United States v. Arnold

United States Court of Appeals
Fifth Circuit
F I L E D
July 5, 2005
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 04-10435
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
EDDIE ARNOLD,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
______________________________
Before GARWOOD, SMITH, and CLEMENT,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Eddie Arnold challenges his conviction of
and sentencing for his participation in a meth-
amphetamine narcotics conspiracy. Finding no
error, we affirm.
I.
Arnold was indicted for his alleged partici-
pation in a narcotics distribution conspiracy
involving 500 grams or more of a mixture of a
substance containing a detectible amount of
methamphetamine, in violation of 21 U.S.C.
§ 846. The government’s star witness was one
of Arnold’s co-defendants, Clint McMillan,
who testified that they had agreed to buy and
sell methamphetamine for profit. McMillan
stated they obtained the drugs from Steven
O’Neal, and Arnold’s residence was used to
hide the drugs. They did four to six deals to-
gether, involving a total of approximately five
pounds of methamphetamine.
McMillan testified that on November 26, he
drove with Arnold to the hotel where O’Neal

-- 1 of 13 --

2
was staying and that he met with O’Neal alone
while Arnold remained in McMillan’s vehicle.
After obtaining approximately a pound of
methamphetamine and some marijuana,
McMillan returned to his truck and either
concealed the drugs under the cup holder in
the center console himself, or gave them to
Arnold to put away.
Surveillance officers observed McMillan’s
drug buy and advised another officer to stop
McMillan’s truck. After the officer turned on
his siren, McMillan drove another two miles
while he and Arnold discussed what they were
going to doSSincluding a possible plan for Ar-
nold to run into the adjacent woods to dispose
of the narcotics. The officer observed that
McMillan and Arnold appeared very nervous
after the stop. After arresting McMillan, the
officer searched the truck and discovered the
narcotics under the center console.
The district court instructed the jurors on
the elements of a controlled substances con-
spiracy under § 846:
For you to find the defendant guilty of this
crime, you must be convinced that the gov-
ernment has proved each o f the following
beyond a reasonable doubt:
First: That two or more persons, directly or
indirectly, reached an agreement to possess
with intent to distribute methamphetamine;
Second: That the defendant knew of the
unlawful purpose of the agreement; and
Third: That the defendant joined in the
agreement wilfully, that is, with the intent
to further its unlawful purpose.
After explaining some other details regarding
a conspiracy charge, the court set forth the el-
ements of the underlying charge of possession
of methamphetamine with the intent to distrib-
ute charge under 21 U.S.C. § 841(a)(1):
For you to find the defendant guilty of this
crime, you must be convinced that the gov-
ernment has proved each of the following
beyond a reasonable doubt:
First: That the defendant knowingly pos-
sessed a controlled substance;
Second: That the substance was in fact
methamphetamine; and
Third: That the defendant possessed the
methamphetamine with the intent to dis-
tribute it.
The quantity of drugs involved was not men-
tioned until the very end, in a different sec-
tionSSoutside the description of a § 841(a)(1)
chargeSSin which the court stated:
If you find the defendant guilty of the One
Count indictment, you must respond to
some questions to decide whether the
crimes involved certain quantities of drugs
which are referred to in the criminal statute.
In answering these questions, as in deciding
your verdict, you must be unanimous, and
in order to decide that the count involved a
certain quantity of drugs you must be satis-
fied that the government has proven that
quantity by proof beyond a reasonable
doubt. The term quantity means the total
weight of any mixtures or substances which
contain a detectable amount of the drug
charged. In making this decision, you
should consider all drugs which members of
the conspiracy actually distributed or in-
tended t o distribute as part of the alleged
conspiracy.

