1 District Judge of the Western District of Louisiana,

sitting by designation.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 91-2260

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HUMBERTO HINOJOSA and CARLOS LERMA,

Defendants-Appellants.

_________________________________________________________________

Appeals from the United States District Court

for the Southern District of Texas

_________________________________________________________________ (April 3, 1992)

Before WILLIAMS and WIENER, Circuit Judges, and LITTL E, 1 District

Judge

JERRE S. WILLIAMS, Circuit Judge:

Appellants Humbert o Hinojosa and Carlos Lerma were both

convicted of numerous drug related offenses. Both appellants

insist the evidence was insufficient to support their convictions.

They also claimthe trial judge erred in calculating their

sentences. Moreover, Hinojosa individually asserts he should be

gra nted a new trial due to improprieties in the selection of the

jury. We find appellants' arguments unpersuasive and affirm the

convictions and sentences.2 I. FACTS

Evidence was presented at trial that Carlos Lerma operated

numerous businesses in the Houston area as a cover for an elaborate

drug operation. One of Lerma's businesses was an auto paint and

body shop. The body shop was run by Humberto Hinojosa who assisted

Lerma in stripping down cars brough t from Mexico and removing

packages of marihuana concealed in the cars. The packages were

then boxed and distributed. Much of the drugs was transported to

Atlanta, Georgia.

In November 1985, Marion Meadows introduced Steven Miller to

Hinojosa. Miller agreed to transport marihuana in his car from

Texas to Georgia. Hinojosa supplied approximately 800 pounds of

marihuana for the first trip to Atlanta.

Meadows and Miller followed Hinojosa's truck as they drove to

Atlanta in Miller's car. Upon arriving in Atlanta, Hinojosa told

Miller and Meadows to check into a particular hotel. At the hotel,

a party unknown to Miller took Miller's car and Hinojosa's truck

and unloaded the marihuana from the vehicles. Later, money was

delivered to the hotel. Miller was instructed to count the money

and Hinojosa told him he could keep all the one and five dollar

bills. The money totalled approximately $150,000. Miller and

Meadows returned to Texas with the money, and they delivered it to

Lerma at his auto body shop.

Through January 1986, Mill er made approximately five more

trips to Atlanta, taking between 300 and 500 pounds of marihuana

each time and returning with the money. The procedures sometimes3

varied, but the trips always involved the same people. After

January of 1986, Miller and Meadows made two or three more trips,

but they stopped after Meadows suspected he was under

investigation. Meadows had been stopped at the Atlanta airport,

and a Drug Enforcement Administration agent discovered $169,000 and

six marihuana cigarettes in his duffle bag. After Meadows returned

to Houston, he met with Lerma and Hinojosa to discuss the

government's seizure of the money. Because of the incident at the

airport, Miller and Meadows then stopped transporting marihuana for

Hinojosa and Lerma.

In the summer of 1987, Miller again bega n driving marihuana

from Houston to Atlanta because he needed the work. During the

summer, Miller made four or five trips. On each trip he hauled

approximately 300 p ounds of marihuana, and on one trip, he

transported six kilos of cocaine. Hinojosa accompanied Miller on

two of the trips. Miller was arrested in Orange County, Texas for

possession of less than an ounce of marihuana in July 1987. He

then moved to Atlanta and cea sed transporting drugs for Hinojosa

and Lerma. He did, however, continue his association with the

defendants. In fact, Miller purchased cocaine and marihuana from

Hinojosa for the purpose of resale.

On March 27, 1988, Miller was again arrested. The charge was

possession of marihuana and LSD. Following his arrest, Miller

agreed to cooperate with the Georgi a police. He told them that

Hinojosa was his source and that Hinojosa would be coming to

Atlanta. Upon Hinojosa's arrival in Atlanta, Miller was4

temporarily released from jail so he could meet Hinojosa to receive

a kilo of cocaine. Miller wore a "body-bug" during the

transac tion. After the transaction, Miller was returned to

custody, and Hinojosa was arrested in his motel room.

Evidence was introduced to show that throughout the same time

period, Lerma was involved in numerous other drug transactions. On

two occasions in the summer of 1987, Lerma and Roger Solis

transported between 500 and 900 pounds of marihuana from Laredo to

Houston. Solis also drove two separate loads of marihuana to South

Carolina. On the first trip to South Carolina, the marihuana was

loaded at Lerma's house, and Solis drove in tandem with Ricardo

Montalvan (a/k/a Valentin). On the second trip, Solis was stopped

en route with the load and was arrested.

