(caption unavailable)

*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should not be published.
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 92-2504
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
OSCAR SAA and LUIS CARLOS VALENZUELA,
Defendants-Appellants.
Appeal from the United States District Court
For the Southern District of Texas
CR H 91 0216 02
(June 2, 1993)
Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.
PER CURIAM:*
BACKGROUND
The indictment charged appellants Oscar Saa and Carlos
Valenzuela, together with Jerome Bell, Emirio Albornoz, and
Gilberto Montano (a/k/a and hereinafter referred to as "Bianchi")

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with conspiracy to possess and possession of more than five
kilograms of cocaine with intent to distribute. Bell and Albornoz
pleaded guilty on Count One; Bell was a principal government
witness at the trial of Saa and Valenzuela. Bianchi pleaded guilty
on Count Two.
At the trial, Drug Enforcement Administration ("DEA") Special
Agent Keith Jones testified that in September 1991, the DEA
received information from Michael Jackson, a confidential
informant, that Jerome Bell was involved in drug trafficking.
Consequently, on November 25, 1991, Jones had Jackson telephone
Bell at his apartment in Houston. Jackson told Bell that he knew
someone who wanted to purchase seven kilograms of cocaine. Jackson
and Bell agreed to meet at Bell's apartment the following day.
On November 26, about 11:00 a.m., Jackson went to Bell's
apartment (No. 297 at 10700 Fuqua Street) with DEA Special Agent
Charlie Boise and Special Agent Blair, acting undercover. Jackson
introduced Boise to Bell as his uncle, the prospective buyer. Bell
said he would see what he could do for Boise. After making some
phone calls, including one to a person named Rick, Bell told the
others that Rick and a female would bring the seven kilograms of
cocaine to the apartment. Bell decided it was taking too long
for the cocaine to arrive, so that afternoon he telephoned his
friend Bianchi (Gilberto Montano). Bianchi told Bell that he would
call someone and find out if he could obtain the seven kilos for
Bell. After Bell spoke to Bianchi, he told the others that Bianchi
could handle up to ten kilograms of cocaine. Two hours later

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Bianchi had not arrived, so the agents decided to leave. Bell gave
Jackson a beeper and told him he would contact him when his source
arrived.
At approximately 2:45 p.m., Saa, Valenzuela, Bianchi, and
Albornoz arrived at Jackson's apartment complex in a white Geo
Prism rental car as to which Saa was an authorized driver.
Bianchi, Saa, and Valenzuela went to Bell's apartment; Albornoz
remained in the car.
Bianchi asked Bell if his people still wanted the cocaine;
Bell told him they did. Bianchi then made a phone call and Saa
made two phone calls, using his own cellular telephone. Both men
spoke in Spanish. Valenzuela was in the room when the calls were
made, but he did not say anything. After making his first phone
call, Saa told Bell in English that someone was going to bring five
kilograms and that he was going to call someone else to try to
obtain the other two. Saa made the second call, then he directed
Valenzuela in Spanish to go get the two kilograms, as he told Bell;
and Valenzuela left.
Valenzuela and Albornoz left Bell's apartment in the Geo
Prism. Officers conducting surveillance followed them to townhouse
56 of a building complex at 12400 Brookglade Circle. Saa and
Valenzuela entered the townhouse; about 15 minutes later, a man and
a woman arrived and also entered it. Shortly thereafter,
Valenzuela and Albornoz left. Albornoz apparently was carrying
something under his jacket.