-- 2 of 13 --

3
The last sentence in the quantity instruction
initially read: “In making this decision, you
should consider all drugs which members of
the conspiracy actually distributed or intended
to distribute,” omitting “as part of the alleged
conspiracy” at the end. Arnold objected, wish-
ing for the instruction to include reference to
the indictment,1 because he was worried about
the jury’s considering evidence that was pre-
sented regarding drug transactions outside of
the conspiracy that was found to be admissible
under Federal Rule of Evidence 404(b).
The government acknowledged that the
similar-acts evidence was outside the scope of
conspiracy and not to be considered by the
jury. The government expressed concern,
however, that the modification requested by
Arnold might mislead the jury into thinking
that it could consider only the drug quantities
alleged in the overt-acts portion of the indict-
ment. The government considered such a
reading to be incorrect, because the jury could
consider any drug quantitiesSSeven if not al-
leged in the indictmentSSso long as it found
beyond a reasonable doubt that they were part
of the conspiracy.
The court rejected the specific wording
suggested by Arnold, but noting the concern
Arnold had expressed, the court appended the
words “as part of the alleged conspiracy” to
the end of the instruction.2 Arnold preserved
his objection.
The verdict form included three interroga-
tories. In the first, the jury indicated that it
found Arnold “guilty” of the offense charged
in count 1 (the § 841(a)(1) conspiracy
charge). The second asked that if the jury
found in the first question that Arnold was
guilty, if they then “unanimously agree, by
proof beyond a reasonable doubt, that the
quantity of methamphetamine which was dis-
tributed and/or distributed as part of the con-
spiracy was 500 grams or more.” The jury
checked “No.” The last question inquired: “If
you do not find that the quantity of metham-
phetamine which was manufactured, distrib-
uted and/or intended to be distributed as part
of the conspiracy was 500 grams or more,
what quantity do you find was proven beyond
a reasonable doubt?” The jury wrote “456.88
grams” in the blank that followed.
Based on the jury’s findings, the court en-
tered a judgment of conviction for a metham-
phetamine distribution conspiracy involving
fifty grams or more. The court denied Ar-
nold’s motion for a new trial under Federal
Rule of Criminal Procedure 33(a), and sen-
tenced Arnold to sixty-three months’ impris-
onment.
II.
Arnold brings two challenges to the in-
structions. He alleges that the district court
erred by (1) not including lesser-included of-
fenses in the jury charge and (2) omitting
language stating that drug quantities should be
found “as alleged in the indictment.” We ex-
amine each in turn.
1 Arnold wished for the instruction to read as
follows: “In making this decision, you should con-
sider all drugs which members of the conspiracy
actually distributed or intended to distribute, as
alleged in the indictment.”
2 The court stated that its goal was to “find
some language that, as [the defendant was] talking
about, cabins this to what’s alleged in the indict-
(continued...)
2(...continued)
ment without restricting it to the overt acts.”

-- 3 of 13 --

4
A.
Arnold argues that the district court erred
in not including instructions on lesser-included
offenses, including (1) conspiracy to possess
with the intent to distribute at least fifty grams
of a mixture of a substance containing a de-
tectible amount of methamphetamine, 21
U.S.C. § 841(b)(1)(B)(viii); (2) conspiracy to
possess with the intent to distribute less than
fifty grams of a mixture of a substance con-
taining a detectible amount of methamphet-
amine, id. § 841(b)(1)(C); or (3) simple pos-
session of a controlled substance, id. § 844(a).
We address that contention below.
1.
The parties dispute the standard of review
applicable to this challenge. Arnold asserts he
properly objected, so we should review the de-
nial of the lesser-included offenses for abuse of
discretion; the government reasons that we
should review for plain error because Arnold
did not adequately object. Arnold claims he
objected when he requested that the charge
require the jury to find quantity “as alleged in
the indictment.” Although he acknowledges
that the request “did not specify the remedy of
lesser included instructions,” he claims we
should construe it as such because the chal-
lenge would have “brought the issue of lower
offenses to the trial court’s attention.”
We side with the government on this stan-
dard-of-review issue, so we review for plain
error, because Arnold’s objection was not
specific enough to bring this alleged error to
the court’s attention.3 Although the objection
to the form of the instruction broadly dealt
with the issue of drug quantities, and different
quantity findings support different lesser-
included offenses, the objection that was made
sought to narrow the grounds for conviction
(by adding the limiting language “as alleged in
the indictment”), whereas a request for lesser-
included offenses seeks to broaden grounds for
conviction by giving the jury more options for
returning a guilty verdict.
Under the plain error standard, we may not
correct an error that the defendant failed to
raise unless “there is (1) error, (2) that is
plain, and (3) that affects substantial rights.”
United States v. Cotton, 535 U.S. 625, 631
(2002) (internal citations omitted). “If all
three conditions are met an appellate court
may then exercise its discretion to notice a
forfeited error but only if (4) the error seri-
ously affects the fairness, integrity or public
reputation of judicial proceedings.” Id. (inter-
nal citations omitted).
2.
“We consider whether the jury instruction,
taken as a whole, is a correct statement of the
law and whether it clearly instructs jurors as to
the principles of law applicable to the factual
issues confronting them.” United States v.
Guidry, 406 F.3d 314, 321 (5th Cir. 2005)
(citing United States v. Daniels, 281 F.3d 168,
183 (5th Cir. 2002)). The denial of a re-
quested jury instruction amounts to reversible
error only if three conditions are met:
“(1) [T]he [requested] instruction is substan-
tively correct ; (2) it is not substantially cov-
3 See United States v. Krout, 66 F.3d 1420,
1434 (5th Cir. 1995) (finding that an imprecise ob-
jection is insufficient to preserve claimed error for
review); United States v. Heath, 970 F.2d 1397,
1407 (5th Cir. 1992) (reviewing under plain error
(continued...)
3(...continued)
standard where defendant objected to instruction
before district court on different grounds, noting
that “[a] party may not state one ground when
objecting to an instruction and attempt to rely on a
different ground for the objection on appeal”).

