IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 99-40367 _____________________

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

RICARDO FLORES; JULIAN MEDRANO

Defendants - Appellants

_________________________________________________________________

Appeals from the United States District Court for the Southern District of Texas, Laredo Division No. L-98-CR-608-1 _________________________________________________________________ November 26, 2001

Before KING, Chief Judge, and JOLLY and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Defendants Ricardo Flores and Julian Medrano appeal their

convictions and sentences for violations of

(a)(1). For the reasons that follow, we AFFIRM the

defendants’ convictions and sentences.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. I. Factual and Procedural History

In July 1997, Border Patrol agents seized 1,143 kilograms of

cocaine from a truck driven by Eleazar Eggers. As a result of

Eggers’s cooperation after his arrest, agents focused their

investigation on Zenon Cantu and Pablo Santos Chapa. Pursuant to

the investigation, agents obtained a search warrant for and

conducted a search of Cantu’s residence. During the search,

agents seized telephone and address books, ledgers, documents,

communication devices, radios, and cellular telephones. This

evidence suggested a cocaine conspiracy and implicated Vicente

Alvarado-Valdez, Julian Medrano, and Ricardo Flores. Cantu and

Eggers were indicted for conspiracy to possess with intent to

distribute cocaine in violation of

(a)(1). Cantu

agreed to cooperate with DEA agents, and as a result of

information obtained from Cantu, Flores, Alvarado-Valdez, Chapa,

and Medrano were charged on July 21, 1998, with conspiracy to

“possess with intent to distribute a Schedule II controlled

substance, to wit: a quantity in excess of 5 kilograms of

cocaine,” also in violation of

(a)(1). The jury

trial commenced on October 26, 1998.

Evidence introduced at trial included testimony by Cantu,

Flores, and Medrano, as well as documentary evidence and

telephone logs seized during the investigation. The jury

returned a guilty verdict for both Flores and Medrano on November

2 13, 1999. Flores and Medrano were sentenced on March 1, 2000.

The district court sentenced Flores to thirty years of

imprisonment, ten years of supervised release, and a $100 special

assessment. Medrano received a sentence of twenty-six years of

imprisonment, five years of supervised release, and a $100

special assessment.

On appeal Flores argues (1) that there is insufficient

evidence to support his conviction and (2) that his prison

sentence violates Apprendi v. New Jersey,

(2000).

Medrano argues (1) that there is insufficient evidence to support

conviction, (2) that his prison sentence violates Apprendi,1 (3)

that the district court improperly admitted unfairly prejudicial

evidence, and (4) that the district court improperly enhanced his

sentence for obstruction of justice.2

II. Sufficiency of the Evidence

Both Flores and Medrano argue that the evidence presented to

the jury was insufficient to support their convictions. Neither

Flores nor Medrano moved for a judgment of acquittal at the close

of evidence. We review, therefore, under the “manifest

1 Medrano claims that the jury instructions and his sentence contain two separate Apprendi errors. Because of the nature of our Apprendi analysis, we must view those claims as raising one issue. 2 Notably, neither Flores nor Medrano challenges his term of supervised release.

3 miscarriage of justice” standard. See United States v. Johnson,

(5th Cir. 1996); United States v. McCarty,

(5th Cir. 1994). Such a miscarriage of justice

can be shown if “there is no evidence of the defendant’s guilt,”

United States v. Villasenor,

(5th Cir. 2000),

or “the evidence on a key element of the offense [is] so tenuous

that a conviction would be shocking,” McCarty,

(quoting United States v. Pierre,

(5th Cir.

1992) (en banc)).

The elements of a § 841(a)(1) drug conspiracy are (1) an

agreement to possess narcotics with the intent to distribute, (2)

knowledge of the agreement, and (3) voluntary participation in

the agreement. See Unites States v. Fierro,

(5th Cir. 1994). A jury may infer these elements from

circumstantial evidence. See United States v. Morgan,

(5th Cir. 1997). Although mere association with

conspirators is insufficient to prove knowing participation in an

agreement, such association combined with other circumstantial

evidence may support a conspiracy conviction. See United States

v. Cortinas,

(5th Cir. 1998).

