(caption unavailable)

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 92-2540
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
WILSON ALFREDO ANDRADE
a/k/a ALFREDO VICTOR,
Defendant-Appellant.
***************************************************************
No. 92-2541
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JORGE IGNACIO PALOMO a/k/a
JORGE IGNACIO PALOMO-NAJARO
Defendant-Appellant.
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No. 92-2543
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JOSE IGNACIO PALOMO a/k/a
JOSE IGNACIO PALOMO-BETETA
Defendant-Appellant.
*****************************************************************
No. 92-2672
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MARK TULIO MANCILLA,
a/k/a
MARCO TULIO MANCILLA-MANCHAME,
Defendant-Appellant.
Appeals from the United States District Court
For the Southern District of Texas
(CR H 91 165 4, CR H 91 165 2, CR H 91 165 01 & CR H 91 0165 09)
(October 22, 1993)

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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should not be published.
3
Before GARWOOD, SMITH, and DeMOSS, Circuit Judges.
PER CURIAM: *
BACKGROUND
A federal grand jury in Houston charged appellants Jose
Ignacio Palomo (Jose), Jorge Ignacio Palomo (Jorge), Wilson Alfredo
Andrade (Andrade), and Marco Tulio Mancilla (Mancilla), as well as
ten other individuals, with conspiring to possess with intent to
distribute more than five kilograms of cocaine (Count 1) and aiding
and abetting possession of more than five kilograms of cocaine
(Count 2). All four appellants pleaded guilty to Count 1, Count 2
was dismissed as to all four, and they received the following
prison sentences: Jose, life; Jorge, 360 months; Andrade, 151
months; and Mancilla, 121 months.
Co-defendant Edgar Rolando Palomo (Edgar) also pleaded guilty,
and he was sentenced to serve 262 months imprisonment, later
reduced to 202 months. This Court affirmed Edgar's conviction and
sentence in a published opinion. United States v. Palomo, 998 F.2d
253, 255-56, 258 (5th Cir. 1993) (Edgar Palomo). Co-defendant Rene
Agusto Rodriguez pleaded guilty and was sentenced to serve 151
months in prison. This Court affirmed Rodriguez's conviction and
sentence in an unpublished opinion. United States v. Rodriguez,

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4
No. 92-2539, slip op. at 1 (5th Cir. Mar. 29, 1993) (copy
enclosed).
Jose headed a cocaine smuggling organization that imported
Colombian cocaine to Houston via Guatemala. Shipments arrived in
Guatemala from Colombia by air, and Jose's Guatemala-based trucking
company transported the drugs through Mexico to Houston.
Rodriguez, No. 92-2539, slip op. at 2.
The operation used tractor-trailers and pickup trucks equipped
with secret fuel tank compartments. The trucks were driven to
Jose's mechanic shop in Houston and unloaded there. At the shop,
the Drug Enforcement Administration (DEA) agents hid a video
camera, which recorded the arrivals of the trucks. The camera also
recorded conspirators cutting up empty gasoline tanks, unloading
cocaine hidden in tanks, carrying packages of cocaine around the
shop, and refitting the tanks. Id. at 2-3.
The DEA estimated that, between July and September 1991,
Jose's organization imported approximately 227 kilograms of cocaine
into the United States. Id. at 3. Agents seized 116 kilograms of
cocaine during the execution of search warrants. Debriefings,
intelligence sources, and related investigations revealed that an
additional 111 kilograms had been transported during the course of
the conspiracy. Edgar Palomo, 998 F.2d at 255.
Jorge, who is Jose's son, was in charge of the shop, which was
located on Harwin Street in Houston. Edgar is another son of Jose.
Edgar Palomo, 998 F.2d at 254.