-- 4 of 13 --

5
ered in the charge actually given to the jury;
and (3) it concerns an important point in the
trial so that failure to give it seriously impairs
the defendant’s ability to present a given de-
fense effectively.” United States v. Hunt, 794
F.2d 1095, 1097 (5th Cir. 1986).
The first prong of the Hunt test is not con-
tested; the government concedes that Arnold
was eligible to be convicted of a lesser-in-
cluded offense (for, after all, he was found to
be convicted on a lesser-included offense than
that for which he was indicted). Lesser-in-
cluded offense instructions are substantively
correct in this case.
Arnold’s claim fails, however,4 because the
charge given did in fact substantially cover Ar-
nold’s eligibility to be convicted of a lesser-in-
cluded offense. The lesser-included offenses
for which Arnold claims eligibility involve
lower amounts of drugs attributable to the
scope of the conspiracy, and that was ade-
quately addressed by the special interrogatory
that asked the jury to indicate the total amount
of drugs it believed were shown, beyond a rea-
sonable doubt, to be within the scope of the
conspiracy. This approach SSusing a special
interrogatory to determine drug quantitySSis
endorsed in the note to Fifth Circuit Pattern
Instruction § 2.89, and we find its use appro-
priate.5
B.
Arnold claims the district court erred by
omitting instructions from the charge that
quantities should be found “as alleged in the
indictment.” Because Arnold properly object-
ed to the refusal to give the instruction, we re-
view for abuse of discretion. See Guidry, 406
F.3d at 321; see also Daniels, 281 F.3d at
183.
Arnold wanted the court to instruct the jury
to consider all drugs that members of the
conspiracy distributed or intended to distribute
“as alleged in the indictment” instead of the
language the court used, “as part of the alleged
conspiracy.” In the district court, Arnold as-
serted that his requested language was neces-
sary because otherwise, in reaching its deter-
mination of quantity, the jury might prejudi-
cially consider similar acts evidence of drug
transactions outside of the charged conspiracy
4 Because Arnold’s claim fails at this level, we
do not need to consider the third prong of the Hunt
test.
5 According to the note,
[t]he fourth element, prompted by the Apprendi
doctrine, is required when the indictment alleges
a quantity that would result in an enhanced
penalty under 21 U.S.C. § 841(b). Generally,
(continued...)
5(...continued)
the exact quantity of the controlled substance
need not be determined so long as the jury
establishes a quantity at or above a given base-
line amount in the appropriate subsection of §
841(b). For example, in a marijuana case, if
the amount is determined to be at least 100
kilograms, the maximum sentence would be the
same for any amount up to 999 kilograms.
However, if there is a fact dispute as to whether
the amount is above or below a particular
baseline (e.g., 100 kilograms of marijuana
versus 99 kilograms), the court may consider
submitting the higher amount in the fourth
element, accompanied by a Lesser Included Of-
fense instruction, No. 1.33, for the lower
amount. Alternatively, the court may sub-
stitute for the fourth element a special inter-
rogatory on the verdict form asking the jury to
determine the exact amount of the controlled
substance.”
(Emphasis added.) (Internal citations omitted.)