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At approximately 3:30, Bell paged Jackson and told him that
Bianchi had arrived and was supposed to pick up the five kilograms
of cocaine. About 30 minutes after Valenzuela and Albornoz left to
get the two kilograms, Saa received a call on his cellular
telephone at Bell's apartment. Saa told Bell that the people with
the cocaine had lost their way. Saa, Bianchi, and Bell then got
into Bell's gold Datsun 280ZX and went looking for them. After
locating them riding in a Ford Escort, Saa waved at the driver.
The Escort then followed Bell's Datsun back to Bell's apartment.
About 4:00 p.m., the agents returned to Bell's apartment, but
he was not there. They took Tracy Rambo, Bell's common-law wife,
to their vehicle and showed her $200,000. The agents saw Bell,
Saa, and Bianchi returning to the apartment complex in Bell's
Datsun as the agents were leaving. The agents did not stop them
because there were not enough agents on surveillance.
Upon returning, Bell and Bianchi entered Bell's apartment; Saa
went to the Escort and spoke with its two male occupants. Inside
the apartment, Bell used his bathroom. When he left the bathroom,
he found a wastebasket on a table in his apartment; Saa also was
there. The wastebasket contained five kilograms of cocaine.
Shortly thereafter, Jackson called Bell, who told him he had
the cocaine. They agreed to do the transaction at a nearby Jack-
in-the-Box restaurant. Bell and Bianchi went to the restaurant,
where Bianchi introduced himself to the agents. When Agent Boise
asked for the cocaine, Bianchi pointed to Bell's Datsun. Boise
opened the door of the vehicle and Jackson removed a waste basket

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from its trunk. After looking in the basket, Boise asked Bell
where the rest of the cocaine was; Bell said the other two pounds
were at his apartment. The agent then gave a prearranged signal
and other law enforcement officers arrested Bell and Bianchi.
Boise, accompanied by other agents and Houston Police
Department officers, immediately went to Bell's apartment. They
found Rambo and Saa in the apartment. After Rambo consented to a
search, the agents found an operable cellular telephone next to
Saa. Records relative to that telephone showed that a call had
been made from it to Bell's apartment on November 26, 1991, at 2:16
p.m. The records also revealed that two calls had been made from
the phone to the Brookglade townhouse, one on November 25, 1991, at
2:58 p.m., and one the next day at 3:08 p.m.
After the search of Bell's apartment, Boise saw the Geo Prism
return to the parking lot of the apartment complex. As agents
approached the vehicle its occupants, Valenzuela and Albornoz,
tried to run away. When they were apprehended, the agents found
two kilograms of cocaine on Albornoz's person. Afterwards,
Valenzuela told an agent that Bianchi had told him to get the two
kilograms from the townhouse.
During a later search of the Brookglade townhouse, a
narcotics-detecting dog gave a positive alert for the odor of
narcotics in a dresser drawer. The cocaine which the agents
recovered from Albornoz and the waste basket weighed 7018.5 grams
and it was 91% pure.
OPINION

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Saa contends that the evidence introduced at his trial was
insufficient to support his convictions. He reasons that without
Bell's testimony, there was insufficient circumstantial supporting
evidence and that Bell's testimony cannot be relied on because it
was incredible as a matter of law. Saa points out that Bell gave
inconsistent testimony at the trial concerning his history of drug
trafficking. He also asserts that Bell's testimony to the effect
that Bell's role in the offense was minor was refuted by other
evidence. Saa notes that Bell's testimony purported to exonerate
Rambo although other evidence indicated that she was a knowing
participant in the transaction. Saa also points out that Bell
received a favorable plea agreement and asserts that he testified
in hopes of a downward departure upon being sentenced.
"The uncorroborated testimony of an accomplice or co-
conspirator will support a conviction, provided that this testimony
is not incredible or otherwise insubstantial on its face." United
States v. Singer, 970 F.2d 1414, 1419 (5th Cir. 1992). This rule
applies even when the accomplice or coconspirator testified
pursuant to a plea agreement with the Government. United States v.
Osum, 943 F.2d 1394, 1405 (5th Cir. 1991).
"[T]estimony generally should not be declared incredible as a
matter of law unless it asserts facts that the witness physically
could not have observed or events that could not have occurred
under the laws of nature." Id. Because "[t]he jury is the
ultimate arbiter of the credibility of a witness," inconsistency in
an accomplice's testimony is insufficient to render it incredible