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5
Jorge participated in the opening of at least one hidden tank
and the removal of cocaine from it. He delivered the cocaine to
Andrade. Id. at 30.
Andrade received the cocaine from Jorge and delivered it to
other co-conspirators. Mancilla worked in the shop and assisted
Jorge in taking cocaine from at least one tank.
OPINION
"Substantial assistance" motions
(Jose, Jorge, Andrade, Mancilla)
As discussed below, each appellant argues that the Government
breached his plea agreement by not filing a motion for downward
departure pursuant to U.S.S.G. § 5K1.1 based on his substantial
assistance. Edgar made the same argument. Edgar Palomo, 998 F.2d
at 256.
With minor differences noted below, all defendants entered
into plea agreements containing the same "substantial assistance"
provision that appeared in Edgar's plea agreement, namely:
The United States will file a motion for downward
departure under Section 5K1 of the Sentencing Guidelines,
should I provide substantial assistance.
I understand that if I am called to testify before
a Grand Jury or a trial jury concerning this information
that I must not only tell the complete truth concerning
any question I am asked, but I must not withhold any
evidence that may relate to the guilt or innocence of any
other person. I know that my response to all questions
whether they be by the Assistant United States Attorney,
the Defense attorney or the U.S. District Judge must be
the truth.
Andrade's agreement, instead of referring to "the complete
truth concerning any question I am asked," reads, "the complete
truth concerning this question I am asked." (Emphasis added).

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6
Mancilla's agreement is identical to the quotation above, except
that inserted between the two paragraphs is a statement of the
Government's agreement that Mancilla's role in the offense was
minimal. No one mentions these differences.
Explanations of the Agreements
Jose and Jorge. Jose and Jorge appeared together for their
guilty plea hearing on February 5, 1992. The court paraphrased the
"substantial assistance" provision quoted above. Jose said that he
understood it. So did Jorge. The Assistant United States Attorney
(AUSA) told the court that the Government agreed not to ask Jose
and Jorge to testify against members of their own family. The
court incorporated that modification into its explanation of the
plea agreement.
Concerning the "substantial assistance" provision, the court
told Jose and Jorge, "I need to tell you several things about that.
First of all, it's up to the Government to decide whether to file
that recommendation. And if the Government doesn't move for
downward departure, I can't do anything about it. You understand
that?" Both said that they did.
"Furthermore," stated the court, "do you understand that if
the Government does move for downward departure, Section 5(K)(1.1)
of the Guidelines, requires that I make an evaluation of the
significance and usefulness of your assistance. After taking into
consideration the Government's evaluation. In other words, even if
the Government moves for downward departure, I don't have to agree
with the Government. Do you understand that?" Both said yes. They

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7
both also said that they understood that if they did not testify
truthfully and completely, the Government would not dismiss the
aiding and abetting count.
Andrade. At Andrade's guilty plea hearing on February 18,
1992, the court read through the plea agreement with him, including
the "substantial assistance" provision quoted above. The court
then told Andrade, "Normally, I cannot depart below a statutory
minimum, in this case ten years. In this case, however, the
Government has said that if you provide substantial cooperation, it
will file a motion to depart under Section 5K1 of the guidelines.
What I want you to understand is, it's up to the Government to
determine whether you have cooperated and whether to file that
departure motion."
After Andrade said that he understood, the court continued,
"Do you further understand that even if the Government thinks
you've cooperated and files the motion, I must also determine that
you have, in fact, cooperated and provided substantial assistance
to the Government." Andrade said that he understood. Later,
Andrade's counsel stated, "It's sort of an option whether or not
[Andrade] will cooperate and the Government will file the 5K."
The court also stated, "[I]f the Defendant provides
substantial cooperation, the Government may, but is not obligated
to, file a motion under Section 5K1.1 for downward departure."
The AUSA agreed that the court interpreted the provision correctly;
the defense did not object.

