is correct, we need not determine the precise scope or 

application of our holding in Cropp in this case. For assuming 

without deciding that any constitutional error occurred, it was 

unquestionably harmless.

B.

The “Constitution entitles a criminal defendant to a fair 

trial,” but it does not guarantee a “perfect one.” Delaware v. 

Van Arsdall, 475 U.S. 673, 681 (1986). Therefore, “otherwise 

valid conviction[s] should not be set aside” if we can conclude, 

“on the whole record, that the constitutional error was harmless 

beyond a reasonable doubt.” United States v. Abu Ali, 528 F.3d 

210, 256 (4th Cir. 2008) (internal quotation marks omitted).

As part of its case, the government introduced bank records 

and the testimony of the arresting officers involved in the 
11

Fresno Incident. The government’s case also depended in large 

part on the testimony of co-conspirators and jailhouse 

informants. In Turner, we found that the district court erred 

as a matter of law by excluding as not relevant testimony from a 

witness regarding her understanding of the penalties she would 

have faced had she not cooperated with the government. 198 F.3d 

at 430. We observed, though, that the witness admitted she 

faced a “pretty serious” penalty and that it was impossible to 

conclude that “a more specific response from [the witness] would 

have significantly changed the jury’s impression of her 

credibility.” Id. at 431. Thus, we held that even if the error 

was constitutional it was “harmless beyond a reasonable doubt” 

because the district court permitted a “substantial and thorough 

examination of [the witness’s] biases.” Id. at 430-31 & n.6.

The district court afforded Calderon a similar opportunity 

to conduct a vigorous inquiry into the cooperating witnesses’ 

subjective understandings of their expected prison sentences and 

he took full advantage of it. The trial court explained that it 

“did allow the defense to use adjectives, harsh penalty, serious 

penalties, without indicating a number.” J.A. 361. Calderon 

elicited separately from Clement, Escobedo, and Moody the fact 

that they were each facing the possibility of serving “a lot of 

time” incarcerated, J.A. 361-62 (Clement), 457 (Escobedo), 589 

(Moody), from Jenkins that he did not want to “spend a long time 
12

in jail,” J.A. 254, and from Mosley that he might receive a 

“significant amount of time” locked up, J.A. 566-67. 

Furthermore, despite the district court’s restriction, Renrick 

admitted on cross-examination that he was “looking at life” in

prison, J.A. 416, and Hopkins stated that he “just did two 

years” and had “five years and ten months” left on his sentence, 

J.A. 499. Finally, Calderon told the district court that he 

never intended to call into question the credibility of the 

eighth cooperating witness, Montgomery.

In addition to these admissions, the record also reveals 

that the district court permitted a great deal of testimony 

regarding each of the cooperating witnesses’ biases and 

credibility. All eight testified on direct examination that 

they had pleaded guilty to various crimes and hoped or expected 

to gain leniency on their sentences by testifying for the 

government. Calderon extensively impeached Jenkins, who was the 

government’s key cooperating witness, using his many past 

instances of untruthfulness. Calderon forced Clement to admit 

that he had lied to the police, cornered Renrick with his 

extensive criminal history, and revealed Escobedo’s omission of 

key details in his early debriefings with government agents. He 

also cross-examined Hopkins, Mosley, and Moody -- the three 

informants who had interacted with Calderon in jail -- on their 

many criminal convictions unrelated to the conspiracy in this 
13

case and compelled them each to admit they wanted to be released 

as soon as possible. Calderon meticulously impeached these 

witnesses and we think the possibility exceedingly small that 

the admission of their precise sentencing ranges and possible 

reductions would have “significantly changed the jury’s 

impression of [their] credibility.” Turner, 198 F.3d at 431.

Moreover, it cannot be said that the jury did not have 

some notion of the exact prison sentences Calderon’s coconspirators faced. When Calderon asked Renrick if he was 

“looking at a lot of time,” which is the exact same question 

Calderon posed to several of the other cooperating witnesses, 

Renrick testified that he faced a life sentence. J.A. 416. The 

district court also highlighted the incentives of cooperating 

witnesses to be untruthful when it carefully instructed the jury 

prior to its deliberations that when deciding what weight to 

give their testimony it could consider the fact they were 

cooperating with and depended on the government for possible 

sentence reductions. Considering the entire record, we are 

satisfied that the district court’s ruling did not deprive 

Calderon of a fair trial and that any violation of his Sixth 

Amendment rights was harmless beyond a reasonable doubt.
14

III.

