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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 94-10664
Summary Calendar
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GUADALUPE DAVILA,
a/k/a Lupe Davila, Defendant-Appellant.
* * * * * *
__________________
No. 94-10811
Summary Calendar
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GUADALUPE DAVILA,
a/k/a Lupe Davila,
Defendant-Appellant.
______________________________________________
Appeals from the United States District Court for the
Northern District of Texas
(4:93-CR-116-Y & 4:94-CR-9-1)
______________________________________________
(April 17, 1995)

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* Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
1 The September 21, 1993 indictment also charged Davila with
possession with intent to distribute cocaine and heroin (Counts
2
Before GARWOOD, HIGGINBOTHAM and DAVIS, Circuit Judges.*
GARWOOD, Circuit Judge:
In these consolidated appeals, Guadalupe Davila (Davila)
appeals his convictions and sentences imposed, in the United States
District Court for the Northern District of Texas, Fort Worth
Division, after Davila entered guilty pleas in two separate
indictments to one count of conspiracy to possess with intent to
distribute cocaine and heroin in violation of 21 U.S.C. §§
841(a)(1) and 846 and one count of conspiracy to possess with
intent to distribute heroin in violation of 21 U.S.C. §§ 841(a)(1)
and 846. We affirm.
Facts and Proceedings Below
On September 21, 1993, a federal grand jury returned a multi-
count indictment charging Davila, his wife Zulema, Rodolfo Lara
Banda (Banda), Abel Benavides (Benavides), Adam Ramirez (Ramirez),
and Jose Mosqueda-Cortez (Mosqueda-Cortez) with conspiracy to
possess with intent to distribute cocaine and heroin in violation
of 21 U.S.C. §§ 841(a)(1) and 846 from December 3, 1991 until
September 21, 1993 (our cause No. 94-10664). The twenty-five
substantive counts of the indictment alleged the overt acts forming
the conspiracy.1 The last overt act alleged in the indictment

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2, 3, 4, 5, 6, and 7), using and carrying a firearm during the
commission of the offenses alleged in Counts 1 and 7 (Count 8),
unlawfully maintaining a place for the purpose of distributing
cocaine, heroin, and marihuana (Counts 9 and 10), unlawful use of
a communications facility to facilitate the distribution of
heroin, cocaine, and marihuana (Counts 17 and 18), and the
possession of a firearm by a convicted felon (Count 26). The
offenses charged in these counts were alleged to have been
committed on December 3, 1991, April 2, 1992, July 16, 20 and 31,
1992, December 16, 1992, from December 3, 1991 to May 1, 1992,
from May 1, 1992 to December 16, 1992, and November 21 and 27,
1992.
2 The Presentence Report (PSR) stated that the conspiracy in
94-10664 was interrupted by the execution of search warrants on
December 16, 1992.
3 Davila was not charged in Count 3.
3
occurred on December 16, 1992.2 On January 25, 1994, another
federal grand jury returned a four-count indictment charging
Davila, Reynaldo Garza (Garza), Jose Luis Hernandez (Hernandez),
Augustin Almaguer, and Roberto Almaguer with conspiracy from
October 29, 1993 to November 16, 1993 to possess with intent to
distribute heroin in violation of 21 U.S.C. §§ 841(a)(1) and 846
(our cause No. 94-10811). The overt acts alleged in this second
indictment occurred on October 29, 1993 (Count 2), November 10,
1993 (Count 3), and November 16, 1993 (Count 3).3
On March 24, 1994, at about 10:00 a.m., Davila appeared with
his counsel before United States District Judge Terry Means and
entered a guilty plea to Count one of the indictment in 94-10664
pursuant to a written plea agreement. The factual resume
supporting the plea, signed by Davila, his counsel and the
government, reflected that Davila and his wife sold cocaine from
their Fort Worth, Texas residence from December 3, 1991 until