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8
Mancilla. At Mancilla's guilty plea hearing on February 12,
1992, the court recited portions of his plea agreement, including
the "substantial assistance" provision quoted above. Mancilla
acknowledged his understanding. The judge also told Mancilla that,
even if the Government were to file a 5K1.1 motion, "I'm not
obligated to go along with that recommendation unless I find that
you have in fact rendered substantial assistance to the Government
and have in fact cooperated." Mancilla said that he understood.
Sentencings Without 5K1.1 Motions
At one hearing on July 2, 1992, the court sentenced several of
the co-conspirators, including Jose, Jorge, and Andrade. Mancilla
was sentenced three weeks later.
Jose. Jose was sentenced first. No one mentioned the 5K1.1
motion.
Jorge. Jorge's counsel opened his client's portion of the
sentencing hearing by complaining that Jorge had been debriefed so
long after his guilty plea that the information had no substantial
value to the Government. The AUSA responded that DEA Agent Finece
had debriefed Jorge twice but "there was no substantial assistance,
there's never been any substantial assistance."
Finece's testimony. Finece was called to testify. He
interviewed Jorge twice, with Jose present at one of the meetings.
Jose and Jorge pointed out to Finece a place on a map where they
said cocaine was stored. An agent attempted to find such a place
without success.

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9
Finece also asked Jose the location of cocaine that was
delivered by another co-conspirator. Jose made telephone calls but
apparently provided no further information.
Finece then heard through jailhouse sources that the Palomos
did not wish to talk any further. When Jose's and Jorge's lawyers
asked Finece to interview their clients again, Finece did,
approximately ten days before sentencing, but apparently without
gaining any useful information.
Before debriefing, Finece told Jose and Jorge that cooperation
in four areas would be considered substantial assistance. The
areas are (1) testifying in court, (2) providing substantial
evidence in future cases, (3) assisting in the apprehension of
fugitive co-conspirators, and (4) assisting in the arrest of anyone
else who was involved in their operation.
Jorge did identify to Finece several people whom officials
believed were involved in transporting cocaine. Finece obtained
that information from Jorge by showing him photographs of the
suspects, and Jorge confirmed that they were involved with
shipments of cocaine. Jorge agreed to testify against them if the
Government were to arrest and indict them. Finece opined that
testifying against those individuals would constitute substantial
assistance. Finece told Jorge that, if he did so testify after
sentencing, the Government would file a motion for reduction of his
sentence pursuant to Fed. R. Crim. P. 35(b). One of the identified
individuals was apprehended in the week of sentencing.

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10
Court's finding. Jorge's counsel moved for a postponement of
sentencing to evaluate the importance of that apprehension. The
court responded:
No. This sentencing has been set for months and I'm
not going to delay it any further. If, in fact, Jorge
Ignacio Palomo or any other Defendant provides
information, the Government, in it's [sic] discretion,
can move under Rule 35 to reduce the sentence. I'm not
going to delay this sentencing at this time. I don't
find any indication that the Government has acted in bad
faith in not moving to depart downward under Section
5(K)1.1.
This Court has already held that the district court's finding of no
bad faith was not clearly erroneous. Edgar Palomo, 998 F.2d at
256-57. This Court extended the finding to include the
Government's conduct toward Edgar, who was sentenced at the same
hearing immediately after Jorge. Id.
Andrade. At Andrade's portion of the sentencing hearing, the
court noted that it had received a written statement from Andrade.
Andrade's attorney had not seen it before the court mentioned it.
The statement's contents are not in the record.
The court said that the statement would be liberally construed
as a motion to withdraw the plea, which was denied. Nothing
indicates whether the liberally construed motion related to the
omitted 5K1.1 motion.
During Andrade's portion of the hearing, no one mentioned
cooperation until the court sua sponte told Andrade, "And, let me
say Mr. Andrade, if you think you have information that will be
cooperative--would help the Government, you heard what Agent Finece
said. Other defendants have been and may be granted departure in