-- 5 of 13 --

6
that was admissible under rule 404(b) for
showing motive, knowledge or intent.
Although Arnold is correct in noting that
the jury could not consider quantities outside
the conspiracy alleged in the indictment, his
concern was adequately and substantially cov-
ered by the instruction’s limitation that only
quantities the jury found beyond a reasonable
doubt to be “part of the alleged conspiracy”
could be considered. In fact, the instruction
eliminated the risk, highlighted by the govern-
ment before the district court, of confusing the
jury into thinking it was cabined into consider-
ing only the specific drug quantities mentioned
in the overt acts section of the indictment,
contrary to law.6 Arnold’s proffered instruc-
tion appears only to be a small variance in
word choice from that given by the district
court and is not error.7
III.
Arnold brings two challenges to the specific
conviction that the district court adjudged
after it received the completed jury verdict
form. He contends the court erred by (1)
convicting and imposing sentence for a lesser-
included offense that was not submitted to the
jury; and in the alternative, (2) failing to enter
conviction and assess punishment at the maxi-
mum for the least severe offense, because the
verdict was ambiguous as to the offense of
conviction. We examine each in turn.
A.
Arnold argues that the court erred in enter-
ing a conviction for conspiracy to possess with
intent to distribute at least fifty grams of a
mixture of a substance containing a detectible
amount of methamphetamine, where (1) a con-
spiracy to distribute at least 500 grams was al-
leged in the indictment; (2) the jury explicitly
found that the government had failed to prove
beyond a reasonable doubt that more than 500
grams were attributable to the alleged conspir-
acy; and (3) there was lack of an instruction
for the lesser-included offense of which Arnold
was ultimately convicted. Arnold concedes
that we review his claim for plain error, be-
cause he did not object on these grounds.
Arnold’s claim fails, because as we have
discussed, the lesser-included offenses were
necessarily included in the jury charge through
the special interrogatory that asked the jury to
declare the amount of methamphetamine it be-
lieved the government had proved, beyond a
reasonable doubt, was part of the alleged con-
spiracy. The jury returned a finding of
“456.88 grams,” which obviously is greater
than 50 grams. The district court did not err
in entering a conviction for at least fifty grams,
because the jury plainly found that the govern-
ment had proved the elements of the § 846
conspiracy beyond a reasonable doubt, includ-
ing a finding that at least fifty grams were
involved in the underlying substantive nar-
cotics offense.
B.
Arnold alternatively argues that the court
erred by failing to assess punishment for the
least severe offense because of alleged ambi-
guity in the verdict as to the offense of convic-
6 United States v. Wilson, 657 F.2d 755, 763
(5th Cir. Unit A Sept. 1981) (“[T]he government is
not limited in its proof of a conspiracy to the overt
acts alleged in the indictment.”).
7 See United States v. Hudson, 982 F.2d 160,
162 (5th Cir. 1993) (finding no error for the dis-
trict court to reject the exact requested wording
where the issue is already covered).

-- 6 of 13 --

7
tion.8 We review for plain error because
Arnold did not object to this alleged error in
the district court.
Arnold claims that ambiguity exists because
of an inherent contradiction between the jury’s
responses to the first two interrogatories. In
response to the first question, the jury found
Arnold “Guilty” of “the offense charged in
Count 1.” Count 1 alleged a conspiracy “to
distribute five hundred (500) grams or more”
of methamphetamine, so Arnold contends that
the response to the first interrogatory included
as a necessary jury finding that at least 500
grams were found to be part of the conspiracy
beyond a reasonable doubt, because the quan-
tity of drugs is an element of a § 841 offense.9
Then, Arnold points to the response to the
second interrogatory, in which the jury indi-
cated that it did not find, beyond a reasonable
doubt, that the quantity of methamphetamine
that was distributed and/or intended to be dis-
tributed as part of the conspiracy was 500
grams or more. Arnold asserts that this con-
tradiction establishes ambiguity, and the court
should not have sentenced him to more than
the highest potentially applicable maximum
sentence, one year’s imprisonment for simple
possession of a controlled substance under
§ 844(a).
We reject this contention, because there is
no inconsistency once the verdict form is
closely scrutinized alongside the jury instruc-
tions. In explaining the elements of a § 841
offense, the court only enumerated three ele-
ments in the jury charge:
First: That the defendant knowingly pos-
sessed a controlled substance;
Second: That the substance was in fact
methamphetamine; and
Third: That the defendant possessed the
methamphetamine with the intent to dis-
tribute it.
Despite the fact that quantity is an element
of the offense under Doggett, the jury was not
aware of that when it responded to the first
question, regarding whether Arnold was guilty
of being a member of a conspiracy to violate §
841. Rather, the jury was instructed that the
quantity of drugs was something that was to
be considered only after it determined guilt
under § 841.10
Though the jury form and instructions were
incorrect to assert that Arnold was technically
guilty of violating § 841 without a finding re-
garding drug quantities beyond a reasonable
doubt, the jury was not aware of this, which
explains the alleged ambiguity. Reading the
8 See United States v. Conley, 349 F.3d 837,
840 (5th Cir. 2003) (“[W]here a jury verdict is am-
biguous, a sentence imposed for a conviction on a
count charging violations of multiple statute or
provisions of statutes may not exceed the lowest of
the potentially applicable maximums . . . .”); see
also United States v. Cooper, 966 F.2d 936, 940
(5th Cir. 1992).
9 See United States v. Doggett, 230 F.3d 160,
164 (5th Cir. 2000) (holding that drug quantity
under § 841(b) is an element of a § 841 offense,
despite Congressional intent otherwise, based upon
Apprendi v. New Jersey, 530 U.S. 466 (2000)).
10 According to the jury instructions, “[i]f you
find the defendant guilty of the One Count indict-
ment, you must respond to some questions to de-
cide whether the crimes involved certain quantities
of drugs which are referred to in the criminal stat-
ute.”