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4 The Davilas lived at 3700 Burnice Drive in Fort Worth until
May 1, 1992, when they moved to 3121 Avenue K, also in Fort
Worth. The factual resume stated that the Burnice Drive
residence was located within one thousand feet of an elementary
school.
5 According to the factual resume, Banda and Ramirez were in
charge of finding customers, weighing out the drugs, delivering
them to buyers, and collecting drug debts for the Davilas.
Benavides stored drugs and money and also weighed out drug
orders, made deliveries, and collected payments due for drugs.
Mosqueda-Cortez obtained the cocaine and heroin for the Davilas
from various sources.
4
December 16, 1992.4 The factual resume recounted that Banda,
Benavides, Ramirez, and Mosqueda-Cortez assisted the Davilas in
their narcotics operation.5 In return for Davila's plea of guilty
to Count one, the government agreed to dismiss the remaining counts
of the indictment in 94-10664 at sentencing. In addition, the
government agreed not to prosecute Davila any further for his
"participation in the conspiracy alleged in the Indictment and set
out in the Factual Resume."
Also on March 24, 1994, at about 10:35 a.m., Davila appeared
with his attorney before United States District Judge John McBryde
and entered a plea of guilty to Count one of the indictment in 94-
10811 pursuant to a written plea agreement. The factual resume
supporting this plea agreement, signed by Davila, his counsel, and
the government, reflected that Davila, Garza, Hernandez, and
Augustin Almaguer sold one ounce of heroin to an undercover F.B.I.
agent on November 10, 1993. In return for Davila's plea of guilty
to Count one of this indictment, the government agreed to dismiss
the remaining counts of the indictment in 94-10811 at the time of
sentencing and promised not to prosecute Davila any further for his

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5
participation in the conspiracy alleged in the indictment and
described in the factual resume.
One Presentence Report (PSR) was prepared for both convictions
and was distributed to the two different district court judges.
With respect to 94-10664, the PSR stated that the investigation
determined that Davila was the leader and organizer of the
conspiracy. In determining the amount of drugs attributable to
Davila in 94-10664, the PSR considered the amount of drugs seized
from the residences of the Davilas and their co-conspirators and
also estimated the amount of drugs involved in other known
distributions made during the relevant time period (not extending
beyond December 16, 1992). The PSR recommended that Davila be held
accountable in 94-10664 for 3-5 kilograms of heroin, at least 20
kilograms of cocaine, and at least 100 pounds of marihuana. With
respect to 94-10811, the PSR recounted Davila's participation in
the sale of 1 ounce of heroin to an undercover agent on November
10, 1993 and characterized his role in the second conspiracy as
that of a middle man who knew sources who could obtain heroin. The
PSR stated that the amount of heroin involved in 94-10811 was 31
grams.
The PSR recommended that Davila's convictions in 94-10664 and
94-10811 be grouped together for sentencing purposes pursuant to
U.S.S.G. § 3D1.2(b). When U.S.S.G. § 3D1.2 produces a single group
of closely related counts, "the combined offense level is the level
corresponding to the Group determined in accordance with §3D1.3."
U.S.S.G. § 3D1.4, Application Note 1. U.S.S.G. § 3D1.3(a) and (b)
provide that the offense guideline that produces the highest

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6
offense level should apply. The PSR calculated the base offense
level to be 34 under either calculation. After adjustments were
made for the use of a firearm, his leadership role, and a credit
given for his acceptance of responsibility, the PSR determined that
the recommended total offense level was 37. Davila filed three
objections to findings in the PSR, arguing that his physical
condition should be taken into consideration, that he was willing
to accept treatment for his drug and alcohol addictions, and that
he was entitled to a downward departure based on his age and
physical condition. Davila, however, never objected to the
suggested grouping of the offenses for purposes of sentencing.
On July 1, 1994, the district court (Judge McBryde) held a
sentencing hearing in 94-10811. After finding that Davila's
objections to the PSR did not require rulings because they were
essentially only comments on the findings of the PSR, the district
court adopted the findings of the PSR without objection. The
district court then calculated that the Sentencing Guidelines would
call for a sentencing range of 292-365 months but pointed out that
the statutory maximum for the offense to which Davila pleaded
guilty in 94-10811 was 240 months. Therefore, the district court
sentenced Davila to 240 months imprisonment, 5 years of supervised
release, and imposed a special assessment of $50. No fine was
imposed. The government then moved to dismiss the remaining counts
of the indictment against Davila in accordance with the plea
agreement, and the district court granted the motion. Davila filed
a timely notice of appeal.
On July 12, 1994, the district court (Judge Means) held a