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11
their sentences under Rule 5K1 or Rule 35. I encourage you to
cooperate. Do either counsel have anything else?" Andrade's
counsel did not address the 5K1 motion.
Mancilla. Mancilla's sentencing was on July 23, 1992. No one
mentioned a 5K1.1 motion.
Arguments and Analysis
In the district court, Edgar objected to the Government's
omission to file a 5K1.1 motion, but he did not move to withdraw
his plea. Edgar Palomo, 998 F.2d at 256. Accordingly, his
argument that the Government breached the plea agreement by not
filing the 5K1.1 motion was reviewed for plain error.
Jose's, Jorge's, and Mancilla's breach arguments likewise
should be reviewed for plain error because they did not move to
withdraw their pleas. When an objection is forfeited in the
district court, the Court of Appeals may correct an error that both
is plain and affects a party's substantial rights. United States
v. Olano, ___ U.S. ___, 113 S. Ct. 1770, 1777, 123 L. Ed. 2d 508
(1993). An error is plain when it is clear or obvious. To show
that a substantial right is affected, a party normally must show
prejudice. "It is the defendant rather than the Government who
bears the burden of persuasion with respect to prejudice." While
the language of the rule is permissive, a Court of Appeals should
correct a plain error that seriously affects the "fairness,
integrity or public reputation of judicial proceedings." Id.
(internal quotation not indicated).

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12
As to Andrade, the Court does not know whether his motion to
withdraw related to the alleged breach because the motion is not in
the record. As the result is the same without the plain error
standard, as discussed below, the contents of the motion are not
essential to this appeal.
The remedy for the Government's breach is either specific
performance or the withdrawal of the plea with the opportunity to
plead anew. Edgar Palomo, 998 F.2d at 256. Analysis of a claimed
breach is a matter of law, based on whether the Government acted
consistently with the defendant's reasonable understanding of the
agreement. Id. The defendant has the burden to prove the
underlying facts amounting to a breach by a preponderance of the
evidence. Id. Being ready and willing to cooperate may constitute
"substantial assistance." Id.
Jose. Jose argues that the Government did not give him an
adequate opportunity to provide information and did not investigate
the information that he did provide. Finece testified that
information that Jose provided about the location of cocaine was
checked out and it was inaccurate. Jose has not shown how the
Government's one or two interviews with him, which the Government
found futile, were inconsistent with a reasonable understanding of
the plea agreement. Additionally, the implicit finding that the
Government provided Jorge an adequate opportunity to provide
substantial assistance, which this Court extended to Edgar, could
also be extended to Jose because he was present for at least one of
the meetings between Finece and Jorge.

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13
Jorge. Jorge argues that he told the Government about other
individuals and shipments of cocaine, that he stood ready to
testify for the Government but was not asked to do so, and that the
Government wanted him to provide information that he did not have.
Jorge has not shown how the Government's conduct, in light of the
useless information about the location of cocaine, was inconsistent
with a reasonable understanding of the plea agreement.
Furthermore, the district court implicitly found no breach, and
this Court has already held that finding not clearly erroneous.
Andrade. Andrade argues that he did provide substantial
assistance, that the plea agreement obligated the Government to
file the 5K1.1 motion upon his provision of substantial assistance,
and that perhaps a change in AUSAs between the guilty plea hearing
and the sentencing hearing accounts for an inadvertence by the
Government to file the 5K1.1 motion.
Andrade told the district court that he had provided
information and that he would ratify it in court. The court
responded that Andrade could be subject to a motion for reduction
of sentence if he were to cooperate; the court encouraged him to do
so.
The district court apparently believed that Andrade had not
yet provided substantial assistance. Nothing in the record
indicates that the information that Andrade did provide constituted
substantial assistance. With no details in the record that would
indicate the extent of a defendant's cooperation, this Court has no
way to hold that sentencing without a 5K1.1 motion is erroneous.

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14
United States v. Paden, 908 F.2d 1229, 1234 (5th Cir. 1990), cert.
denied, 498 U.S. 1039 (1991). The district court did not err in
implicitly finding that the Government had not breached the plea
agreement.
Mancilla. Mancilla argues that the promise to file a 5K1.1
motion was an integral part of the plea agreement upon which he
relied. He asserts that, because he stood ready to give testimony
for the Government, its failure to call him to testify was the
cause for his omission to provide substantial assistance.
Accordingly, he argues, the Government breached the plea agreement
and should be required to specifically perform, i.e., the
Government should be ordered to file the 5K1.1 motion.
At the sentencing hearing for the other defendants, Finece
said that Mancilla agreed to testify. Finece did not testify at
Mancilla's sentencing hearing.
In his objections to the Presentence Report (PSR), Mancilla
wrote, "Defendant has been debriefed by the Government. He was
debriefed and provided the Government with all the available
information that he was personally aware of. Defendant's plea
resulted on [sic?] majority of other defendant's [sic?] pleading.
Defendant expects the government to make a Motion for Downward
Departure, otherwise an evidentiary hearing may be necessary."
Other than these conclusions stated in Mancilla's objections
to the PSR, nothing in the record indicates whether Mancilla
provided any assistance at all. Proceeding with sentencing without
a 5K1.1 motion was not plain error.

