## United States Court of Ap peals FOR TH E EIGHT H CIRC UIT

___________ No. 00-3037

___________ United States of America, * * Plaintiff - Appellee, * * v. * * Jose Alberto Mora-Hig uera, also known * as Mario Ruiz-Armenta, * * Defendant - Appe

llant. *

___________ Appeals from the United States No. 00-3254 District Court for the

__________ District of Minnesota. United States of America, * * Plaintiff - Appellee, * * v. * * Antonio Botello, al so known as * Antonio Benitez Bot

ello, *

* Defendant - Appe

llant. *

___________1 The Honorable Richard H. Kyle, United States District Judge for the District of Minnesota, preside

d over the trial of B otello and the sentenc ing of Bote l lo and Mora-Higuera. The Honorab le Donovan W. Frank, United States District J

udge for the District of Min

nesota, ruled on Bot

ello’s pretrial

motions. -2- Submitted: May

14, 2001 Filed: October 11,

2001

___________ Before LOKE

N, JOHN R. G

IBSON, and MU

RPHY, Circuit

Judges.

___________ JOHN R. GIBSON, Circuit Judge. Antonio Botello and Jose Mora -Higuera were

indi c ted on multiple c ounts, including conspiracy to dis

tribute methamphe

tamine. 21 U. S.C. §§ 841(a)( 1), 846 (1994). Botello went to trial and was convicted on the conspiracy charge

. He now appeals his conviction, argu ing that he was the subject of an illegal vehicle stop, that there was insufficient evidence to convict him, that the issue of drug quant

ity should have been submitted to

the jury, and that the district court 1 erred when it allowed the government

to comment

on his ability

to speak English and use leadi

ng questions in examining

its own witness. Mora-Higuera pled guilty and now appeals his sentence, arguingthat the district cou rt erred in counting his involvement in the distribution of twenty pounds of

methamphe

tamine and coca

ine as relevant conduct

in determining his sentence. See

U.S. Sentenci

ng Guidelines Manual

§ 1B1.3. We af

firm in both cases.
On December

20, 1999, law enforcem

ent officers arr

anged for an inform

ant to purchaseone pound of methamphetamine from Robert A licea. The transaction was to take place at the Oasis Market in Inver Grove Heights, Minnesota, where Alicea worked. The inf

ormant was en

route to the Inver G

rove Heights locati

on,-3-

accompanied by

Special Agent Bil

lings, when he rec eived a phone call fr omMoraHiguera, a known associate of Alicea. Mora-

Higuera advised the

informant to

go to the Oasis M ark et in South St. Paul instead. Before

arriving at the Sout

h St. Paul Oasis Market the inform ant received anothe

r call from M

ora-Higuera, t

elling the informant to hurry because Mora-Higuera had to leave.
A police surveillance

team at the So

uth St. Paul Oasis Market observed MoraHiguera and Botello drive up to

the store, enter it, and

leave a few m

inutes later, all before the informant a

nd Billings arrived a

t the scene. The informant then arrived, went inside, and gave the store manager, Jamie Joseph (who also happe ned to be Mora-Higu era’s gi rlfr iend), $4,000 in police drug buy mon ey in exchange f

or one pound of methamphetamine. Shortly after the informant left the area, Mora-Higuera and Botello returned in t

he same vehicl

e in which they h

ad earlier depar

ted. They went inside, were j oined by a third ind ividual, and droveaway. Their car was stopped shortly thereafter by

officers from

the South St. Paul Police Departm ent. As a result of the stop the police ide

ntified the driver a

s B otello, and one of the passengers as Mora-Higuera. All three of the car’s occupants provided the same residence address, 372 Lawson, St. Paul, Minnesota. The police then followed the car to the residence, where all three men

went inside. The

residence ultimately turned out to be owned by Botello.
On December 28 , 1999, a second controlled buy was attempte

d. The inform

ant met Alicea at the Oasis Market in Inver Grove. Botello and Mora-H iguer a then arrived in Botello’s car. Alicea got in the car with them and told the informan t to follow. Less than a mi

le from the

store, Alicea go

t out of the car and collected $2,000 in buy money from the informant. The informant drove off and Alicea, Botello, and Mora-Higuera

were arrested. A search of the car and passengers pro duced $5,000 cash: $3, 000 in the glove com partment and $2, 000 on Mora-Higuera. A search o f Botello’s residen ce produced $14,150 in ca sh, $2,450 of which was police buy money. The money