Calderon’s second and third arguments on appeal rest on his 

claim that the government failed to offer evidence connecting 

him to the sale of crack cocaine. He first maintains that the 

district court erred in denying his motion for a judgment of 

acquittal because the government did not prove beyond a 

reasonable doubt that he was involved in the sale of crack 

cocaine. He argues alternatively that the district court erred 

in dismissing his motion because the government proved not one 

conspiracy to distribute marijuana, cocaine, and crack cocaine, 

but instead two separate conspiracies: one involving marijuana 

and cocaine and the other, to which he was not connected, 

involving crack cocaine. We discuss each of these arguments in 

turn.

“We review de novo the district court’s denial of a motion 

for judgment of acquittal pursuant to Rule 29 of the Federal 

Rules of Criminal Procedure.” United States v. Green, 599 F.3d 

360, 367 (4th Cir. 2010). Because this is a challenge to the 

sufficiency of the evidence, “[w]e will sustain the jury 

verdict” if we find that, “viewing the evidence in the light 

most favorable to the government, there is substantial evidence 

to support the conviction.” United States v. Hamilton, 699 F.3d 

356, 361 (4th Cir. 2012) (internal quotation marks omitted).
15

A.

Calderon asserts that the government, by charging him with 

conspiracy to distribute marijuana, cocaine, and cocaine base, 

must prove his connection with each of those substances beyond a 

reasonable doubt. It is true of course that the government 

bears the burden of proving to the jury all the elements of the 

charged offense beyond a reasonable doubt. United States v. 

Burgos, 94 F.3d 849, 858 (4th Cir. 1996) (en banc). The 

elements of the conspiracy charged in this case are that the 

defendant (1) had an agreement to distribute marijuana, cocaine, 

and cocaine base, (2) knew of the conspiracy, and (3) knowingly 

and voluntarily participated in that conspiracy. United States 

v. Allen, 716 F.3d 98, 103 (4th Cir. 2013). Calderon rests his 

argument on the “and” linking the drugs in the first element, 

but we are not persuaded that this conjunction shows that the 

government failed to meet its burden.

It is clearly established that “one may be a member of a 

conspiracy without knowing its full scope, or all its members, 

and without taking part in the full range of its activities or 

over the whole period of its existence.” Id. (internal 

quotation marks omitted). The focus of a conspiracy charge is 

not on the details of the operation, but rather whether there 

has been an “agreement to violate the law.” Id. (internal 

quotation marks omitted).
16

It is Calderon’s position that the government did not prove 

his involvement in the conspiracy because while it presented 

evidence linking him to the sale of marijuana and cocaine, it 

had no evidence connecting him to the sale of crack cocaine, 

which was cooked and distributed solely in South Carolina by the 

DTO. But the record viewed in the light most favorable to the 

government affords ample reason to reject his claim. Calderon’s 

assumption of Escobedo’s drug supply role when Escobedo went to

prison, repeated drug sales to Jenkins and Clement, modification 

of Jenkins’s pickup truck with a hidden compartment, receipt of

drug payments through his bank account, involvement in the 

attempted cocaine purchase in Fresno in 2009, declaration that 

Sanchez was a “snitch” and had been murdered, and attempts once 

in jail to intimidate and murder Jenkins altogether make for a 

strong case. Although the government did not offer evidence of 

Calderon’s personal involvement with crack cocaine, it is 

uncontested that members of the DTO produced and distributed 

crack cocaine. Calderon’s part in advancing the general 

conspiracy plainly suffices to sustain his conviction, and we 

decline to disturb the jury’s verdict in this regard.

B.

Calderon next claims that the government proved two 

conspiracies at trial, only one of which implicated him. 

Because he did not raise this argument in his Rule 29 motion 
17

below, we review it for “plain error” under Federal Rule of 

Criminal Procedure 52(b). United States v. Wallace, 515 F.3d 

327, 331-32 (4th Cir. 2008). Under this standard, the defendant 

bears the burden of demonstrating that (1) an error occurred, 

(2) it was plain, and (3) it affected his substantial rights. 

United States v. Rodriquez, 433 F.3d 411, 414-15 (4th Cir. 

2006). And even if he can show these three factors, “we have 

discretion whether to recognize the error, and should not do so 

unless the error seriously affects the fairness, integrity, or 

public reputation of judicial proceedings.” United States v. 

Dyess, 730 F.3d 354, 361 (4th Cir. 2013) (internal quotation 

marks omitted).