-- 7 of 13 --

8
jury form in this light, the jury never made a
finding, explicit or implicit, that the drug quan-
tity involved in the alleged conspiracy ex-
ceeded 500 grams; rather, it found (1) conspir-
acy as to the first three elements of a § 841
offense in the first interrogatory; (2) that there
was not 500 grams or more of methamphet-
amine involved in the alleged conspiracy
through its response to the second interroga-
tory; and (3) that there was at least 50 grams
involved in the conspiracy by stating that the
government had proved, beyond a reasonable
doubt, that 456.88 grams of methamphetamine
was attributable to the conspiracy. Arnold’s
claim fails, because there is no ambiguity that
the jury found that all four elements of a § 841
charge were proven for a methamphetamine
conspiracy that involved at least 50 grams.
IV.
Arnold brings two challenges to the suffi-
ciency of the evidence. He asserts (1) that he
is entitled to a judgment of acquittal because
the evidence was insufficient to prove a con-
spiracy; or alternatively (2) that he is entitled
to a new trial based on his claim that the
weight of the evidence does not support his
conviction.
A.
Arnold argues that the evidence was insuf-
ficient to support his conviction of conspiracy
to possess with intent to distribute a controlled
substance under § 846. In resolving a suffi-
ciency of the evidence claim, we must decide
whether a rational trier of fact could have
found that each element of the charged crimi-
nal offense was proven beyond a reasonable
doubt. See United States v. Ortega Reyna,
148 F.3d 540, 543 (5th Cir. 1998). We con-
sider all the evidence in a light most favorable
to the government, drawing all inferences and
credibility choices in its favor. Id.
To establish a narcotics conspiracy, the
government has the burden to prove the fol-
lowing three elements beyond a reasonable
doubt: (1) an agreement between two or more
persons to violate the narcotics laws; (2) the
defendant’s knowledge of the agreement; and
(3) the defendant’s voluntary participation in
the conspiracy. United States v. Thomas, 348
F.3d 78, 82 (5th Cir. 2003), cert. denied, 540
U.S. 1207 (2004). Arnold contests the suffi-
ciency of the evidence only as to the third
element.
We reject Arnold’s claim, because the gov-
ernment produced sufficient evidence that, if
believed by the jury, demonstrated that he vol-
untarily participated in the conspiracy. McMil-
lan testified that he agreed with Arnold to buy
methamphetamine from O’Neal and split the
profits. He also testified that as they were
being stopped by the authorities, they plotted
about hiding the drugs. Other circumstantial
evidence supported Arnold’s voluntary partic-
ipation in the charged narcotics conspiracy.
Patrick Combies testified that McMillan gave
money to Arnold and that Arnold urged Mc-
Millan to get up and “get this taken care of”
on the morning of the day of their arrest.
Arnold is correct to assert that mere pres-
ence and nervousness are insufficient to estab-
lish voluntary participation in a conspiracy,11
but the evidence indicated more than that.
McMillan testified that he and Arnold had an
explicit agreement to procure and sell meth-
amphetamine, which, alongside the other evi-
dence regarding Arnold’s presence and behav-
ior, was sufficient to prove that an illicit agree-
11 See United States v. Tenorio, 360 F.3d 491,
495 (5th Cir.), cert. denied, 124 S. Ct. 2899, and
cert. denied, 124 S. Ct. 2900 (2004).