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15
Firearms
(Jose, Jorge, Andrade)
As discussed below, Jose, Jorge, and Andrade argue that their
offense levels were improperly increased for the presence of
firearms. An offense level should be increased by two points "[i]f
a dangerous weapon (including a firearm) was possessed" during a
drug trafficking crime. U.S.S.G. § 2D1.1(b)(1). "The adjustment
should be applied if the weapon was present, unless it is clearly
improbable that the weapon was connected with the offense."
U.S.S.G. § 2D1.1, comment. (n.3). The adjustment is applicable
even if the defendant did not use or intend to use the weapon or if
the weapon was unloaded or inoperable. United States v. Paulk, 917
F.2d 879, 882 (5th Cir. 1990).
The Government may show possession by proving either a
temporal and spatial relationship among the weapon, the offense,
and the defendant or that the defendant could have reasonably
foreseen such possession by a co-defendant. Foreseeability may be
inferred from the co-defendant's knowing possession of the weapon
and other circumstances. United States v. Hooten, 942 F.2d 878,
882 (5th Cir. 1991). The district court's finding is reviewed for
clear error. United States v. Suarez, 911 F.2d 1016, 1018-19 (5th
Cir. 1990).
Jose. Jose argues that his sentence was improperly increased
for the presence of a weapon. The increase was improper, he
argues, because, although he owned the house in which guns were

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1Jose's brief refers to the person living in the house as his
wife. The person who actually lived in the house is his daughter,
Nora.
16
found, his daughter Nora--not he--lived in the house1 and because
the AUSA who was originally assigned to the case had agreed that no
gun was used in the offense. No other gun connected to him was
found, he asserts.
Jose also argues that he did not possess the guns personally
and his daughter's possession was not foreseeable. Jose also argues
that he did not attempt to show the clear improbability of a
connection between the guns and his offense because he relied on
the AUSA's stipulation that no gun was used in the offense.
Jose owned a house at 12011 Newbrook in Houston. The
telephone was in his name, but his daughter Nora, who also was a
co-conspirator, lived there. Jose, however, kept cash secreted
there and distributed it from there. Agents found in the house
several weapons and ammunition, as well as more than $200,000 cash.
The probation officer recommended a two-level increase for the
presence of firearms at the Newbrook house. Jose objected to the
increase. The court overruled the objection, finding Jose's
possession of weapons to have been both personal and through the
co-conspirators.
The record contains scant support for Jose's argument that he
did not make the "clearly improbable" showing because the AUSA had
agreed that weapons were not used. The AUSA's agreement is not in
the record. In his objections to the PSR, Jose alleged that the

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17
AUSA had told him that weapons were not used. Jose argues, "The
Government did not contradict this assertion . . . ."
The Government's omission to contradict Jose's objection does
not make his allegation true. The inclusion of the two-level
increase in the PSR certainly put Jose on notice that a showing
would be required to defeat the recommended increase.
Given the evidence and the burden on the defendant to show a
clear improbability of connection between the guns and the drug
offense, the district court's overruling of the objection is not
clear error. Moreover, in a drug conspiracy involving the large
number of people, the enormous quantity of cocaine, and the vast
distances involved here, a conspirator cannot credibly argue that
he could not have foreseen possession of a weapon by a co-
conspirator. "Weapons and violence are frequently associated with
drug transactions, of course." United States v. Coleman, 969 F.2d
126, 132 n.20 (5th Cir. 1992).
Jorge. argues that he should not have been assessed the
increase merely because weapons were found at his house, in front
of which was parked a vehicle containing cocaine. Jorge argues
that this was merely "a one time occurrence," and that, because the
record does not show that weapons were found at the shop, the
increase was improper.
A truck parked in the driveway of Jorge's residence contained
24 kilograms of cocaine. Inside, agents found several firearms
with ammunition. The probation officer recommended a two-level
increase. Jorge objected. The district court overruled the