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as a matter of law. United States v. Lindell, 881 F.2d 1313, 1322
(5th Cir. 1989), cert. denied, 493 U.S. 1087, 496 U.S. 926 (1990).
Saa does not challenge the portions of Bell's testimony that
directly implicated Saa in the offenses. Furthermore, Bell's
testimony concerning Saa's participation was corroborated by Saa's
telephone records, by surveillance agents who observed the
conspirators' trips to and from Bell's apartment, and by the fact
that Albornoz was found to possess two kilograms of cocaine.
Because Saa has not shown that Bell's testimony was incredible as
a matter of law, his challenge to the sufficiency of the evidence
has no merit.
Saa also contends that the district court erred by finding,
for purposes of sentencing, that he was an organizer, leader,
super-visor, or manager relative to offenses of which he was
convicted. Based on that finding, the court increased Saa's total
offense level by two levels pursuant to U.S.S.G. § 3B1.1(c). Saa
argues that statements in his Presentence Report (PSR) are
unreliable, that there was no showing that he was culpable under
the seven factors listed in the commentary to § 3B1.1, and that the
evidence showed that not he but Bianchi was the leader.
The Government was required to prove the facts which would
support the application of § 3B1.1(c) by a preponderance of the
evidence. United States v. Hinojosa, 958 F.2d 624, 633 (5th Cir.
1992). "The determination of manager status demands that the
district court draw an inference from a variety of data, including
the information in the pre-sentence report and the defendant's

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statements and demeanor at the sentencing hearing." United States
v. Mejia-Orosco, 867 F.2d 216, 220-21 (5th Cir.), cert. denied, 492
U.S. 924 (1989). Saa declined to make a statement at his
sentencing hearing. "Whether a defendant was `an organizer,
leader, manager, or supervisor' of the criminal activity is a
question of fact which we review under the clearly erroneous
standard, giving due regard to the trial court's assessment of the
credibility of the witnesses." United States v. Barreto, 871 F.2d
511, 512 (5th Cir. 1989).
The factors that the court may consider in making the
determination "include the exercise of decision making authority,
the nature of participation . . . , the recruitment of accomplices,
. . . and the degree of control and authority exercised over
others." U.S.S.G § 3B1.1, comment. (n.3). However, these factors
are not controlling on the ultimate issue. United States v. Liu,
960 F.2d 449, 456 (5th Cir.), cert. denied, 113 S. Ct. 418 (1992).
The PSR, at ¶ 30, summarizes Saa's role in the offenses based
on information provided by Jackson, the informant, and the Houston
Police Department Narcotics Squad. The probation officer
recommended the increase in Saa's offense level on grounds that
"[i]nvestigative material indicates Oscar Saa was the leader of a
drug-trafficking activity and recruited Carlos Valenzuela and
Emirio Albo[r]noz to deliver cocaine and money for him." PSR at ¶
35. At sentencing, the district court adopted the PSR, overruling
Saa's objection that the evidentiary basis was insufficient.

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Saa now challenges the probation officer's reliance on
Jackson's statement that Saa was the leader as being conclusional
and hearsay. At the sentencing hearing, however, he presented no
evidence that would support a finding that the statement was
unreliable or materially untrue. Under similar circumstances, this
Court has upheld an "organizer" finding. United States v. Chavez,
947 F.2d 742, 746 (5th Cir. 1991). The Court also has held that
unsworn out-of-court statements by informants supported the
district court's "organizer or leader" finding. See United States
v. Kinder, 946 F.2d 362, 369 (5th Cir. 1991), cert. denied, 112 S.
Ct. 1677, 2290 (1992).
Furthermore, the evidence at the trial supported a finding
that Saa rather than Bianchi was the source of the cocaine. At
Bell's apartment Saa, not Bianchi, made two phone calls in
attempting to obtain it. Later, when he and Bianchi went to look
for the lost couriers, it was Saa who pointed out their vehicle and
who directed its driver to follow them. Saa also telephoned the
Brookglade townhouse whence Valenzuela and Albornoz, at Saa's
direction, obtained the two pounds of cocaine and then brought it
to Bell's apartment. Thus, there is ample support in the record
for the district court's finding that Saa was a leader relative to
the narcotics conspiracy.
Valenzuela contends that the district court erred by
sentencing him on the basis of the seven kilograms of cocaine that
was recovered. He asserts that he was responsible only for two
kilograms and that the negotiation by his coconspirators for the