-- 8 of 13 --

9
ment existed.12
Arnold argues that the jury found that the
evidence only demonstrated presence and
knowledge of the conspiracy, pointing to a
question submitted by the jury asking whether
knowledge alone is sufficient to establish a
conspiratorial agreement. The fact that the
jury submitted this question does not, how-
ever, show that the jury found that the evi-
dence only demonstrated knowledge and pres-
ence, because the jury was then correctly in-
structed on the requirements for finding a con-
spiratorial agreement.13 After being properly
instructed on the law, we assume the jury
obeyed its duty to find that all the elements
were satisfied beyond a reasonable doubt,
including the agreement element, which could
have been found by a rational jury based on
McMillan’s testimony.
Arnold also contends we should disregard
McMillan’s testimony because he was a co-de-
fendant whose testimony was directly con-
tradicted by other evidence. As long as it is
not factually impossible or incredible, co-con-
spirator testimony is acceptable, even standing
alone, to support a verdict.14
Arnold asserts that McMillan’s testimony
about the method of storing the methampheta-
mine (placing it under the console through the
cupholder) was shown to be factually impossi-
ble based on an alleged obstruction demon-
strated in videotape evidence. The district
court, however, explicitly found that the vid-
eotape did not conclusively demonstrate that
such an obstruction existed.
Evidence that may cast doubt on the cred-
ibility of testimony does not render it factually
impossible, and it is the province of the jury to
make such credibility determinations.15 More-
over, even if Arnold is correct that evidence on
the record plainly contradicts his testimony
about the method in which the drugs were
concealed in the vehicle, that only dealt with
one small aspect of his incriminating testimony
and does not negate his testimony regarding
the previous agreement that was made jointly
to obtain methamphetamine, sell it, and split
12 Id. (“An agreement may be inferred from a
concert of action, and presence along with other
evidence can be relied on to find conspiratorial ac-
tivity by the defendant.”) (internal citations omit-
ted).
13 In response to the question, the jury was dir-
ected to the original jury instructions, a response
that is acceptable if it contains an accurate state-
ment of the law. See, e.g., United States v. Val-
diosera-Godinez, 932 F.2d 1093, 1098 (5th Cir.
1991) (finding that where court was assumed to
have referred jury to accurate written charge in
response to question, conviction not infirm because
of alleged confusion). This is true here, where the
instructions stated that an element of the crime was
that “the defendant joined in the agreement wil-
fully,” and noted that, “[m]ere presence at the
scene of the event, even with knowledge that a
crime is being committed, or the mere fact that
certain persons may have associated with each
other and may have assembled together and dis-
cussed common aims and interests, does not nec-
essarily establish proof of the existence of a con-
spiracy.”
14 United States v. Medina, 161 F.3d 867, 872-
73 (5th Cir. 1998) (“As long as it is not factually
insubstantial or incredible, the uncorroborated
testimony of a co-conspirator, even one who has
chosen to cooperate with the government in ex-
change for non-prosecution or leniency, may be
constitutionally sufficient evidence to convict”)
(internal citations omitted).
15 See United States v. Schuchmann, 84 F.3d
752, 756 (5th Cir. 1996).

-- 9 of 13 --

10
the profits.16 The evidence is sufficient.
B.
Arnold alternatively argues that even if the
evidence could sufficiently support the verdict,
he is nevertheless entitled to a new trial be-
cause the verdict was so irrational that it gives
rise to a manifest injustice. We review the
denial of a new trial for abuse of discretion.17
A court may grant a new trial if it is re-
quired in the interests of justice. See FED. R.
CRIM P. 33(a). The trial judge may weigh the
evidence and assess the credibility of the wit-
nesses in considering the motion. See Robert-
son, 110 F.3d at 1117 (citing Tibbs v. Florida,
457 U.S. 31, 37-38 (1982)). Although a dis-
trict court has broad discretion, it is not limit-
less, and it “may not reweigh the evidence and
set aside the verdict simply because it feels
some other result would be more reasonable.”
Id. at 1118. “The evidence must preponderate
heavily against the verdict, such that it would
be a miscarriage of justice to let the verdict
stand.” Id.18
1.
Arnold first argues that a new trial is war-
ranted by pointing to evidence that casts doubt
on McMillan’s inculpatory testimony. Al-
though this argument might have been appro-
priate in the district court in connection with a
rule 33 new trial motionSSbecause that court
has the authority to make its own determina-
tion regarding the credibility of witnessesSSit
is inappropriate in this court, because we do
not have such authority on appellate review.19
The district court did not abuse its discretion
by accepting the jury’s assessment of the cred-
ibility of the witnesses to deny a new trial on
the ground that the verdict was against the
weight of the evidence. See Dula, 989 F.2d at
779.
2.
Next, Arnold proceeds to present a list of
four “peculiar” factors that are part of the
reco rd on appeal and that he believes estab-
16 Arnold argues that the fact that the jury re-
sponded to the interrogatory regarding the amount
of drugs attributable to the conspiracy with the ex-
act amount of methamphetamine located in the ve-
hicle on the date of his arrest demonstrates that the
jury did not believe that Arnold was part of the
narcotics conspiracy before that dateSSand thus the
only incriminating part of McMillan’s testimony
that should be considered on our sufficiency review
involves the actions on the date of arrest. This is
incorrect; the fact that the jury may have found that
the government was only able to attribute, beyond
a reasonable doubt, the drugs found at arrest to
the conspiracy is not inconsistent with testimony
that an agreement was formed at a previous date to
obtain and sell drugs.
17 See United States v. Infante, 404 F.3d 376,
387 (5th Cir. 2005); see also United States v.
Robertson, 110 F.3d 1113, 1118 (5th Cir. 1997).
18 See United States v. Sinclair, 438 F.2d 50,
51 n.1 (5th Cir. 1971) (“[T]he power to grant a
new trial . . . should be invoked only in exceptional
cases in which the evidence preponderates heavily
against the verdict.”).
19 United States v. Tarango, 396 F.3d 666, 672
(5th Cir. 2005) (“In our capacity as an appellate
court, we must not revisit evidence, reevaluate
witness credibility, or attempt to reconcile seem-
ingly contradictory evidence”) (citing United States
v. Dula, 989 F.2d 772, 778-79 (5th Cir. 1993)).
This rule is sensible: The jury in the first instance,
and the district court on rule 33 review , were in
superior positions to evaluate the credibility of the
witnesses, because they were able to observe their
demeanors. See United States v. Valentine, 401
F.3d 609, 614 (5th Cir. 2005), cert. denied, 2005
U.S. LEXIS 4707 (U.S. June 13, 2005).