was found in v arious places throughout Botello’s residence:-4-

$2,000 in a check box, $1,100 i n a coat, $10,900 in a

pair of his shoes ($2, 300 o f which was buy money), and $150 in a child’s shirt (also buy m oney).
Botello’s motion to suppress evidence obtained a

s a result of the vehi

cle stop was denied, and a jur

y found him gui

lty of conspirac

y to dist rib ute methamphetamine. Mora-Higuera

pled guilty

to multiple counts. The district court denied his request fo

r a downward depar

ture, and sentence

d him to 292 mon

ths in prison.
I.
Bot ello appeals the distric t court’s denial of

his motion to supp

ress th e evidence obtained from t he vehicle stop of

December 20th. In

particular he argues that the st op vi olate d the F ourth Amendme nt and that t he sub sequ ent us e of hi s name and address, obtained as a

result of the stop, i

n obtaining a warra

nt to search his residence was improper. We will disturb t he district court’ s findings of fact only if we find them to be clearly erroneou s. United St ates v. McMurray , 34 F.3d 1405, 1409 (8th Cir. 1994 ). We review its legal conclu sions de novo. Id.
Under Terry v. O

hio , 392 U.S. 1 (1968 ), an investigative stop of a vehicle “does not violate the Fourth Amendment if the police have reasonable suspicion that the vehicle or its occupants are involved in criminal activity.” United States v. B ell , 183 F.3d 746, 749 (8th Ci r. 1999). There

is no requ irement that there be a traff ic violation. See Alabama v. W hite , 496 U.S. 325 (19 90) (upholding stopof vehicle in absence of traffic violat

ion). “In dec

iding whether to condu

ct a Terry stop, an officer may rely on information provid ed by other officers as well as any information known to the team of officers conducting the investigation.” United States v. Thomas , 249 F.3d 725, 728 (8th Cir. 2001).
“In evaluating the validi

ty of a stop . . . we must cons i der ‘the totality

of circumstance s--the whole picture.’” United States v. S okolow , 490 U.S. 1, 8 ( 1989)-5-

(quoting United States v. Cortez , 449 U.S. 411, 417 (1981)). Here, the officers knew that Mora-Higuera was associated with Alicea, had

called the inform

ant regarding the change in location of the drug deal, and was presen t at the new site im mediately before and after the buy took pl ace. Itwas therefore reasonable for them to suspect Mora-Higuera

of criminal a

ctivity and thus

legal for them to stop the vehicle in which he left the transaction site.
Once the vehicle was sto pped, the scope of the subse quent intrusion was minimal. See Terry , 392 U.S at 20 (pointing out that reasonableness inquiry includes exa mi ning both the justificat ion for the stop and the scope of the subsequen t intrusion). The police s imply asked th e car’s occupants for identi fication. See United States v. Quarles , 955 F.2d 498, 501 (8 th Cir. 1992)(treating identification of driver as part of justified vehicle stop); cf. United States v. Abokhai , 829 F.2d 666, 670 (8th Cir. 1987) (concluding that investigative stop

of pedestrian was m

inimally int

rusive where “the detention

and inquiry wer

e brief and did not involve questions beyon da request for id entification and an explanation of their presence”). The district court did not err in deny

ing Botello’s m

otion to suppress.
II.
Botello argues that there was insufficient evidence t o con vict him. Our standard of review is familiar:
We review the suf

ficiency of the

evidence to sustain a

conviction de novo. We must view

the evidence in the l

ight most favo

rab le to the government,

resolve conflicts

in the government’s favor, and accept all reasonable

inferences that supportthe verdic t. We uphold a conviction if substantial evidence

supports it. Substant

ial e vidence is that which suffices to convince a reason able jury of a

defendant’s guilt

beyond a reasonable

doubt, not that which rules out all reasonable hypotheses of innocence.-6-

UnitedStates v. Grim

aldo , 214 F.3d 967, 975 (8 th Cir. 2000)(citationsomitted), cert. denied , 121 S. Ct. 330 (2000) ; 121 S. Ct. 784 (2001 ); see Glasser v. Unite d States , 315 U.S. 60, 80 (1942).
“To convict a defendant

of conspiracy, t

he government m

ust prove beyond a reasonable

doubt that there was an agre ement to achieve some illegal purpose, that the defendant knew of t

he agreement,

and that the defenda

nt knowingly

became a part of the conspiracy.” United States v. Ivey , 915 F.2d 380, 383-84 (8th Cir. 1990 ). “A conspiracy

may be inferred from circ umstantial evidence,” Grimaldo , 214 F.3d at 975, and “[o]nce a