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additional five kilograms was not reasonably foreseeable to him.
Valenzuela admits that the evidence showed that he was in Bell's
apartment when discussions concerning the entire seven kilograms
took place, but he claims that the discussions were in English and
that he understood only Spanish. There is no evidence in the
record, however, that Valenzuela did not understand English.
The "clearly erroneous" standard applies to this Court's
review of the district court's findings concerning the quantity of
drugs involved in an offense. United States v. Kinder, 946 F.2d at
366. "The district court is not limited to considering the amount
of drugs seized or specified in the charging instrument but may
consider amounts that were part of a common plan or scheme to
distribute." United States v. Fuller, 974 F.2d 1474, 1484 (5th
Cir. 1992)(citation omitted). "Furthermore, the guidelines impose
culpability for the purpose of sentencing for criminal activity `in
furtherance of the [conspiracy] . . . that was reasonably
foreseeable by the defendant.' U.S.S.G. § 1B1.3, Application Note
1." United States v. Harris, 932 F.2d 1529, 1538 (5th Cir.), cert.
denied, 112 S. Ct. 270, 324 (1991), 112 S. Ct. 914 (1992).
The probation department rejected Valenzuela's contention by
"reiterat[ing] that according to statements taken from Bell and
Tracy Rambo, [Valenzuela] was present during the negotiations for
the additional five kilograms of cocaine, and should therefore be
held accountable to a total of 7.018 kilograms of cocaine."
At sentencing, the district court adopted the PSR and made
these additional findings: "I don't think that it is relevant that

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he wasn't able to understand all of the conversations in English.
I think he saw what was going on, and I think he had enough
reported to him in English that the guideline appropriately fixes
his position."
The district court's finding that Valenzuela knew that the
object of the conspiracy was to sell seven kilograms of cocaine is
supported by the record. The evidence at trial established that
Valenzuela arrived at Bell's apartment with Saa and Bianchi and
that he was there when Saa made the two calls to obtain the
separate quantities of cocaine. Bell testified that Saa made the
calls in Spanish, Valenzuela's native language. Furthermore, there
is no evidence in the record to show that Valenzuela does not
understand English. Because the district court could reasonably
infer that Valenzuela knew that seven kilograms of cocaine were
involved, its finding is not clearly erroneous.
Valenzuela also contends that because he was a minor
participant in the offense, the district court erred by denying him
a two-level downward adjustment of his offense level pursuant to
U.S.S.G. § 3B1.2. He argues that he was unaware of the total
amount of cocaine involved; that he did not personally negotiate
with Bell as did Saa and Bianchi; that he only acted as a courier
for the two kilograms; and that the record does not show that he
was involved in the daily activities of the (short-lived)
conspiracy.
The defendant bears the burden of demonstrating in the
district court that he is entitled to the minor-participant

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sentence reduction. United States v. Mueller, 902 F.2d 336, 345,
347 (5th Cir. 1990). "A defendant's status as a . . . `minor
participant' is one of several sophisticated factual determinations
which `enjoy the protection of the clearly erroneous standard.'"
United States v. Carr, 979 F.2d 51, 55 (5th Cir. 1992)(quoting
United States v. Mejia-Orosco, 867 F.2d at 221). Thus, the
district court's determination "is entitled to great deference."
United States v. Devine, 934 F.2d 1325, 1340 (5th Cir.), cert.
denied, 112 S. Ct. 349 (1991), 112 S. Ct. 911, 952, 954, 1164, 1197
(1992).
"A defendant's participation is not minor unless he is
`substantially less culpable than the average participant.'
U.S.S.G. § 3B1.2, Comment. (backg'd.)." United States v. Follin,
979 F.2d 369, 375 (5th Cir. 1992). A defendant is not
automatically entitled to minor-participant status because he was
only a courier in a drug transaction. United States v. Nevarez-
Arreola, 885 F.2d 243, 245 (5th Cir. 1989).
The record supports the district court's finding, made by
adopting the PSR, that Valenzuela was at least an average
participant. He accompanied Saa to Bell's apartment, where the
transaction was consummated and Saa contacted his sources for
cocaine. Valenzuela then was charged with the duty of going to get
the two kilograms from the townhouse. Valenzuela was in a superior
position to Albornoz because Valenzuela received orders from Saa
personally and Albornoz took the greater risk in physically
carrying the cocaine from the townhouse. Valenzuela was less

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culpable than Saa and Bianchi, but Saa was a leader and Bianchi may
also have been. See Mueller, 902 F.2d at 345-46. Accordingly,
Valenzuela has failed to show clear error in the district court's
determination that he was not a minor participant.
We AFFIRM the judgment of the district court.

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