Cantu, the primary witness for the prosecution, testified to

the existence of a drug conspiracy and Flores’s and Medrano’s

knowing participation in that conspiracy. Flores and Medrano

argue that their convictions cannot rest solely on the

uncorroborated testimony of Cantu, a coconspirator who agreed to

4 cooperate with the government. We disagree. A conviction may

rest upon the uncorroborated testimony of an accomplice who has

entered into a leniency agreement with the government, as long as

the testimony is not incredible as a matter of law. See United

States v. Posada-Rios,

(5th Cir. 1998).

Cantu’s testimony was not incredible as a matter of law because

it did not “relate[] to facts that [Cantu] could not possibly

have observed or to events which could not have occurred under

the laws of nature.”

Furthermore, Cantu’s testimony was

supported by documentary evidence and phone records. It is the

jury’s duty to evaluate the credibility of a compensated witness.

See United States v. Bermea,

(5th Cir. 1994).

Because we find sufficient evidence to convict both Flores and

Medrano, we will not second-guess the jury’s guilty verdicts.

III. Apprendi Error Analysis

In Apprendi, the Supreme Court established that “[o]ther

than the fact of a prior conviction, any fact that increases the

penalty for a crime beyond the prescribed statutory maximum must

be submitted to a jury, and proved beyond a reasonable doubt.”

. This court has noted that “[t]he decision in

Apprendi was specifically limited to facts which increase the

penalty beyond the statutory maximum.” United States v. Doggett,

(5th Cir. 2000). Medrano and Flores were

5 prosecuted under

(a)(1). For a § 841(a)(1)

violation involving an unspecified drug quantity, § 841(b)(1)(C)

establishes the statutory maximum penalty of twenty years of

imprisonment.3 Under Apprendi, a defendant charged with a

§ 841(a)(1) violation may not be sentenced beyond the twenty-year

statutory maximum unless a drug quantity triggering a higher

maximum penalty under § 841(b)(1)(A) or (B) was alleged in the

indictment and submitted to a jury to find beyond a reasonable

doubt. See United States v. Keith,

(5th Cir.

2000).

Both Flores and Medrano argue that their sentences, thirty

years and twenty-six years respectively, are impermissible under

Apprendi. They contend that because no drug quantity was

submitted to the jury to find beyond a reasonable doubt, the

district court was not authorized to sentence them beyond the

§ 841(b)(1)(C) twenty-year statutory maximum.4 Under our cases,

to establish Apprendi error, Flores and Medrano must show that:

(1) their sentences are longer than the applicable statutory

maximum penalty and (2) drug quantity was not submitted to the

jury to find beyond a reasonable doubt. See United States v.

Slaughter,

(5th Cir. 2001) (noting that only

3 A prior conviction for a felony drug offense raises this statutory maximum penalty to thirty years of imprisonment.

(b)(1)(C) (1999). 4 Both Flores and Medrano concede that their indictments adequately allege drug quantity.

6 facts which increase the penalty for a crime beyond the statutory

maximum must be submitted to the jury to find beyond a reasonable

doubt).

A. Medrano’s Sentence

Medrano and Flores were charged in Count One of the

indictment with conspiracy to “possess with intent to distribute

a Schedule II controlled substance, to-wit: a quantity in excess

of 5 kilograms of cocaine.” When giving the jury instructions,

the district court read Count One of the indictment and then

stated:

For you to find the Defendant guilty of conspiring to possess with intent to distribute as charged in Count One of the indictment, you must first be convinced that the Government has proved each of the following with respect to the Defendant beyond a reasonable doubt: First, that two or more persons made an agreement to commit the crime of possession with intent to distribute as charged in Count One of the indictment; Second, that the Defendant knew the unlawful purpose of the agreement and joined in it willfully, that is, with the intent to further the unlawful purpose.