Testimony at trial indicated that one of Lerma's cocaine

sources was his girlfriend, Jacquelyn Cruzco. In May 1988,

Cruzco's house was searched pursuant to a valid search warrant.

The police discovered $147,000 in cash, scales, drug paraphernalia,

and marihuana at Cruzco's house. Lerma's briefcase was also

searched, and the police found drug ledgers and a business card for

an attorney named Lawrence Rothenberg. On the back of the card was

a notation indicating that Lerma had paid $25,000 in legal expenses

for Hinojosa. The briefcase also contained a memorandum regarding

the events surrounding Hinojosa's arrest.

In August 1988, as a result both of information supplied by

Miller an d the arrest of Hinojosa, law enforcement officials in

Houston obtained court-authorized wiretaps on several telephone5

numbers utilized by Lerma, and they also conducted surveillance on

his activities. Numerous incriminating conversations between

Lerma, Lionel Sosa, Lee Hernandez, Solis , Montalvan, Vincente

Rivera, and Cruzco were recorded. These conversations involved

drug transact ions and delivery of money. Approximately nine

conversations were recorded between Lerma, Lee Hernandez, and

Lionel Sosa, regarding money Hernand ez allegedly owed Lerma for

cocaine. Sosa testified at trial that Lerma recruited him to sell

cocaine. Sosa agreed to assist Lerma by directing cocaine

customers to him. In August 1988, Sosa put Lerma in touch with Lee

Hernandez for the purpose of conducting cocaine and marihuana

transactions.

In a separate conversation, Lerma told Montalvan that Lerma

and two others had purchased 10,000-12,000 pounds of marihuana, and

that Lerma intended to set aside 2000-3000 pounds for Montalvan.

Another series of calls involved a 1000-pound marihuana transaction

between Lerma and Montalvan. Lerma had purchased the marihuana

from Felix Castillo. He had shown samples of the marihuana to

Montalvan, but Montalvan rejected the marihuana. Lerma was en

route to return the marihuana to Castillo when he was arrested by

surveillance agents. A search of his car produced two samples of

marihuana totalling forty pounds, a gun, and drug ledgers.

Hinojosa was indicted and convicted of conspiracy to possess

with intent to distribute in excess of 1000 kilograms of marihuana

and in excess of five kilograms of cocaine i n violation of 21

U

. S.C. § 846 and two counts of interstate travel in aid of6

racketeering in violation of 18 U .S.C. §§ 2, 1952(a)(1), and

1953(a)(3). He was sentenced to a total prison term of 235 months,

followed by five years supervised release. Lerma was indicted and

convicted of 51 counts, involving: conspiracy to possess with

intent to distribute in excess of 1000 kilograms of marihuana and

in excess of five kilograms of cocaine in vio lation of 21 U.S.C.

§ 846; engaging in a continuing criminal enterprise in violation of

21 U.S.C. § 848; interstate travel in aid of racketeering in

violation of 18 U.S.C. §§ 2 and 1952(a)(1); possession with intent

to distribute in excess of 100 kilograms of marihuana in violation

of 21 U.S.C. § 841(a)(1); possession with intent to distribute

marihuana in violation of 21 U.S.C. § 841(a)(1); use of a telephone

to facilitate the commission of a felony in violation of 21 U.S.C.

§§ 846 and 843(b); carrying a firearm during a drug trafficking

crime, in violation of 21 U.S.C. § 924(c)(1); conducting financial

transactions in violation of 18 U.S.C. § 1956(a)(1)(B)(i); engaging

in monetary transactions in violation of 18 U.S.C. § 1957; and

investing illegal proceeds in violation of 21 U.S.C. § 854. He was

s entenced to a total prison term of 300 months, followed by five

years supervised release. Both appellants filed timely appeals.

II. SUFFICIENCY OF THE EVIDENCE

Both Lerma and Hinojosa challenge the sufficiency of the

evidence to support a portion of their conviction. We address each

appellant's claim individ ually. In reviewing the sufficiency of

the evidence, this Court views all evidence in the light most2 "(a) Whoever travels in interstate or foreign commerce or

uses the mail or any facility in interstate or foreign commerce,

with intent to--

(1) distribute the proceeds of any unlawful activity; or

(2) commit any crime of violence to further any unlawful

activity; or

(3) otherwise promote, manage, establish, carry on, or

7 favorable to the government with all reasonable inferences and

credibility choices to be made in support of the jury's verdict.