-- 10 of 13 --

11
lished the extraordinary circumstances that jus-
tify a new trial under rule 33(a). We examine
each in turn.
First, Arnold thinks it peculiar that he was
found guilty of the conspiracy charge; he
claims the jury “obviously” did not believe the
“great majority” of McMillan’s testimony, as
exhibited by (1) the quantity determination in
the special interrogatory and (2) the fact that
the jury questioned his testimony about how
Arnold helped him conceal the drugs by revis-
iting the videotape depicting where the drugs
were found. The fact that the jury answered
the special interrogatory with a drug quantity
that only included the amount of drugs seized
at the time of arrest does not necessarily mean
the jury discredited most of McMillan’s testi-
mony; it rationally could have believed most of
the testimony but merely thought that the
government failed to prove beyond a reason-
able doubt the other quantities of drugs to
which McMillan testified, because the actual
drugs were not admitted as evidence, and Mc-
Millan only gave an estimate as to the amount
of drugs that were involved in previous trans-
actions.
Similarly, the fact that the jury closely scru-
tinized a certain piece of evidence is not pecu-
liar; instead, it can be a sign that the jury was
fulfilling its duty to review the evidence close-
ly. It does not undermine the ultimate finding
that Arnold was guilty beyond a reasonable
doubt.
Second, Arnold states that McMillan’s tes-
timony claiming that he helped him conceal the
drugs should be disregarded as factually im-
possible. This claim should be disregarded,
because as we have said, the district court did
not abuse its discretion in finding that the vid-
eotape did not conclusively show that McMil-
lan’s testimony was factually impossible.
Next, Arnold points to the fact that the jury
was confused on the law of conspiracy as a
result of its “futile” request for clarification
during deliberations. The assertion that the
request was futile is without merit; the district
court appropriately instructed the jury to look
at the initial charge, which, as we have said,
was sufficient. The court certainly did not
abuse its discretion by denying a new trial on
this gro und; it was not peculiar that the jury
asked for a clarification on an issue of law,
something it is entitled to do.
Finally, Arnold asserts that the jury was
confused by the verdict form, as demonstrated
by the allegedly contradictory findings of guilt
on the charged offense and a quantity finding
corresponding to a lesser-included offense. As
we have discussed, this assertion is without
merit; the findings were not inconsistent when
viewed in light of the context of the jury in-
structions. The district court did not abuse its
discretion in accepting the verdict and denying
a new trial.
V.
Arnold claims his sentence is infirm under
United States v. Booker, 125 S. Ct. 738
(2005). He concedes that we review this claim
for plain error, because he did not object on
this ground.20
The district court’s actions did not consti-
tute Booker error at all, because Arnold’s sen-
tence was authorized solely based on facts
found by a jury beyond a reasonable doubt.
The district court did not engage in any fact-
finding that increased Arnold’s sentencing
20 See Guidry, 404 F.3d at 322 (reviewing
Booker error under plain error standard where
defendant failed to object on Apprendi/Blakely
Sixth Amendment grounds at sentencing).