(emphasis added). Medrano did not object to the adequacy of the

jury instructions at trial. The jury found Medrano guilty, and

the district court sentenced him to twenty-six years of

imprisonment, six years greater than the maximum allowed under

§ 841(b)(1)(C).5

5 The twenty year statutory maximum penalty applies to Medrano because he has no prior felony drug convictions.

7 On appeal, Medrano argues that United States v. Clinton,

(5th Cir. 2001), which involved a similar jury

instruction that the court found flawed under Apprendi, mandates

reversal of his conviction. Because Medrano failed to object to

the jury instructions at trial, we review the alleged Apprendi

violation for plain error only. See United States v. Johnson,

(1997) (reviewing for plain error when the

defendant failed to object to an omission in the jury

instructions at trial). This deferential standard of review

dictates that before this court can correct an error not raised

at trial, there must be (1) an “error,” (2) that is “plain,” (3)

that “affect[s] substantial rights,” and (4) that “seriously

affect[s] the fairness, integrity, or public reputation of

judicial proceedings.” United States v. Olano,

(1993) (internal citations and quotations omitted).

Assuming arguendo that these facts establish an Apprendi

error, it does not amount to plain error under the Johnson-Olano

standard. At trial, Cantu testified that Medrano voluntarily

transported approximately 840 kilograms of cocaine to New York.

Cantu’s testimony is supported by documentary evidence and phone

records. Medrano testified that he drove a truck of furniture to

New York for Cantu and did not knowingly transport cocaine.

Having disclaimed any knowledge of the cocaine, Medrano

understandably offered no evidence as to the amount of cocaine

involved, and there is no suggestion in the record that a

8 quantity of cocaine less than 840 kilograms could have been

involved. Accordingly, the evidence that at least 840 kilograms

of cocaine was transported is overwhelming, and we have no basis

for concluding that the alleged Apprendi error “seriously

affect[ed] the fairness, integrity or public reputation of

judicial proceedings.” Johnson,

. Accordingly,

we affirm Medrano’s sentence.

B. Flores’s Sentence

In arguing that his sentence of thirty years of imprisonment

violates Apprendi, Flores incorrectly assumes that the applicable

statutory maximum is twenty years. Having been convicted of a

prior felony drug offense, Flores is subject to a statutory

maximum of thirty years of imprisonment. § 841(b)(1)(C);6 see

also Keith,

(noting that the defendant’s maximum

prison sentence under § 841(b)(1)(C) is thirty years because of

his prior felony conviction). We find Apprendi error only in

those cases where a defendant’s sentence exceeds the statutory

maximum. See United States v. Salazar-Flores,

, 673-

74 (5th Cir. 2001). Because Flores’s sentence of thirty years of

imprisonment does not exceed the statutory maximum applicable to

him, it does not violate Apprendi. Accordingly, we affirm

Flores’s sentence.

6 Section 841(b)(1)(C) provides that “[i]f any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment of not more than 30 years.”

9 IV. Evidence of Medrano’s Prior Drug Transactions

Medrano argues that the district court improperly admitted

documents and testimony referencing past, unrelated drug

transactions under Federal Rule of Evidence 404(b) (“Rule

404(b)”).7 Although at one point during trial Medrano objected

to some documentary evidence referencing past drug transactions,

his objection was a hearsay objection. Medrano never objected to

documentary or testimonial evidence concerning prior drug

transactions on Rule 404(b) grounds. Despite the lack of a Rule

404(b) objection, the district court explicitly ruled that the

extrinsic act evidence relating to past drug transactions was

admissible under Rule 404(b).8

Generally, we review the district court’s rulings regarding

admissibility of extrinsic act evidence under Rule 404(b) for

abuse of discretion. See Alarcon, 261 F.3d at 424. Because

7 Rule 404(b) provides that: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. 8 Medrano argues that the district court erred because it did not articulate on the record its balancing of probative value and prejudice. Because Medrano did not request that the district court perform this analysis, however, the court need not do so on the record. See United States v. Alarcon,

(5th Cir. 2001).