conspiracy has been established, only slight evidence is needed to link a defendant to the conspiracy,” United States v. Pena , 67 F.3d 153, 155 (8th Cir. 1995).
Botello argues that there w as i nsu fficient evidence

to conclude beyond

a rea sonabl e doubt that he knowingly participated in any

conspiracy to dis

tribute methamphetamine. We conclude that the evidence was more than sufficient. First, Botello drove Mora-Higuera to and fr om the dru g buy of December 20th and was present at the second control

led buy on December 28th. Second, two of his alleged co-conspirators testifiedthat he was a knowi ng participant in the d

rug ring, allowing his house to be used as pa rt of the conspirac

y and transportin

g money into Me

xico. Third, drug buy money was found in Botello’s residence, the majority

in the soles of shoes that belonged to h im. Cf. United States v. Barrett , 74 F.3d 167, 168 (8t h Cir. 1996) (holding that testimony of three alleged co-conspirators was enough to convict defendant of conspiracy e

ven where there w

as contradictory

testimony a

nd no physical evidence).-7- III.
Botello argues that the issue of drug quantity sh

ould h ave been submitted to the jury rather than decided by the d istr ict court. Botello

did not raise this issue b elow , and thus we review only for p lain errror. United States v. Butler , 238 F.3d 1001, 1005 (8th Cir. 2001).
The Supreme Cour

t has recently h

eld that “[o] ther than the fact of a prior conv iction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum

must be subm

itted to a jury.” Apprendi v. New Jersey , 530 U.S. 466, 490 (2000). Because Botello’s sentenc e did not exceed the statut

ory maxim

um for conspiracy to dis

tribute metham

phetamine indepe

ndent of drug

quantity, see 21 U.S.C. § 841(b)(1)(C) (1 994 & Supp. V 19 99), th ere is no error. United States v. Ortiz , 236 F.3d 420, 422 (8th Cir. 2001). A s long as the final sent

ence is less than the maximum

allowed by the jury verdict, neither the impact of the district court’s drug quantity determination

on application of

the Sentencing Guid

elines to defendant n

or its impact on ma ndator y m inimums unde r the statute im

plicates Apprendi

. United States v. Lewis , 236 F.3d 948, 950 (8th Ci r. 2001) (sentenci ng guidelines); United States v. Agu ayo-Delg ado , 220 F.3d 926, 933-3 4 (8th Cir. 2000), cert. denied , 121 S. Ct. 600 (2000) (mandatory minim ums).
The fact that drug quantity was specifically s et out in the indictm ent, and that the section of the

statute referre

d to in the indictmen

t, 21 U.S.C. § 841(b)(1)(A) ( 1994 & Supp. V 1999), sp ecifically m entions drug quantity

does not change the re sult.

In order to prevail in a

claim of fatal variance between the proof offered attrial and the wording of the indictment, [ B otello] must e stablish not only variance, but

also that the varian

ce affected his

substantial rights. The variance must

go to the heart of the

indictment wit

h the proof offered at trial failing to establish on e of the crucial elements necessary-8-

for prosecution

under sections

of the United State s Code charged in the indictment.
UnitedStates v. Anders on , 618 F.2d 487, 490 (8th Cir. 1980) (citations omitted). Since thesentence imposed here is less than the

statutory m

aximum all

owed by the jury’s verdict, drug qua ntity under § 841(b)(1)(A) remains a sentencing factor that may be determined

by the district court, not an elem ent that must be p

roved to the jury. Aguayo-Delga

do , 220 F.3d at 933. Thus, there is no fatal variance.

IV.
Botello challenges the prosecution’s conduct at trial. In his closing argum ent the prosecutor stated that “when Mr. B otello is driving drug de alers around on December

20th and again on December 28th, t here is nothing to prev ent him from knowing what’s going

on. He speaks Eng

lish.” Botello arg

ues these rema

rks about his ability to speak E

nglish v iolated hi s due process and equa l protection rights by effectively

penalizing him f

or us ing an inter preter at trial. Since Botello did not object at trial, we r eview f

or plain error. “

Under plain error

, the question for d etermination

is whether the ar

gument was so pr

ejudicial as to hav

e affecte d substantial rights resulting in a miscarriage of justice.” UnitedStates v. Segal , 649 F.2d 599, 604 n.10 (8th Cir. 1981) (internal quotation marks omitted).
Botello used an interpreter at trial and was entitled to d o so. See United States
v. Gallegos -Torres , 841 F.2d 240, 242 (8th Cir. 1988) (“A defendant who has difficulty with the language ha

s a right to an in terpreter.”). However, one of the issues before the

jury was wh

ether Botello

knowin gly part icipat ed in th e consp iracy. Itwas therefore proper

for the prosecution t

o argue that Botello understood the drugrelated conver sa tions he may

have been privy to between Mora-H iguera and the informant while he was driving Mora-Higuer a around. Cf. Portillo v. United States , 609 A.2d 687, 691 (D. C. 1992) (“G iven appellant’s de

nial that he understood-9-

English, the question whether he in fact unde

rstood and

spoke enough English to carry on the conversation w

hich the governm

ent asserted he

had had with Officer Thomas was an issue in the case.”).