Calderon’s contention relies on the same general 

proposition discussed above with one exception: in this version 

of the argument, he maintains that the government’s failure to 

tie him to the crack cocaine shows that there were parallel but 

dichotomous conspiracies, only one of which involved him. We 

have recognized that a “single conspiracy exists, when the 

conspiracy had the same objective, it had the same goal, the 

same nature, the same geographic spread, the same results, and 

the same product.” United States v. Jeffers, 570 F.3d 557, 567 

(4th Cir. 2009) (internal quotation marks omitted). “The mere 

fact that more than one substance is charged . . . does not mean 
18

there are multiple conspiracies.” United States v. Barlin, 686 

F.2d 81, 89 (2d Cir. 1982).

The testimony and evidence adduced at trial reveals the 

coherence of the conspiracy at issue in this case. Calderon 

shared the same objective as his co-conspirators: to make money 

by shipping and selling prohibited substances in violation of 

federal drug laws. He provided narcotics to the same 

individuals who were producing crack cocaine. The conspirators 

used the same methods to transport the drugs and the same 

techniques to make and receive payments. They distributed those 

drugs within the same geographic area of South Carolina. And, 

until they were apprehended, they enjoyed the same fruits of 

their unlawful enterprise. We therefore hold that Calderon did 

not carry his burden of proving that the district court plainly 

erred in dismissing his Rule 29 motion.

IV.

In his fourth argument, Calderon maintains that the 

district court erred in permitting the government to offer 

evidence of his participation in the 2009 Fresno Incident 

because it was improper character evidence under Federal Rule of 

Evidence (FRE) 404(b) and unfairly prejudicial under FRE 403. 

We review a district court’s evidentiary rulings for abuse of 
19

discretion. United States v. Lespier, 725 F.3d 437, 447 (4th 

Cir. 2013).

FRE 404(b) prohibits “[e]vidence of a crime, wrong, or 

other act” if offered at trial “to prove a person’s character in 

order to show that on a particular occasion the person acted in 

accordance with the character.” However, not all purported 

character evidence falls under 404(b)’s proscription. A prior 

act that is “intrinsic to the crime charged, and is not admitted 

solely to demonstrate bad character, . . . is admissible.” 

United States v. Chin, 83 F.3d 83, 88 (4th Cir. 1996). “Other 

. . . acts are intrinsic when they are inextricably intertwined 

or both acts are part of a single criminal episode or the other 

acts were necessary preliminaries to the crime charged.” United 

States v. Wilson, 624 F.3d 640, 652 (4th Cir. 2010) (internal 

quotation marks omitted).

We are unconvinced by Calderon’s arguments that the Fresno 

Incident is not inextricably intertwined with his conspiracy 

charge. He maintains that the Fresno Incident is extrinsic 

because he was never indicted for a crime in connection with his 

arrest due to a lack of sufficient corroborating evidence. 

However, the fact that Calderon was never indicted is of no 

import here because the evidence surrounding the Fresno Incident 

was undoubtedly relevant to the narrative of the conspiracy and 

“uncharged acts may be admissible as direct evidence of the 
20

conspiracy itself.” United States v. Diaz, 176 F.3d 52, 79 (2d 

Cir. 1999) (internal quotation marks omitted). It is the 

elements of the crime, not every single piece of evidence, that 

the government must prove beyond a reasonable doubt.

The Fresno Incident was undeniably intrinsic to the charged 

conspiracy. Evidence adduced at trial showed that Jenkins and 

Calderon collaborated in the attempt to purchase cocaine from 

what turned out to be an undercover FPD detective. The attempt

to buy cocaine arose out of Jenkins’s and Calderon’s prior 

dealings buying and selling marijuana and demonstrated a 

continuation and deepening of their mutual plans to violate 

federal drug laws for personal gain. The district court did not 

abuse its discretion in permitting testimony about the Fresno 

Incident as direct evidence of the conspiracy.

Calderon next calls for this court to overturn the trial 

court’s ruling under FRE 403, which permits a district court to 

exclude evidence if its probative value is “substantially 

outweighed by a danger of . . . unfair prejudice.” The 

preceding discussion of the Fresno Incident’s intrinsic 

connection to the charged conspiracy demonstrates its probative 

value. But Calderon claims that the jury was prejudiced by the 

Fresno Incident because it associated him with Jenkins, the 

admitted leader of the DTO. The jury, he contends, may have 

desired to punish him for his involvement in the attempt to buy 
21

cocaine regardless of whether he was actually guilty of 

conspiracy. Any slight prejudice arising from these inferences 

is neither unfair, as FRE 403 requires, and did not 

substantially outweigh the probative value of the Fresno 

Incident evidence as a whole. We cannot conclude that the 

district court abused its direction in admitting it.