10 Medrano failed to object to the Rule 404(b) ruling, however, we

review the district court’s ruling for plain error. See United

States v. Smith,

(5th Cir. 2000). An error is

plain only when “in the context of the entire case, it is ‘so

obvious and substantial that [the district court’s] failure to

notice and correct it would affect the fairness, integrity or

public reputation of judicial proceedings.’”

(quoting United

States v. Lopez,

(5th Cir. 1991)).

When determining the admissibility of evidence under Rule

404(b), this court applies the two-part test established in

United States v. Beechum,

(5th Cir. 1978). First,

we ask whether the extrinsic act evidence “is relevant to an

issue other than the defendant’s character.”

. We

have held that evidence of past drug transactions is relevant in

a drug conspiracy prosecution to establish criminal intent. See

United States v. Misher,

(5th Cir. 1996).

Medrano placed his intent in issue by pleading not guilty. See

id.; see also United States v. Wilwright,

(5th

Cir. 1995). Therefore, evidence of Medrano’s past drug

transactions is relevant to show his intent, and the first step

of the Beechum inquiry is satisfied.

Second, we determine whether the probative value of the

extrinsic act evidence is substantially outweighed by its undue

prejudice. See Beechum,

. When considering the

probative value of extrinsic act evidence, we examine the

11 following factors: “(1) the extent to which the defendant’s

unlawful intent is established by other evidence, (2) the overall

similarity of the extrinsic and charged offenses, and (3) the

amount of time that separates the extrinsic and charged

offenses.” United States v. Chavez,

(5th

Cir. 1997). First, Cantu’s testimony regarding Medrano’s past

drug transactions and the documentary evidence supporting that

testimony is critical to the government’s proof of Medrano’s

criminal intent. Medrano testified that he never knowingly

participated in drug transactions with Cantu. Because there is

little evidence of Medrano’s intent apart from his own testimony,

evidence tending to show that Medrano knowingly collaborated with

Cantu in prior drug transactions is very probative of Medrano’s

criminal intent regarding the cocaine transaction at issue. See

(finding a fifteen-year-old conviction to be probative

of intent, particularly “given the lack of other evidence of [the

defendant’s] intent”).

Second, the prior marijuana transactions are sufficiently

similar to the cocaine transaction at issue to be probative.

Both transactions involved Medrano and Cantu and the

transportation of large loads of drugs out of Laredo, Texas. The

fact that the prior transaction involved marijuana instead of

cocaine does not destroy the probative value of that transaction.

See

(finding a past conviction for a cocaine

conspiracy probative in a case regarding a marijuana conspiracy).

12 Third, the time period between the marijuana transactions and the

cocaine transaction is probative of Medrano’s intent because the

marijuana transactions occurred mere months before the cocaine

transaction at issue.

Furthermore, when instructing the jury, the district court

cautioned that evidence of extrinsic acts must not be considered

“in deciding if the Defendant committed the acts charged in the

indictment.” The district court instructed the jury to consider

such evidence only “to determine whether the Defendant had the

state of mind or intent necessary to commit the crime charged in

the indictment.”

These jury instructions minimized any

potential prejudice to Medrano. See United States v. Gadison,

(5th Cir. 1993). These facts suggest that the

probative value of the extrinsic act evidence is not

substantially outweighed by its undue prejudice. For these

reasons, we find that the district court did not commit plain

error, or indeed any error at all, when it admitted evidence of

Medrano’s prior marijuana transactions under Rule 404(b).