The evidence is sufficient if a rational trier of fact could have

found the essentia l elements of the crime beyond a reasonable

doubt. U nited States v. Anchondo-Sandoval , 910 F.2d 1234, 1236

(5th Cir. 1990); United States v. Medina

, 887 F.2d 528, 530 (5th

Cir. 1989).

Both Hinojosa and Lerma have a diff icult burden to overcome

because they did not object to the sufficiency of the evidence at

the trial level. Without the objection, we extend even greater

weight than is usual as to the jury's finding. A review of

Hinojosa and Lerma's sufficiency claims is "limited to the

determination of whether there wa s a manifest miscarriage of

justice. Such a miscarriage would exist only if the record is

devoid of evidence pointing to guilt." U nited States v. RoblesPantoja

, 887 F.2d 125 0, 1254 (5th Cir. 1989)(citations omitted).

Hinojosa challenges the sufficiency o f the evidence with

respect to his conviction for traveling and aiding and abetting

travel in int erstate commerce with the intent to distribute the

proceeds of unlawful activity in violation of 18 U.S.C.

§ 1952(a)(1) and (2). 2 The essential elements of a violation underfacilitate the promotion, management, establishment, or

carrying on, of any unlawful activity,

and thereafter performs or attempts to perform any of the acts

specified in subparagraphs (1), (2), and (3), shall be fined not

more than $10,000 or imprisoned for not more than five years, or

both." 18 U.S.C. § 1952 (1984).

8 Section 1952(a) are: (1) travel in interstate or foreign commerce;

(2) with the specific intent to distribute the proceeds of an

unlawful activity; and (3) knowing and willful commission of an act

in furtherance of that intent. U nite d States v. Logan , 949 F.2d

1370, 1380-81 (5th Cir. 1991), petition for cert. filed

, (U.S. Mar.

2, 1992) (No.91-7478). To convict Hinojosa for aiding and abetting

an offense against the United States, the government must prove he

was: (1) associated with the criminal venture; (2) participated in

it as something he wished to bring about; and (3) sought by his

actions to make it succeed. U nited States v. Tullos

, 868 F.2d 689,

694 (5th Cir.), cert. denied

, 490 U.S. 1112, 109 S.Ct. 3171, 104

L.Ed.2d 1033 (1989).

Although Hinojosa traveled with Miller and Meadows to

transport marihuana to Atlanta, he claims there is no evidence to

support the conclusion that he actively participated in the

distribution of proceeds. Miller counted the money, and then

Miller and Meadows drove to Houston to deliver the proceeds to

Lerma. Hinojosa maintains there is no evidence showing that he

either delivered the proceeds or that he aided and abetted others

in the interstate travel of the proceeds.

Although it is true that Hinojosa did not deliver the proceeds

from Atlanta to Houston personally, it is not necessary under an3 "For purposes of subsection (a) of this section, a person

is engaged in a continuing criminal enterprise if--

(1) he violates any provision of this subchapter or

subchapter II of this chapter the punishment for which is a

felony, and

(2) such violation is a part of a con tinuing series of

violations of this subchapter or subchapter II of this

chapter--

(A) which are undertaken by such person in concert with

five or more other persons with respect to whom such

person occupi es a position of organizer, a supervisory

position, or any other position of management, and

(B) From which such person obtains substantial income or

resources.

21 U.S.C. § 848(c) (1981).

9 aiding and abetting theory that he personally do so. This court

has held that the requisite intent for Section 1952(a) may be

i nferred from a defendant's conduct immediately before and after

travel. United States v. Abadie , 879 F.2d 1260, 1266 (5th Cir.),

cert. denied

, 493 U.S. 1005, 110 S.Ct. 569, 107 L.Ed.2d 563 (1989).

Conduct before an d after the actual travel may also be used to

infer that Hinojosa aided and abetted the distribution of proceeds.

