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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
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 92-3477
Summary Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIE JAMES DOUGHTY,
a/k/a James Doty,
Defendant-Appellant.
*************************************************************
_________________
No. 92-3630
Summary Calendar
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELLIS CURRY,
Defendant-Appellant.
__________________________________________________________________
Appeals from the United States District Court for the
Eastern District of Louisiana
(CR-91-438-L)
__________________________________________________________________
April 23, 1993
Before JOLLY, DUHÉ, and BARKSDALE, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:*

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profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
-2-
In this case, we review the convictions and sentences of two
individuals convicted of conspiring to distribute crack cocaine.
Willie James Doughty challenges the sufficiency of the evidence,
the district court's jury instructions, and the sentence he
received. Ellis H. Curry pled guilty and challenges only the
sentence the district court imposed. We find no reversible error
in either case. We therefore affirm.
I
In 1990 and 1991, federal narcotics agents investigated the
sale of crack cocaine around the Paul Davis Sawmill Road in St.
Helena Parish, Louisiana. On six different occasions, the agents
purchased crack cocaine from Ellis H. Curry and others in or around
the Curry residence along Sawmill Road. Although Ellis Curry did
not live at the Curry residence, Charlesteen Curry, Barbara Jean
Curry, and Michael Moore did live there. On one occasion, an agent
called Ellis Curry and told Curry that he would like to purchase
some crack cocaine. Curry told the agent that he would not be
around and instructed the agent to "go to his mother's house and
see either Little Michael or Barbara Jean." On another occasion,
Curry told an agent that everyone in the area worked for him.
Despite Curry's contention that he did not organize this drug
operation, he admitted to the probation officer that he helped

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Barbara Jean Curry, Evelyn Curry, Michael Moore, and James Doughty
obtain the drugs they sold.
Willie James Doughty was one of the people who worked with
Curry. On May 15, 1991, Doughty approached a couple of federal
agents and asked them if they wanted to purchase some crack
cocaine. The agents indicated that they wanted to buy two twenty
dollar rocks of cocaine. Doughty went into the Curry residence,
talked to someone, and learned that one fifty dollar rock of
cocaine was available. When Doughty returned, the agents agreed to
purchase the fifty dollar rock. A few minutes later, the agents
paid for the cocaine, and Doughty handed over the crack cocaine.
II
In September of 1991, the government indicted Curry, Doughty
and others for conspiring to distribute cocaine and cocaine base in
violation of 21 U.S.C. §§ 841(a)(1), 846. A month later, the grand
jury returned a substantially identical indictment that corrected
technical errors, including the spelling of Doughty's name.
In March of 1991, Curry pled guilty. The probation officer
prepared a presentence report ("PSR") in which he recommended that
the district court increase Curry's base offense level by four
levels under Sentencing Guideline § 3B1.1(a) because Curry was a
leader or organizer of a criminal activity involving five or more
participants. Curry objected to this enhancement.
On June 30, 1993, the district court held a sentencing hearing
to resolve Curry's objections to the PSR. A federal agent involved

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in the investigation testified about his dealings with Curry.
Despite the government's evidence concerning Curry's role in the
drug operation, Curry did not present evidence to contradict the
government's position. Based on the PSR and the other evidence,
the district court found that Curry was a manager or supervisor of
a criminal activity involving five or more participants. Pursuant
to Sentencing Guideline § 3B1.1(b), the district court increased
Curry's base offense level three levels and sentenced Curry to,
inter alia, 72 months imprisonment followed by five years of
supervised release.
Doughty, on the other hand, chose a jury trial. The
government tried Doughty and a co-defendant in March of 1992. At
the close of the evidence, the district court held a conference to
review the proposed jury instructions. Doughty raised no objection
to the court's proposed jury instructions. After the jury selected
a foreman but before the jury began deliberating, however, Doughty
asked the court to deliver a "mere presence" instruction. Finding
that this instruction did not fit the facts and that delivering the
single instruction would unduly emphasize the instruction, the
court refused to give the instruction. Subsequently, the jury
returned a guilty verdict.
After the jury returned the verdict, Doughty renewed his
motion for a judgment of acquittal. In May of 1992, the district
court denied it. The next month, the district court held a
sentencing hearing. Doughty objected to several of the probation