V.

Calderon next claims that the district court improperly 

permitted the FPD officers involved in the Fresno Incident to 

testify to statements made to them by Sanchez. Calderon alleges 

the statements were hearsay and their admission violated his 

right to confront the witnesses against him. We review the 

district court’s rulings involving hearsay for abuse of 

discretion, United States v. Obi, 239 F.3d 662, 667 (4th Cir. 

2001), and its Confrontation Clause rulings de novo, United 

States v. Abu Ali, 528 F.3d 210, 253 (4th Cir. 2008).

During the trial, the government called Officer Robles, 

Officer Robert Valdez, and Officer Dean Cardinale of the FPD to 

describe the events surrounding the Fresno Incident. The 

officers testified that, among other things, Sanchez told the 

FPD prior to his arrest that he was interested in purchasing 

three kilograms of cocaine on behalf of other individuals. 

Officer Robles also provided the following testimony:
22

Q: After Mr. Sanchez was arrested in the Wal-Mart 

parking lot, where did you and other officers respond?

A: To the Carls, Jr. restaurant.

Q: Why did you respond to the Carls, Jr. restaurant?

. . . .

A: We responded out there because we had information 

that a vehicle that was used was at that location with 

co-conspirators of the drug deal.

Q: Who gave you that information?

A: Mr. Sanchez did.

J.A. 143-44. Calderon maintains that Sanchez’s statements were 

inadmissible hearsay and violated his Confrontation Clause 

rights. Specifically, he argues that Sanchez’s pre-arrest 

statements were inadmissible because the government never showed 

that Sanchez was a co-conspirator and his post-arrest statement 

was inadmissible because it was offered by the government for 

its truth.

Sanchez’s statements prior to his arrest fall under the coconspirator provision in FRE 801(d)(2)(E). FRE 801(c) generally 

prohibits witnesses from relaying to the jury out-of-court 

statements if they are “offer[ed] in evidence to prove the truth 

of the matter asserted.” But statements are not hearsay if 

“made by the party’s coconspirator during and in furtherance of 

the conspiracy” and are “offered against [the] party.” Fed. R. 

Evid. 801(d)(2)(E). Further, co-conspirator statements are 
23

admissible if the government can prove three elements by a 

preponderance of the evidence: (1) a conspiracy existed in fact, 

(2) “the declarant and the defendant were members of the

conspiracy,” and (3) “the statement was made in the course of, 

and in furtherance, of the conspiracy.” United States v. 

Graham, 711 F.3d 445, 453 (4th Cir. 2013).

The government met its burden here. For the first element, 

there was the trial evidence already recounted proving the 

existence of a conspiracy. The second element was satisfied by 

the testimony of Jenkins, as well as Sanchez’s own statements to 

the FPD, that showed both Sanchez’s and Calderon’s involvement 

in the attempted cocaine purchase as co-conspirators. 

Additionally, the car keys recovered from Sanchez’s person after 

his arrest were to Calderon’s Chevy Malibu, connecting Calderon 

directly to Sanchez and the attempted purchase. Renrick also 

testified that Calderon confirmed Sanchez’s participation in the 

Fresno Incident when informing Jenkins that the “snitch” had 

been killed. And the third element was established because the 

statements at issue were clearly “in furtherance of” the crime 

in that they were made for the purpose of purchasing cocaine, a 

key objective of the conspiracy.

Sanchez’s statement after his arrest to Detective Robles 

directing the FPD to where Jenkins and Calderon were waiting was 

also admissible. A statement is not hearsay under FRE 801(c) if 
24

it is offered for a purpose other than the truth of the matter 

asserted, such as “the limited purpose of explaining why a 

government investigation was undertaken.” United States v. 

Love, 767 F.2d 1052, 1063 (4th Cir. 1985). Here, Sanchez’s 

statement post-arrest was offered to show why the officers went 

to the Carls, Jr. restaurant and consequently was elicited 

simply to show its effect on the FPD’s subsequent course of 

conduct. We thus find that the district court did not abuse its 

discretion when it admitted these statements.