Hinojosa provided the marihuana for the trip to Atlanta, and, once

the proceeds were received in Atlanta, he instructed Miller to

count the money, permitting Miller to keep the smaller bills. The

money was then transported by Meadows and Miller to Lerma for whom

Hinojosa worked. These overt acts are sufficient to manifest

Hinojosa's desire to aid and abet in the distribution of proceeds

of an unlawful activity. Accordingly, the record is not "devoid of

evidence" of Hinojosa's guilt.

The attack by Lerma on the sufficiency of the evidence is much

narrower. Lerma was convicted under the Continuing Criminal

Enterprise statute ("CCE"), 3 which requires proof that a defendant10

organized, supervised, or managed five or more persons in a

continuing series of drug violations from which the defendant

obtained substantial income. Lerma admits he organized,

supervised, or managed Solis, Montalvan, and Sosa, but he contends

the evidence is insufficient to show he had similar authority over

anyone else.

The evidence, when viewed in the light most favorable to the

government, indicates Lerma was Hinojosa's supervisor . Hinojosa

worked directly under Lerma, assisting him by stripping down cars

full of marihuana, delivering the marihuana to Atlanta, and

ensuring the money was delivered back to Lerma. The most

convincing evidence indicating Lerma supervised Hinojosa's affairs

is the business card signifying that Lerm a paid Hinojosa's legal

fees after the 1988 arrest.

Because Lerma supervised Hinojosa and Hinojosa managed or

supervised Miller and Meadows, Lerma is thus considered a manager,

supervisor, or organizer of Miller and Meadows as well. Lerma

argues he is not responsible for the people who worked for

Hinojosa, but this argument defies common logic. The CCE must not

be rendered meaningless by permitting the head of a drug enterprise

to insulate himself from liability by merely delegating authority

to several lieutenants. The specific wording of the statute

compels this Court to include delegated authority within the

definition of the CCE statute. No where in Section 848(c) does it

say the defendant must " directly" or "personally" organize,

supervise, or manage five people. Moreover, the terms "organize,"11

"su pervise," or "manage" are used disjunctively in the statute.

Lerma wants us to assume the drafters intended the words

"supervise" and "manage" to be synonymous. This is an assumption

we will not make. "[T]hese terms should be applied in their

ordinary sense as understood by the public or t he business

community." U nited States v. Butler

, 885 F.2 d at 200. The term

"manage" suggests delegated authority while "supervise" connotes

one-on-one guidance.

The caselaw firmly supports the statutory wording and purpose.

"[A] defendant may not insulate himself from CCE liability by

carefully pyramiding authority so as to maintain fewer than five

direct subordinates." U nited States v. Ricks

, 882 F.2d 885, 891

(4th Cir. 1989), cert. denied

, 493 U.S. 1 047, 110 S.Ct. 846, 107

L.Ed.2d 841 (1990). S ee also

, United States v. Phillips

, 664 F.2d

971, 1034 (5th Cir. Unit B 1981), cert. denied

, 457 U.S. 1136, 102

S.Ct. 2965, 73 L.Ed.2 d 1354, a nd cert. denied

, 459 U.S. 906, 103

S.Ct. 208, 74 L.Ed.2d 166 (1982)("Mere delegation by Myers of the

au thority to personally hire crew members to the ship's foreman

does not detract from Myers' ultimate status as organizer"); United

States v. Butler

, 885 F.2d 195, 200-01 (4th Cir. 1989)("Nor need

the defendant have personal contact with the five persons because

organizational authority and responsibility may be delegated");

United States v. Alvarez

, 860 F.2d 801, 816 (7th Cir. 1988), cert.

denied , 490 U.S. 1051, 109 S.Ct. 1966, 104 L.Ed.2d 434, and cert.

denied

, 493 U.S. 829, 110 S.Ct. 97, 107 L.Ed.2d 60 (1989) ("We find

that mere del egation of authority does not detract from [the12

defendant's] ultimate s t atus as organizer"); United States v.

Becton , 751 F.2d 250, 255 (8th Cir. 1984), cert. denied , 472 U.S.

1018, 105 S.Ct. 3480, 87 L.Ed.2d 615 (1985) ("Furthermore, the

government need not prove that the supervisor had personal contact

with each person"). Under the proper statutory interpretation, the

evidence clearly is sufficient to sustain Lerma's conviction under

the CCE.