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18
objection, finding possession both directly and through the co-
conspirators. For the reasons discussed above with respect to
Jose, this finding is not clearly erroneous.
Andrade. Andrade argues that a weapon found in a house on Rio
del Sol in Houston had nothing to do with him, that he was not
arrested at the house, and that he possessed no weapon personally.
He also argues that the district court made no finding on the
identity of the person who owned the weapon, precluding a
determination that he possessed it through co-conspirators.
On several occasions, Andrade went to a house at 15614 Rio del
Sol, where co-conspirators lived, to meet them and transport
cocaine. Agents found at that house one kilogram of cocaine,
$11,000 cash, two loaded firearms, and documents belonging to
Andrade. Andrade said that he was not aware that guns were
present. The probation officer recommended a two-level increase.
Andrade objected.
The court overruled the objection, finding Andrade responsible
for the weapon both personally and through his co-conspirators.
The court stated that it understood that Andrade had a limited
connection to the house and that the justification for the increase
rested particularly on Andrade's responsibility for the weapon
through his co-conspirators. For the reasons discussed above with
respect to Jose, this finding is not clearly erroneous.
Acceptance of responsibility
(Jose, Jorge)
As explained below, Jose and Jorge argue that they were
improperly denied reductions in offense level for acceptance of

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19
responsibility. A defendant is entitled to a two-level reduction
when he "clearly demonstrates a recognition and affirmative
acceptance of personal responsibility." U.S.S.G. § 3E1.1(a). The
defendant has the burden of making such a demonstration. United
States v. Mourning, 914 F.2d 699, 705-06 (5th Cir. 1990). The
district court's determination is a factual one that is "entitled
to great deference on review." U.S.S.G. § 3E1.1, comment. (n.5);
United States v. Thomas, 870 F.2d 174, 176 (5th Cir. 1989).
Jose. Jose argues that he should have received the reduction.
While acknowledging that the burden is his to prove acceptance of
responsibility, he argues that the AUSA's stipulation that he did
accept responsibility is sufficient.
Jose's plea agreement provides, "The United States will
stipulate that I have accepted responsibility for my actions
. . . ." The probation officer recommended against the reduction
because Jose minimized his involvement and did not make the
required affirmative demonstration. The probation officer reported
that Jose told him that three other conspirators, and not he, led
the conspiracy. Jose is also reported to have told the probation
officer that he was unaware of the cash in the Newbrook house until
his arrest. Jose objected.
The district court denied the reduction, stating that Jose
"flat out lied," observing that Jose denied responsibility for the
transactions at the house where Nora lived, yet he kept large
amounts of cash there. Given the PSR's account of Jose's
statement, the finding is not clearly erroneous.

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20
Because of the stipulation, Jose argues, "[T]his issue was not
one disputed by the Government. Since it was not an issue between
the parties, the Court's abrogation [sic] what was an implicit part
of the plea bargain, and [sic] denied Appellant credit for the two
points."
In the plea agreement, however, Jose acknowledged that the
Court could assess any lawful sentence, including the maximum
penalty. At the guilty plea hearing, the court referred to the
Government's stipulation and stated to Jose, "Do you understand
that just because the Government stipulates to that, I am not bound
to find that you have accepted responsibility?" Jose said yes.
Furthermore, a district court is not bound by stipulations recited
in a plea agreement. U.S.S.G. § 6B1.4(d); United States v. Woods,
907 F.2d 1540, 1542 (5th Cir. 1990), cert. denied, 498 U.S. 1070
(1991).
Jorge. Jorge argues that he was improperly denied the
reduction because the district court did not consider that he
admitted his participation in the offense. He also makes the same
argument about the Government's stipulation that Jose raised.
Jorge's PSR recommended against the adjustment. The probation
officer reported that Jorge attempted to distance himself from the
conspiracy, claiming only to have helped two conspirators open one
tank on one day. Jorge objected. The district court overruled the
objection, finding that Jorge was more involved in the offense than
he told the probation officer he was.