-- 11 of 13 --

12
range. The jury’s explicit finding that the con-
spiracy involved 456.88 grams of methamphet-
amine authorized a base offense level of 30,
which was adopted by the court in calculating
Arnold’s sentencing range. See U.S.S.G. §
2D1.1(a), (c)(5).21 For there to be Sixth
Amendment error under Booker, the judge
must find facts not admitted by the defendant
or found by a jury beyond a reasonable doubt,
that increases the maximum potential sen-
tence.22
In the absence of Sixth Amendment error,
the most that Arnold could properly argue is
that he nonetheless is entitled to be sentenced
under an advisory, instead of mandatory,
guideline regime. “Technically, this is a “Fan-
fan error, not a Booker error.” United States
v. Martinez-Lugo, 2005 U.S. App. LEXIS
10432, at *5 (5th Cir. June 7, 2005) (per
curiam) (referring to Ducan Fanfan, the second
defendant in the consolidated opinion in
Booker). See United States v. Villegas, 404
F.3d 355, 364 (5th Cir. 2005) (per curiam)
(discussing the difference between Booker and
Fanfan error).
Assuming there is Fanfan error here, the
third prong of the plain-error test requires,
under Mares, that “the defendant rather than
the government bears the burden of persuasion
with respect to prejudice.” Mares, 402 F.3d at
521 (citing United States v. Olano, 507 U.S.
725, 734 (1993)).23 To show t hat his sub-
stantial rights are affected, Arnold would have
to “point[] to . . . evidence in the record sug-
gesting that the district court would have im-
posed a lesser sentence under an advisory
guidelines system.” United States v. Taylor,
409 F.3d 675, 677 (5th Cir. 2005) (per
curiam) (citations omitted). In other words,
“the pertinent question is whether [the defen-
dant] demonstrated that the sentencing
judgeSSsentencing under an advisory scheme
rather than a mandatory oneSSwould have
reached a significantly different result.”
Mares, 402 F.3d at 521. To meet this stan-
dard, the proponent of the error must demon-
strate a probability “sufficient to undermine
confidence in the outcome.” United States v.
Dominguez Benitez, 542 U.S. 74, __, 124 S.
Ct. 2333, 2340 (2004).
21 The guidelines, U.S.S.G. § 2D1.1(c)(5),
authorize a base offense level of 30 where the
amount of methamphetamine is “[a]t least 350 G
but less than 500 G.”
22 See, e.g., United States v. Mares, 402 F.3d
511, 520-21 (5th Cir. 2005) (finding Booker error,
although not plain, where “[the defendant’s] sen-
tence was enhanced based on findings made by the
judge that went beyond the facts admitted by the
defendant or found by the jury. The jury found
that [the defendant], a felon, possessed ammuni-
tion. The judge enhanced the sentence based on a
finding that his finding that [the defendant] was
involved in a felony when he committed the of-
fense. [The defendant] has therefore established
Booker error”), petition for cert. filed (Mar. 31,
2005) (No. 04-9517); see also Guidry, 406 F.3d
at 323.
23 A showing of prejudice is required, because
we have determined that Booker error is not struc-
tural error that would require no showing of preju-
dice. United States v. Muhammad, 2005 U.S.
App. LEXIS 9078, at *3 (5th Cir. May 18, 2005)
(per curiam) (unpublished). “[W]e reject [the]
argument that Booker error is structural and in-
susceptible to harmless error analysis, and that
Booker error should be presumed prejudicial, as
both claims are in conflict with Mares.” United
States v. Malveaux, 2005 U.S. App. LEXIS 5960,
at * 4 n.9 (5th Cir. Apr. 11, 2005) (per curiam).
Neither Booker error nor Fanfan error is struc-
tural. Martinez-Lugo, 2005 U.S. App. LEXIS
10432, at *8.

-- 12 of 13 --

13
Arnold has made no such showing, so the
prejudice prong is not satisfied. He points
only to stray remarks that show that the court
had some sympathy for his situation, but this
does not demonstrate that Arnold’s substantial
rights were affected by the imposition of sen-
tence under the mistaken understanding that
the guidelines were mandatory. His sentence
in fact was reduced from the applicable guide-
line range because the court found that he
played a minimal role in the offense.
AFFIRMED.

-- 13 of 13 --