III. JURY SELECTION

Hinojosa maintains he should be granted a new trial because

he was denied a fair trial due to two improprieties in the jury

selection process. He first asserts that the trial judge erred in

refusing to strike Ms. Morgan from the jury panel because she was

allegedly bia sed against drug-related crimes. Ms. Morgan's son,

although drug-free at the time of trial, had had a drug problem as

a teenager, and Ms. Morgan expressed some concern as to whether she

could put the experience aside during the trial. When the trial

judge asked Ms. Morgan if she could dec ide a case based on the

evidence despite her son's past problems, she stated, "I feel like

I could in on e way, and another way I'm not sure. I'm being

truthful with you, Judge." When the government questioned Ms.

Morgan, the following exchange occurred:

Government: Do you understand that you will be under

oath to follow the law and the Judge's

instructions? Can you do this?

Morgan: Yes.

Government: We're all products of our upbringing and

our hates and dislikes and likes. But13 setting those aside and deciding the facts

of the case, can you do that?

Morgan: Yes, I can.

Hinojosa attempted to have the juror struck because of bias, but

the trial judge denied the motion. As a result of the ruling,

Hinojosa used one of his peremptory challenges on Ms. Morgan, which

meant he was unable to use it on another venireman. We affirm the

trial court's ruling.

The Sixth and Fourteenth amendments of the U.S. Constitution

guarantee all criminal defendants the right to a trial by an

impartial jury. The implementation of this guarantee is entrusted

to the trial court. K ing v. Lynaugh

, 850 F.2d 1055, 1058 (5th Cir.

1988)(en banc), cert. denied

, 488 U.S. 1019, 109 S.Ct. 820, 102

L.Ed.2d 809 (1989), and cert. denied

, 489 U.S. 1093, 109 S.Ct.

1563, 103 L.Ed.2d 930 (1989). We grant broad discretion to the

trial judge in making determinations of impartiality and will not

interfere with such decisions absent a clear abuse of discretion.

United States v. McCord

, 695 F.2d 823, 828 (5th Cir.), cert.

denied

, 460 U.S. 1073, 103 S.Ct. 1533, 75 L.Ed.2d 953 (1983);

United States v. Jones , 712 F.2d 115, 121 (5th Cir. 1983); United

States v. Allred , 867 F.2d 856, 869 (5th Cir. 1989).

The decision to grant such power to the trial judge is based

on the acknowledged advantage the trial judge has in observing the

demeanor and credibility of any potential juror. Wainwright v.

Witt

, 469 U.S. 412, 428, 105 S.Ct. 844, 854, 83 L.Ed.2d 841 (1985)

("[S]uch a finding is based upon determinations of demeanor and

credibility that are peculiarly within a trial judge's province);14

Wicker v. McCotter

, 783 F.2d 487, 493 (5th Cir.), cert. denied

, 478

U.S. 1010, 106 S.Ct. 3310, 92 L.Ed.2d 723 (1986) ("[D]eterminations

of juror bias depend in great degree on the trial judge's

assessment of the potential juror's demeanor and credibility, and

on his impressions about that venireman's state of mind").

In the present case, the trial judge questioned the venireman

himself and then listened as both sides questioned her as well. At

the conclusion of this process, he believed Ms. Morgan's assertion

that she would follow the law and his instructions. Ms. Morgan's

candor on the subject bolsters her later assertions that she would

s et aside her "hates and dislikes and likes." The present case

involves a less extreme potential for bias than Celes tine v.

Blackburn

, 750 F.2d 353 (5th Cir. 1984), cert. denied

, 472 U.S.

1022, 105 S.Ct. 3490, 87 L.Ed.2d 624 (1985), in which we affirmed

a trial judge's refusal to strike a juror for bias even though the

juror knew both the prosecuting attorney and the granddaughter of

the murder victim. If the trial judge in Celestine did not abuse

his discretion in believing t he claims of impartiality, then the

trial judge in the present case certainly did not abuse his

discretion either.

Hinojosa's second claim regarding the selection of the jury is

that the government denied him equal protection of the law by using

its peremptory challenges to exclude three black prospective jurors

solely because of their race in violation of Batson v. Kentucky

,

476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The government

c laims the objection was not timely made because Hinojosa rai sed4 J ones v. Butler

, 864 F.2d 348, 370 (5th Cir. 1988), cert.

denied

, 490 U.S. 1075, 109 S.Ct. 2090, 104 L.Ed.2d 653 (1989) ("The

Supreme Court's analysis in Batson presumed that an objection would

be made promptly, probably before the venire was dismissed").