Calderon’s constitutional claim is likewise wanting because 

the Confrontation Clause applies only to “testimonial” 

statements. Crawford v. Washington, 541 U.S. 36, 51 (2004). 

Statements made by co-conspirators in furtherance of a 

conspiracy are not testimonial in nature, even when made 

unwittingly to undercover government agents. See id. at 56. 

Likewise, statements offered for purposes other than to prove 

the truth of the matter asserted are not considered testimonial. 

Id. at 59 n.9. Therefore, Sanchez’s statements to the FPD are 

not testimonial and do not run afoul of the Confrontation 

Clause, and the district court did not err in admitting them.

VI.

Calderon’s sixth and final argument is that the district

court imposed on him an unreasonable sentence. We review a 
25

defendant’s sentence to confirm first that the district court 

committed “no substantial procedural error.” United States v. 

Worley, 685 F.3d 404, 409 (4th Cir. 2012). We apply a clear 

error standard to the district court’s factual findings and a de 

novo standard to its legal determinations. United States v. 

McManus, 734 F.3d 315, 317 (4th Cir. 2013). “If no procedural 

error exists, we review the substantive reasonableness of the 

sentence imposed for abuse of discretion.” United States v. 

Strieper, 666 F.3d 288, 292 (4th Cir. 2012) (internal quotation 

marks omitted).

A.

Calderon claims the district court miscalculated the amount 

of narcotics attributable to him and thereby erred in 

determining his sentencing range under the Sentencing 

Guidelines. First, he contends that because there was no 

evidence presented at trial tying him to the sale of crack 

cocaine he should not be held responsible at sentencing for the 

sale of 280 grams of crack cocaine because it was not 

“reasonably foreseeable to him.” United States v. Williams, 986 

F.2d 86, 90 (4th Cir. 1993). Calderon also argues that the 

district court incorrectly found that he was liable for “2 to 

300” pounds of marijuana, J.A. 849, when trial testimony 

established only his direct sale of “2 to 250” pounds, J.A. 349. 

Insofar as these drug amounts are not attributable to him, 
26

Calderon maintains that his Base Offense Level under the 

Guidelines should be lower and his sentence correspondingly 

reduced.

The district court, however, properly determined that it 

was bound by the jury’s verdict attributing to Calderon at least 

1,000 kilograms of marijuana, five kilograms of cocaine, and 280 

grams of cocaine base. A sentencing court cannot, under its own 

preponderance standard, upend the jury’s findings, particularly 

when those findings are expressed in no uncertain terms in a 

verdict. See United States v. Curry, 461 F.3d 452, 460-61 (4th 

Cir. 2006) (overturning a district court’s decision to vary 

downward from the Guidelines sentencing range because it 

“contradicted the weight of evidence and the verdict”). As a 

matter of law, the district court did not err in adopting the 

drug quantities found by the jury, and therefore it properly 

calculated his sentencing range under the Guidelines.

B.

We next consider whether the resulting sentence was 

substantively reasonable, using the presumption on appeal that a 

sentence under a “properly calculated Guidelines range” is 

reasonable. Strieper, 666 F.3d at 295 (internal quotation marks 

omitted). A defendant may overcome this presumption by showing 

“that the sentence is unreasonable when measured against” the 

statutory sentencing factors in 18 U.S.C. § 3553(a). United 
27

States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006) 

(internal quotation marks omitted).

Calderon advances two § 3553(a) factors as grounds for 

error: that the district court failed to consider his “history 

and characteristics,” § 3553(a)(1), and also ignored “the need 

to avoid unwarranted sentence disparities among defendants with 

similar records who have been found guilty of similar conduct,” 

§ 3553(a)(6). He notes that his criminal history was less 

substantial than some of his co-defendants who received lesser 

sentences. And he highlights the fact that some of his coconspirators, who pleaded to the same conduct for which he was 

found guilty, received sentences more lenient than his own.

The sentencing court, however, properly determined his 

criminal history category. The court below also found it 

reasonable that his sentence was higher than some of his codefendants because, unlike Calderon, they had accepted 

responsibility for their criminal conduct. Moreover, none of 

his co-conspirators had intimidated witnesses who were to 

testify against them. The Guidelines sentencing range for 

Calderon was between 292 and 365 months and the district court 

exercised its discretion to sentence him to the lower end of 

this range. We cannot conclude that Calderon’s sentence was 

substantively unreasonable.
28

VII.

For the foregoing reasons, we affirm the judgment of the 

district court.

AFFIRMED