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21
Jorge did unload one tank, but he also managed the shop on
Harwin for Jose, supervised activities there, and himself delivered
to Andrade the cocaine that he removed from one tank. He
acknowledged in court that he unloaded that one tank in furtherance
of the conspiracy. The mere assertion that the court did not
consider that he admitted his participation in the offense,
however, does not bear the weight of Jorge's burden to show
acceptance of responsibility. Furthermore, a defendant's
unwillingness to accept responsibility for any portion of his
applicable conduct is grounds for denying the adjustment. United
States v. Watson, 988 F.2d 544, 551 (5th Cir. 1993), petition for
cert. filed, No. 93-5407 (July 29, 1993). The district court's
finding is not clearly erroneous.
Jorge's plea agreement does contain the same stipulation as
Jose's. It also contains the same acknowledgment that the sentence
is within the discretion of the court. At the guilty plea hearing,
Jorge stated his understanding of the same admonition that the
court was not bound by the stipulation. For the reasons stated
with respect to Jose, this argument is meritless.
Obstruction of justice
(Jose)
Jose argues that he should not have received an increase for
obstruction of justice. A two-level increase is warranted when a
defendant obstructs justice. U.S.S.G. § 3C1.1; United States v.
Pofahl, 990 F.2d 1456, 1481 (5th Cir. 1993), petition for cert.
filed, No. 93-5526 (Aug. 4, 1993). A district court's finding of
obstructive conduct is reviewed for clear error. Id.

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22
The probation officer reported that testimony at the trial of
a co-conspirator, Eduardo Hernandez, who is Jose's grandson,
revealed that Jose had urged the grandson to flee and not appear
for trial. The probation officer also reported that Jose urged
other co-conspirators to provide misleading information to the
probation officer. The PSR recommended a two-level increase for
obstruction of justice. Jose objected.
At sentencing, the court called Hernandez to testify. He
testified that his grandmother told him that his grandfather wanted
him to flee to avoid having to serve time in prison. Immediately
following the testimony, the district court overruled Jose's
objection to the increase.
Flight to avoid prosecution qualifies as obstructive conduct.
Pofahl, 990 F.2d at 1882. Counseling another to obstruct justice
is also obstructive. U.S.S.G. § 3C1.1, comment. (n.7). The
district court's finding that Jose obstructed justice is not
clearly erroneous.
Jose, however, argues that the testimony was double hearsay.
Hearsay, though, may be used for sentencing; the district court may
consider any evidence that has "sufficient indicia of reliability
to support its probable accuracy," including hearsay. U.S.S.G. §
6A1.3, comment.; United States v. Manthei, 913 F.2d 1130, 1138 (5th
Cir. 1990). The PSR itself also bears such indicia. United States
v. Alfaro, 919 F.2d 962, 966 (5th Cir. 1990).
The district court heard live testimony, overruling counsel's
objection to the admission of hearsay. Counsel examined Hernandez.

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2The district court actually stated the amount as 226 kg., and
this Court stated that it was 227 kg. No one argues that this
discrepancy is significant. The base offense level is the same for
amounts of at least 150 kg. but less than 500 kg. U.S.S.G.
§ 2D1.1(c)(3).
23
Counsel did not attempt to impugn the reliability of the testimony.
Furthermore, the facts were also stated in the PSR. Jose has not
shown this Court how the evidence does not bear sufficient indicia
of reliability to support its probable accuracy.
Quantity of cocaine
(Jose)
Jose argues that the quantity of cocaine used for sentencing
was too large. He argues that the amount should have been that
which was actually seized, not an estimate of the total amount of
cocaine involved in the conspiracy. The district court found that
the conspiracy involved 227 kilograms of cocaine. This Court has
already held that finding not clearly erroneous. Edgar Palomo, 998
F.2d at 258.2
For sentencing purposes, a conspirator is held accountable for
all reasonably foreseeable acts of his co-conspirators. U.S.S.G.
§ 1B1.3(a)(1)(B) & comment. (n.2); United States v. Devine, 934
F.2d 1325, 1337 (5th Cir. 1991), cert. denied, 112 S. Ct. 349
(1991), and cert. denied, 112 S. Ct. 952 (1992). Jose is liable
for the 227 kilograms.
Leadership role
(Jorge)
Jorge argues that his offense level was improperly increased
by two levels for his having a leadership role in the offense. A
two-level increase is warranted when a defendant was an organizer,