15 his Batson claim only after the venire was dismissed and after the

j ury was sworn and excused for the day. Although the caselaw

supports the government's contention, 4 we address the issue on the

merits because the trial judge ruled on the Batson claim.

The government gave the following reasons for s triking the

respective jurors:

Panelist No. 1

- The government felt he was both slow in

answering the questions and not paying attention during

voir dire. The government was also concerned because the

panelist stated he had twelve years of formal education

but did not state he had completed high school.

Panelist No. 16

- The government struck this juror

because he had not completed high school.

Panelist No. 23

- The government struck this juror

because he, too, had not completed high school.

The government's concern over lack of education and inattentiveness

was due to the complex legal issues involved in this case. The

trial involved 58 counts, including continuing criminal enterprise,

money laundering, and structuring financial transactions.

Additionally, it required th e jury to determine whether Lerma's

vast properties and assets were subject to criminal forfeiture as

proceeds of unlawful activity. The government was apprehensive that

these particular veniremen would have difficulty understanding the

complexities involved. The district court accepted the

government's reasons for its use of peremptory strikes on these

veniremen and denied the Batson motion.16

As with the motion to strike for cause, we pay great deference

to the trial judge's decision regarding a Batson motion. The trial

judge's decision rests upon a credibility determination, and, thus,

we interfere with that decision only if it is clearly erroneous or

an abuse of discretion. U nited States v. Terrazas-Carrasco

, 861

F.2d 93, 94 (5th Cir. 1988); U nited States v. Clemons

, 941 F.2 d

321, 324 (5th Cir. 1991).

Once Hinojosa made a prima facie showing that the government's

peremptory challenges were based on race, the burden shifted to the

government to articulate a race-neutral reason for its challenges.

United States v. Clemons

, 941 F.2d at 323. "Unless a

discriminatory intent is inherent in the prosecutor's explanation,

the reason given by the prosecutor will b e deemed race-neutral."

Id

. at 325. The government's reason need not rise to the level

justifying a chal lenge for cause, U nited States v. Roberts

, 913

F.2d 211, 214 (5th Cir. 1 990), c ert. denied

,

___ U.S.

___, 111

S.Ct. 2264, 114 L.Ed.2d 716 (1991), and valid reasons for exclusion

may include intuitive assumptions. U ni ted States v. TerrazasCarrasco , 861 F.2d at 94.

This Court has previously held that a disinterested demeanor

and inattentiveness are valid, race-neutral reasons for excluding

a venireman from jury service. Moore v. Keller Industries, Inc.

,

948 F.2d 199, 202 (5th Cir. 1991). We now hold that a trial judge

does not abuse his discretion by allowing exclusion of a venireman

by peremp tory challenge if that venireman's education is

insufficient when taking into account the legal issues to be5 "(1) Within 10 days after filing the notice of appeal the

appellant shall order from the reporter a transcript of such parts

of the proceedings not already on file as the appellant deems

necessary, subject to local rules of the courts of appeals. . . .

(2) If the appellant intends to urge on appeal that a finding or

conclusion is unsupported by the evidence or is contrary to the

evidence, the appellant shall include in the record a transcript of

all evidence relevant to such finding or conclusion." Fed. R. App.

P. 10(b).

17 presented. Of course, whether a venireman's education is

insufficient is a factual determination made by the judge. In the

present case, we cannot hold that the trial judge's determination

was clearly erroneous.

IV. LERMA'S SENTENCE

Lerma asserts that there are two errors in the sentence he

received and that this Court should reverse and remand for

resentencing. We are unable to consider his request because Lerma

has not provided this Court with a record of the sentencing

hearing, and no justification is given for not doing so. The rules

of appellate procedure require the appellant to provide the

rec ord, 5 and our caselaw has consistently followed this rule.

United States v. Juarez-Fierro

, 935 F.2d 672, 675, n.1 (5th Cir.),

cert. denied

,

___ U.S.

___, 112 S.Ct. 402, 116 L.Ed.2d 351

(1991)("Since the appellant failed to order the parts of the record

regarding the swearing of the second petit jury, we cannot review

his claim"); United States v. Alfaro

, 919 F.2d 962, 966, n.16 (5th

C ir. 1990)("If a defendant reasonably expects us to overturn the

factual findings of the trial court, he should strive to provide a

thorough evidentiary record on the factual issues" )(emphasis in6 S ee United States v. Durrive

, 902 F.2d 1221, 1232, n.8

(7th Cir. 1990)("We reiterate the requirement that counsel provide

this court with the district court's specific findings of fact

relevant to sentencing

. . ."); United States v. Mobile Materials,

Inc.