V.
At trial the di strict court grante d the government’s

request for perm

ission to cross-examine

one of its own witness es, A lejand ro Mora. Botello argues this was error. Since B otello did not ob ject at trial, we review only for pl ain error. United States v. Cam

pa-Fabela , 210 F.3d 837, 840 (8th Cir. 2000).
While leading questions are generally not permitted during direct examination, they “may be used where ‘n ecessary to d evelop th e witness’ t e stimony.’” United States v. Stelivan , 125 F.3d 603, 608 (8 th Cir. 1997) (quotin g Fed. R. Evid. 611(c)). “When a party calls a

hostile witness, an adver se party, or a

witness identified with
an adverse party

, interrogation

may be by

leading questions.” Fed. R. Evid. 611(c). “The trial court is in the best position to evaluate th

e necessity

of leading questions during direct examination.” Stelivan , 125 F.3d at 608. Here, the prosecution requested perm issio n to use leading question s after its witness, Alejandro Mora , became eva

sive and unclear abo

ut the types of dr

ugs involved in the conspiracy . An exa minati on of the transcript reveals that afte r the government

received permission to cross, it asked at most eleven lea

ding questions, most of them foundati

o n al. Alejandro Mora was a relative of Botello, testifying as partof aplea agreement. The district court judge had heard A

lejandro Mora’ s guilty plea testimony just three days earlier. Cf. Stelivan , 125 F.3d at 608 ( “The district court judge had p reside d over Stelivan’s guilty plea proceeding and was therefore familiar with his manner of testifying.”). We conclude ther e was no plain error in the district court’s decision to perm it leading questions for

a brief period.-10- VI.
Jose Mora-Higuera r

ais es one a rgument on appeal. Mora-Higuera testified during his guilty plea hearing that he and his co-conspirators distri bute d approximately

twenty pounds of

methamphe

tamine and coca

ine during the

life of the conspi racy. The pre-sentenc ing report incor

porated this am

ount, triggering a ba

se offense level of thirty-six. Mora-Higuera then filed a position plead ing re questing
a downward departu

re, in part becau

se his estimate

of twenty pounds had been “little more than a rough estimate.” At the sentencing hearing he specifically stated he had no objections to the pr

e-sentence repor

t, instead repeat

ing his request for adownward departure. The dis trict c ourt ac knowle dged it s autho rity to d epart d ownward ly, but declined to do so. Mora-Higuera now challenges the inclusion of the twenty pounds as relevant conduct

under U.S. Sen

tencing Guidelines M

anual § 1B1.3.
Becausethe district court w as aware of its a

uthority to depar

t downwardly,

its decision not to depart is unappe alable. United States v. H awkins , 102 F.3d 973, 976 (8thCir. 1996). Furt

hermore, be

cause Mora-Higue

ra did not object to t

he inclusion of the twenty pounds

in the pre-sentenci

ng report, and in fact affirmatively declined to do so, he waived the issue. United States v. E lliott , 89 F.3d 1360, 1367 (8th Cir. 1996). Were we to re

ach the issue, we would

not conclude that the i

nclusion of the twenty pounds was clearly erroneo us. The twenty poun d amount was bas ed on the testimony of Mora-Higuera

himse lf. Cf

. United States v. S

honubi , 103 F.3d 1085, 1089 (2d Cir. 1997)

(pointing out that even under the Second Cir cuit’s more

rigorous “specific evidence” standard, a defe ndant’s own adm

ission is sufficient proof

of drug quantity for the purposes of

sentencing). This admission i s sufficient, par ticularly in light of the fact that the government produced evidence in

the trial o f Mora-Higu era’s co-conspirator, presid ed over by the sa me judge, that th e consp iracy act ually involv ed over 100 pounds.-11- VII.
For the foregoing reaso

ns, we affirm Botell o’s convic tion and M ora-Higuer a’s sentence.
A true co py.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.