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-5-
officer's conclusions in the PSR. Nevertheless, despite Doughty's
opportunity to present contrary evidence, he failed to do so.
Thus, the district court sentenced Doughty based on the evidence in
the PSR and the district court's recollection of the evidence at
trial. The district court sentenced Doughty to 24 months
imprisonment and three years of supervised release.
Both Curry and Doughty filed timely notices of appeal. Curry
appeals only the district court's sentence. Doughty, however,
appeals both his conviction and his sentence. The government filed
an unopposed motion to consolidate the two appeals that was granted
by the clerk of the court.
III
A
We begin with Doughty's argument that the district court
reversibly erred when it refused to deliver the mere presence jury
instruction that both Doughty and the prosecution requested. The
requested jury instruction provided that:
The mere presence at the scene of an event even with the
knowledge that the crime is being committed or the mere
fact that certain persons may have associated with each
other, may have assembled together and discussed common
names, interests, does not necessarily establish proof of
the existence of a conspiracy. A person who has no
knowledge of a conspiracy, who happens to act in a way
which advances some purpose of the conspiracy does not
thereby become a conspirator.
Because the district court has substantial latitude in tailoring
jury instructions, we review the district court's refusal to
include a defendant's proposed jury instruction for an abuse of

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discretion. United States v. Chaney, 964 F.2d 437, 444 (5th Cir.
1992). The district court abuses its discretion only when the
failure to give the instruction prevents the jury from considering
the defendant's defense. United States v. Masat, 948 F.2d 923, 928
(5th Cir. 1991). The district court does not abuse its discretion
unless the requested instruction is "1) substantially correct, 2)
was not substantially covered in the charge delivered to the jury;
and 3) concerns an important issue so that the failure to give it
seriously impaired the defendant's ability to present a given
defense." United States v. McKnight, 953 F.2d 898, 903 (5th Cir.
1992).
Although this jury instruction is substantially correct, the
district court did not abuse its discretion when it refused to give
this instruction. The instruction is not warranted in this case
because the evidence did not justify such an instruction. The
government presented evidence—unrefuted by the defense—that Doughty
was not merely present at the scene of the drug transaction, but
that he actually participated in the conspiracy by selling,
retrieving, and delivering drugs on at least one occasion, which
occurred at the Curry residence when other persons were present.
Moreover, the instruction was simply unnecessary because the
given instructions adequately covered the situation so as to allow
full consideration of Doughty's defenses. The district court
instructed the jury that, inter alia, in order to find the

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defendant guilty of conspiracy, the evidence must establish beyond
a reasonable doubt:
1) That the defendant reached an agreement or
understanding with at least one other person to commit a
crime. In this case, to distribute cocaine hydrochloride
or cocaine base; and
2) That the defendant knew the purpose of the agreement
and joined in it willfully, that is with the intent to
further the unlawful purpose.
The court went on to instruct the jury that a finding of a buyer-
seller relationship was not sufficient to sustain a conspiracy
conviction. The court also defined "willfully" and "knowingly" for
the jury. These instructions, viewed in context with the court's
other instructions, covered all of the relevant issues in the
instruction that Doughty requested. Additionally, we agree with
the district court that separately giving Doughty's mere presence
instruction would overemphasize the instruction. Thus, without
hesitation, we conclude that the district court did not abuse its
discretion when it refused to give the mere presence instruction
that Doughty requested.
B
Doughty also argues that the district court committed plain
error when it failed to provide a jury instruction on venue. The
failure to provide a jury instruction on venue is reversible error
when the evidence puts venue at issue and the defendant requests
the instruction. United States v. Winship, 724 F.2d 1116, 1125
(5th Cir. 1984).

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-8-
The district court did not err for two obvious reasons.
First, Doughty failed to request the instruction. Second, and more
importantly, the venue was proper in the Eastern District of
Louisiana. In a conspiracy case, venue is proper in any district
where the parties to the conspiracy committed an overt act in
furtherance of the conspiracy. United States v. Pozos, 697 F.2d
1238, 1244 (5th Cir. 1983); United States v. Maceo, 947 F.2d 1191,
1201 (5th Cir. 1991). Venue was proper in this case because Ellis
Curry, one of the managers of the conspiracy, sold cocaine in the
Eastern District of Louisiana.
C
Doughty also challenges the sufficiency of the evidence
against him. Doughty argues that the government did not provide
sufficient evidence to prove that he conspired with other
individuals. When we review the sufficiency of the evidence, we
view the evidence in the light most favorable to the verdict.
United States v. Pigrum, 922 F.2d 249, 253 (5th Cir. 1991). We
must affirm the verdict if a rational trier of fact could have
found that the government proved the essential elements of the
offense beyond a reasonable doubt. United States v. Carter, 953
F.2d 1149, 1154 (5th Cir. 1992). In this connection, the
government may use circumstantial evidence to prove all of the
elements of the conspiracy. Id.
The government presented sufficient evidence to prove all of
the elements of the crime. To secure a conviction for conspiracy