, 881 F.2d 866, 878 (10th C ir. 1989). c ert. denied

, 493 U.S.

1043, 110 S.Ct. 837, 107 L.Ed.2d 833 (1990)("Appellants have made

no effort to provide us with a statement envisioned by Fed.R.App.

10(c), and it is the responsibility of counsel

. . . to insure that

a complete record is available for our review"); United States v.

Johnson

, 584 F.2d 148, 156, n.18 (6th Cir. 1978), cert. denied

, 440

U.S. 918, 99 S.Ct. 1239, 59 L.Ed.2d 469 (1979) ("It is the

responsibility of appellants to insure inclusion in the record of

all trial materials upon which they intend to rely on appeal").

18 original); United States v. O'Brien , 898 F.2d 983, 985 (5th Cir.

1990)("It is appellant's responsibility to order parts of the

record which h e contends contain error and his failure to do so

prevents us from reviewing this assignment of error"); Brookins v.

United States

, 397 F.2d 261, 262 (5th Cir.), c ert. denied

, 393

U.S. 952, 89 S.Ct. 377, 21 L.Ed.2d 364 (1968)("This appellate court

`[C]an only take the record as it finds it, and cannot add thereto,

or go behind, beyond, or outside it

. . .'") (quoting 4A C.J.S.

Appeal and Error § 1206 at p. 1333). The rulings of other circuits

comport with our rulings on the importance of the inclusion of the

record. 6 Thus, to maintain the integrity of the rules and the

appellate process, we properly decline to review controversies in

which the record is not supplied to us.

V. HINOJOSA'S SENTENCE

Hinojosa, like Lerma, claims the district court erred in

computing his sentence, but, unlike Lerma, Hinojosa provided this

Court with a record of his sentencing hearing. Consequently, we

are able to evaluate whether the district court erred.19

For se ntencing purposes, the district court imposed a two

level increase of Hinojosa's offense level because "the defendant

w as an organizer, leader, manager, or supervisor in any criminal

activity." U.S.S.G. § 3B1.1(c). "Factors the court should

consider include the exer cise of decision making authority, the

nature of participation in the comm ission of the offense, the

recruitment of accomplices, the claimed right to a larger share of

the fruits of the crime, the degree of participation in planning or

organizing the offense, the nature and scope of the illegal

a ctivity, and the degree of control and authority exercised o ver

others." Application Note 3, U.S.S.G. § 3B1.1(c). Unlike a

finding of guilt, the facts necessary to support an adjustment in

sentencing must only be proved by a preponderance of the evidence.

United Stat es v. Alfaro , 919 F.2d at 965. This Court will not

reverse findings of fact unless they are clearly erroneous. U nited

States v. Mir , 919 F.2d 940, 943 (5th Cir. 1990).

Hinojosa c laims the evidence is insufficient to support a

finding that he was a "leader." He alleges the evidence shows only

t hat he was a participant with Miller and Meadows, but not their

leader. In contrast to this claim, the following evidence

established at trial supports the district court's finding of

Hinojosa as a leader: (1) Hinojosa supplied the marihuana for the

trips to Atlanta; (2) he was involved with the men who picked up

the marihuana and paid for the load; (3) he chose the hotel where

they met; (4) he directed Miller to count the money and gave Miller

permission to keep the small bills; and (5) when Meadows was20

stopped with money in the Atlanta airport, it was Hinojosa and

Lerma who met with Meadows to discover what happened to the money.

With this preponderance of the evidence supporting the finding of

Hinojosa as a leader, we hold that the district court's ruling was

not clearly erroneous.

VI. CONCLUSION

We hold the convictions of Hinojosa and Lerma must be upheld.

There were no improprieties in the selection of the jury, and the

evidence was sufficient to support all convictions. With respect

to Hinojosa, the trial judge did not err in calculating his

sentence, and with respect to Lerma, we do not address the issue of

error in calculating his sentence because Lerma did not provide us

with the record of the sentencing proceedings. Finding no error,

we affirm the convictions and sentences.

AFFIRMED.