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24
leader, manager, or supervisor in any criminal activity. U.S.S.G.
§ 3B1.1(c). Seven factors should be considered in making the
leadership determination. They are "(1) the exercise of decision-
making authority; (2) the nature of participation in the commission
of the offense; (3) the recruitment of accomplices; (4) the claimed
right to a larger share of the fruits of the crime; (5) the degree
of participation in planning and organizing the offense; (6) the
nature and scope of the illegal activity; and (7) the degree of
control and authority exercised over others." U.S.S.G. § 3B1.1,
comment. (n.3); Edgar Palomo, 958 F.2d at 257. The district
court's determination is upheld unless clearly erroneous. Id.
The probation officer recommended the increase. He stated,
"Jorge Palomo appeared to occupy a leadership role, but is viewed
as less culpable than his brothers, Rafael and Edgar Palomo. He
functioned primarily as a supervisor of the shop located at 9909
Harwin, No. D, Houston, Texas." The probation officer further
determined that the increase was warranted because Jorge had "hired
Marco Mancilla to cut open the gasoline tanks and dispose of the
refuse." Jorge objected.
The district court overruled the objection, finding that Jorge
played a leadership role because he was the supervisor at the shop.
Jorge argues that there was no evidence to show that his
supervisory duties at the shop meant that he was a supervisor of
the criminal activity.
The probation officer reported that Jorge was the supervisor
at the shop in Houston "where the `load' vehicles were brought and

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25
the cocaine removed from the gasoline tanks. He hired Marco
Mancilla to cut open the gasoline tanks and dispose of the refuse."
Jorge also leased the premises for the shop. He once directed
Hernandez to purchase black spray paint to conceal a gasoline
tank's removal. Jorge once allowed another conspirator to use his
truck to smuggle cocaine. His telephone number and residence were
used by the conspirators to further the conspiracy.
Jorge does not appear to have exercised decision-making
authority. He did supervise the shop, where the shipments from
Guatemala arrived and were disassembled. He recruited one other
accomplice. He claimed no larger share of the fruits. He does not
appear to have been crucial in the planning and organizing, though
he did once lend his own truck for transportation of the cocaine.
The scope of the conspiracy was so broad that several persons could
have occupied supervisory roles. The exact nature of Jorge's
duties at the shop are not delineated, but he did supervise
Mancilla. Jorge has not shown how these factors compel the
conclusion that the district court clearly erred in finding him to
have been a leader or organizer.
Suppression of evidence
(Andrade)
Andrade argues that evidence seized from a black Mazda truck
that was following the car that he was driving at the time of his
arrest should have been suppressed. Following a suppression
hearing, the district court denied the motion to suppress.
The Government argues that Andrade entered an unconditional
guilty plea, waiving the right to appeal the denial of the

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26
suppression motion. Andrade did not anticipate this argument in
his original brief, and he did not file a reply brief.
A defendant wishing to preserve a claim for appeal while still
pleading guilty must enter a conditional plea. The plea must be in
writing and must specify the determination intended for review. A
conditional plea is not valid without the consent of the Government
and the approval of the court. Fed. R. Crim. P. 11(a)(2); United
States v. Bell, 966 F.2d 914, 915-16 (5th Cir. 1992). Andrade
neither entered a conditional guilty plea nor bargained for one.
This issue is waived.
We AFFIRM the convictions and sentences in each case.

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