V. Medrano’s Obstruction of Justice Enhancement

Medrano argues that the district court improperly imposed a

two-level sentence enhancement for obstruction of justice,

specifically perjury, pursuant to § 3C1.1 of the United States

Sentencing Guidelines (the “Guidelines”). See U.S. SENTENCING

13 GUIDELINES MANUAL § 3C1.1 (1998). Generally, we review the district

court’s interpretation and application of the Guidelines de novo

and its factual findings, such as a finding of obstruction of

justice, for clear error. See United States v. Huerta,

(5th Cir. 1999). We review the district court’s finding

of obstruction of justice for plain error, however, if the

defendant did not object to the sufficiency of the finding in the

sentencing hearing. See

.

During the sentencing hearing, Medrano objected to the

constitutionality of the two-level enhancement for obstruction of

justice. However, he never objected to the sufficiency of the

district court’s factual findings regarding his obstruction of

justice.

In Huerta, the defendant objected to the district

court’s obstruction of justice finding by arguing: (1) that there

was a lack of evidence showing that the defendant fled from the

arresting officers and (2) that mere flight to avoid apprehension

did not constitute obstruction of justice. See

.

On appeal, Huerta raised those same arguments and also argued

that the district court had misapplied the Guidelines by not

explicitly addressing the issue of willfulness. See

at 365-

66. This court reviewed that new challenge under the plain error

standard. See

. Our holding in Huerta suggests that a

specific objection to a two-level enhancement for obstruction of

justice before the district court does not preserve for appeal

other objections to the enhancement. Because Medrano only

14 objected to the constitutionality of the two-level enhancement

for obstruction of justice and did not specifically object to the

sufficiency of the district court’s factual findings regarding

that enhancement, we review the new objection for plain error

only.

The Presentence Report (the “PSR”) recommended a two-level

enhancement of Medrano’s sentence for obstruction of justice.

The PSR stated: “The defendant testified falsely at his trial.

[He] testified falsely concerning the offense, in regard to his

role and that of the codefendants. He has obstructed justice in

this case.”

The district court adopted the factual findings

set forth in the PSR. The commentary to § 3C1.1 of the

Guidelines states that perjury is one example of the type of

conduct to which a two-level enhancement for obstruction of

justice may apply. § 3C1.1 cmt. 4(b). In United States v.

Dunnigan,

(1993), the Supreme Court explained that a

defendant commits perjury for purposes of § 3C1.1 if he “gives

false testimony concerning a material matter with the willful

intent to provide false testimony, rather than as a result of

confusion, mistake, or faulty memory.” Id. at 95. Although

favored, separate findings on each element of perjury are not

required. Id. Medrano concedes that by adopting the findings of

the PSR, the district court made findings concerning two elements

required for perjury: (1) false testimony and (2) concerning a

15 material matter. Medrano argues that the district court erred by

not explicitly finding willfulness.

In United States v. Morris,

(5th Cir. 1997),

the district court found that “Morris was untruthful at trial

with respect to material matters in this case.”

.

Despite the fact that the district court in Morris never

explicitly found willfulness, we found no clear error in the

court’s imposition of a two-level enhancement for obstruction of

justice.

Similarly, despite the lack of an explicit

district court finding regarding Medrano’s willfulness in the

instant case, there is no clear error and, thus, no plain error.

In spite of testimonial and documentary evidence to the

contrary, Medrano claimed throughout his trial that he had no

knowledge of the cocaine conspiracy. We find that the district

court’s findings regarding Medrano’s false testimony on material

matters are sufficient to support the two-level enhancement for

obstruction of justice.

VI. Conclusion

For all the foregoing reasons, we find (1) that there is

sufficient evidence to support Flores’s and Medrano’s guilty

verdicts, (2) that the alleged Apprendi error in Medrano’s prison

sentence was not plain error, (3) that Flores’s prison sentence

contains no Apprendi error, (4) that the district court’s

16 admission of evidence of Medrano’s past drug transactions was not

plain error, and (4) that the two-level enhancement of Medrano’s

sentence was not plain error. Thus, we AFFIRM the defendants’

convictions and sentences.

AFFIRMED.

17