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6 Initially, we address whether Davila can establish that he
received multiple punishments because his terms of imprisonment
were to run concurrently. Two sentences, however, are not
considered wholly concurrent if separate special assessments are
imposed on each conviction. United States v. Berry, 977 F.2d
915, 920 (5th Cir. 1992). Because a separate special assessment
was imposed in each case, Davila's sentences were not technically
wholly concurrent.
7
sentencing hearing in 94-10664. After Davila conceded that his
objections to the PSR were "more a request for a downward
departure," the district court adopted the findings contained in
the PSR. The district court determined that the Sentencing
Guideline range for Davila's offense was 292-365 months of
imprisonment and sentenced Davila to 292 months of imprisonment, to
be served concurrently with his sentence in 94-10811. The district
court also sentenced Davila to 5 years of supervised release (to
run concurrently with the supervised release in No. 94-10811) and
ordered him to pay a special assessment of $50. No fine was
imposed. The government then moved to dismiss the remaining counts
of the indictment against Davila in accordance with the plea
agreement, and the district court granted the motion. Davila filed
a timely notice of appeal. Causes 94-10811 and 94-10664 were
subsequently consolidated on appeal.
Discussion
Davila's first argues that he was subjected to multiple
punishments for the same conduct in violation of the Double
Jeopardy Clause. Davila asserts that, because his convictions were
sufficiently similar to be grouped for sentencing purposes, he
received multiple punishments for the same offense.6 Davila never
raised this issue in the district court. When a defendant fails to

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8
raise a timely objection in the district court, he may not raise it
on appeal absent plain error. United States v. Calverley, 37 F.3d
160, 162 (5th Cir. 1994) (en banc), cert. denied, 115 S.Ct. 1266
(1995). In United States v. Olano, 113 S.Ct. 1770, 1776 (1993),
the Supreme Court posited the three requirements for showing plain
error under Federal Rule of Criminal Procedure 52(b). In order to
obtain relief under the plain error standard, a defendant must show
that (1) the district court deviated from a legal rule in the
absence of a waiver, (2) the error was clear or obvious, and (3)
the error affected substantial rights and influenced the district
court proceedings. Id. at 1777-78. Even if all three requirements
are satisfied, "the Court of Appeals has authority to order
correction, but is not required to do so." Id. at 1778.
Prior to Olano, we held that multiple sentences in violation
of double jeopardy constitute plain error. United States v.
Pineda-Ortuno, 952 F.2d 98, 105 (5th Cir.), cert. denied, 112 S.Ct.
1990 (1992). We have not considered whether Olano requires us to
re-examine the holding in Pineda-Ortuno. In Pineda-Ortuno, Border
Patrol agents found cocaine and two guns in the vehicle in which
the two defendants were travelling. Because the indictment charged
each weapon as a separate offense, the defendants were convicted of
two offenses of carrying a firearm in connection with a single drug
trafficking offense. Id. at 104-05. See United States v.
Privette, 947 F.2d 1259, 1262 (5th Cir. 1991), cert. denied, 112
S.Ct. 1279 (1992) (convictions for possessing two firearms, found
in the same search of defendant's premises, in a single drug
trafficking offense violate double jeopardy). Although one

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9
defendant did not raise a double jeopardy objection at trial or on
appeal, the Pineda-Ortuno court held that it constituted plain
error. 952 F.2d at 105. Without determining whether Pineda-Ortuno
survives Olano, we find that the facts of the instant case are
distinguishable. In Pineda-Ortuno, the double jeopardy violation
was evident from the face of the indictment. By contrast, the
indictments returned against Davila reflect that he was charged
with participating in two different conspiracies during different
time periods and with different co-conspirators. Because it is not
evident from the face of the indictments (or otherwise from the
record) that Davila was charged twice for the same offense, we hold
that any alleged error in this case was not plain.
Furthermore, we find significant the fact that Davila pleaded
guilty to both counts. In United States v. Broce, 109 S.Ct. 757
(1989), two separate indictments charged the defendants with
various violations of the Sherman Act. After entering plea
agreements with the government, the defendants pleaded guilty to
the two indictments in a single proceeding, and the district court
sentenced the defendants on both convictions. The defendants did
not appeal, and their convictions became final. Subsequently, the
defendants sought to have their sentences set aside, arguing that
their convictions violated double jeopardy because there was only
a single conspiracy. The Supreme Court held that the defendants,
by pleading guilty to two indictments that on their face described
separate conspiracies, waived their double jeopardy argument that
there was only one conspiracy. Id. at 766. Under Broce, a
defendant who pleads guilty to criminal charges may assert a claim

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10
of multiple punishments in violation of the Double Jeopardy Clause
"only if the violation is apparent on the face of the indictment or
record." Taylor v. Whitley, 933 F.2d 325, 328 (5th Cir. 1991),
cert. denied, 112 S.Ct. 1678 (1992) (collateral attack on a guilty
plea) (citations omitted). See, e.g., United States v. Pollen, 978
F.2d 78, 84 (3d Cir. 1994), cert. denied, 113 S.Ct. 2332 (1993)
(applying the rule of Broce in a direct criminal appeal). We find
the facts surrounding Davila's convictions analogous to Broce.
Davila, like the defendants in Broce, pleaded guilty to two
indictments that on their face charged separate conspiracies. We
thus find that, under Broce, Davila has waived any double jeopardy
challenge based on his argument that there was only one conspiracy.
Even if Davila could raise his double jeopardy argument, we
find that it is meritless. In determining whether a defendant has
been prosecuted twice for the same conspiracy charged in separate
indictments in violation of double jeopardy, we must determine
whether the two conspiracies are factually distinct. United States
v. Vasquez-Rodriguez, 978 F.2d 867, 870 (5th Cir. 1992). Five
factors guide our analysis in making this determination: (1) time;
(2) persons acting as co-conspirators; (3) the statutory offenses
charged in the indictment; (4) the overt acts charged or any other
description of the offense that indicates the nature and scope of
the activity sought to be punished; and (5) the places where the
alleged events occurred. Id.
Applying these factors to the facts of record surrounding
Davila's indictments, we hold that the two conspiracies constitute
separate offenses. At the time of his guilty pleas, Davila

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7 The PSR does state that there was some suggestion that Garza
was also involved (but without giving any indication of how) in
the 94-10664 conspiracy. However, he was not mentioned in the
indictment. Neither the factual resume nor anything else of
record (apart from this statement in the PSR) indicates that
Garza was involved in the 94-10664 conspiracy.
8 The indictment in 94-10811 did not that allege any firearms
were involved.
11
stipulated to the factual resumes contained in the plea agreements.
Davila does not dispute these factual findings on appeal. Both the
indictment and the factual resume supporting Davila's guilty plea
in 94-10664 describe a conspiracy with overt acts occurring from
December 3, 1991 until December 16, 1992, involving co-conspirators
Banda, Benavides, Ramirez, and Mosqueda-Cortez.7 By contrast, the
indictment and factual resume supporting Davila's guilty plea in
94-10811 recount a conspiracy from October 29, 1993 until November
10, 1993, involving Garza, Hernandez, Augustin Almaguer, and
Roberto Almaguer. While the indictment in 94-10664 charged a
conspiracy occurring over the course of one year in which Davila
sold large amounts of drugs from his home and used firearms for
protection, the indictment in 94-10811 alleged a conspiracy in
which Davila participated in the sale of a small amount of heroin
to an undercover agent.8 The PSR reflects (consistently with the
indictments and factual resumes) that Davila acted as the leader in
the 94-10664 conspiracy and as a middle man in the 94-10811
conspiracy. Although both indictments were based on violations of
the same statutory provisions, each conspiracy involved a separate
set of overt acts performed by Davila at different times and places
with a different set of co-conspirators. Thus, we reject Davila's

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12
argument that his two conspiracy convictions violate double
jeopardy.
Davila next challenges the sentences imposed for his two
convictions. Davila apparently argues that the grouping of both
convictions for purposes of sentencing was improper and that he was
improperly sentenced as a kingpin in both cases. Because Davila
did not raise these objections in the district court, our review is
limited to plain error. Calverley, 37 F.3d at 162. We hold that
the district court properly grouped Davila's two convictions for
purposes of sentencing. U.S.S.G. § 3D1.2(b). To the extent that
Davila challenges the classification of his role in the offenses,
we will not consider such an argument raised for the first time on
appeal because it requires resolution of fact issues. United
States v. Guerrero, 5 F.3d 868, 871 (5th Cir. 1993), cert. denied,
114 S.Ct. 1111 (1994) (holding that questions of fact that could
have been resolved by the district court upon proper objection can
never constitute plain error). Based on our review of the record,
the PSR and the sentences imposed in 94-10664 and 94-10811, we hold
that the district courts did not commit any error, much less plain
error.
Conclusion
For the foregoing reasons, Davila's convictions and sentence
are
AFFIRMED.

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