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1Doughty's reliance on United States v. Lewis, 902 F.2d 1176
(5th Cir. 1990) and United States v. Guerra-Marez, 928 F.2d 665
(5th Cir. 1991) is misplaced because neither case is factually
similar to the case before us. In Lewis, the government's
evidence at trial established that Lewis associated with a man
named Wade who was involved in a drug transaction. The
government's other evidence established only that Wade called
Lewis after flushing the contents of a controlled cocaine
delivery down the toilet and that a police officer had an
"enigmatic conversation" with an unidentified man who called
Lewis's beeper after he was arrested. In Guerra-Marez, on the
other hand, the government had no proof that Wenseslada Reyes-
Moya worked with the alleged co-conspirator. The fact that both
defendants had a common goal did not prove a conspiracy. In the
case before us, however, there is evidence linking Doughty to
Curry's drug operation.
-9-
under 21 U.S.C. § 836, the government must prove 1) that two or
more individuals agreed to violate the narcotics law, 2) that the
charged co-conspirator knew of the conspiracy and intended to join
it, and 3) that the co-conspirator participated in the conspiracy.
Id. At trial, the government offered ample evidence that a
conspiracy to sell cocaine existed and that, on six different
occasions, members of the conspiracy sold drugs to federal agents
in front of Curry's mother's house. Doughty executed one of those
sales. The government also proved that other people helped Doughty
complete the sale in which he participated. Taking the evidence in
the light most favorable to the verdict, this evidence is
sufficient to convince a reasonable jury that Doughty conspired to
sell drugs.1
D
Having rejected Doughty's arguments challenging his
conviction, we now consider his argument that the district court

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-10-
imposed an excessive sentence. Doughty contends that the district
court erred when it determined the amount of cocaine he distributed
and when it determined his criminal history. We will affirm the
district court's sentence "so long as it results from a correct
application of the guidelines to factual findings that are not
clearly erroneous." United States v. Headrick, 963 F.2d 777, 779
(5th Cir. 1992). Factual findings that are plausible in the light
of the record taken as a whole are not clearly erroneous. United
States v. Sanders, 942 F.2d 894, 897 (5th Cir. 1991).
(1)
We begin with Doughty's challenge to the district court's
conclusion that Doughty distributed .54 grams of cocaine. In the
PSR, the probation officer determined that Doughty distributed .54
grams of cocaine. The probation officer based his conclusion on
information provided by the Louisiana State Police Laboratory. At
the sentencing hearing, Doughty did not contest the fact that he
sold .54 grams of cocaine. Instead, Doughty argued that the court
should not use any weight because, at trial, the government did not
introduce any evidence concerning the weight of cocaine he
distributed. It does appear that at the sentencing hearing the
district court was under the mistaken impression that a Louisiana
State policeman testified about the weight of the cocaine at trial
when it ruled against Doughty's objection to the weight of the
cocaine.

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If Doughty had any evidence concerning the weight of the
cocaine, then the district court's error would have been serious.
Yet, despite the fact that the district court gave Doughty every
opportunity to challenge the probation officer's factual
conclusions, Doughty did not present contrary evidence. Indeed,
even now Doughty practically admits that he sold .54 grams of
cocaine; he only argues that at trial the government failed to
prove the amount of cocaine. Doughty's argument fails because the
government was not required to prove the weight of the cocaine at
trial. United States v. Brown, 887 F.2d 537 (5th Cir. 1989).
The government can wait until the sentencing hearing to
present its evidence and, like the district court, the government
can rely on the probation officer to determine the amount of
cocaine. Furthermore, in sentencing a defendant, a district court
can rely on hearsay evidence including evidence in a PSR. United
States v. Byrd, 898 F.2d 450 (5th Cir. 1990). Because the only
evidence in the record indicates that Doughty sold .54 grams of
cocaine, we will affirm the district court's decision to base
Doughty's sentence on .54 grams of cocaine.
(2)
Doughty also contends that the district court erred in
calculating his criminal history. Doughty argues that the
government failed to prove "when, if ever, Doughty was incarcerated
on his prior sentence." Doughty further argues that he "may have
served his sentence before the ten year cleansing period."

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2The Sentencing Guidelines use two different rules in
determining whether a prior sentence counts toward a defendant's
criminal history. Sentences over a year and a month count if the
defendant served any part of the sentence in the fifteen years
prior to committing the instant offense. Sentences less than one
year and a month only count if the prior sentence was imposed
within ten years of the instant offense. See U.S.S.G. §
4A1.2(e).
-12-
Sentencing Guideline § 4A1.1(b) awards two criminal history points
for any prior sentence of imprisonment of it least sixty days. For
sentences under sixty days, the Sentencing Guidelines award only
one point. U.S.S.G. § 4A1.1(c).
The district court did not err in awarding Doughty two
criminal history points. Doughty committed the instant offense on
May 15, 1991. The PSR establishes that Doughty was arrested
July 2, 1980, for the attempted burglary of a United States Post
Office. Doughty was found guilty of that offense on September 18,
1981, and the court sentenced him to six months of imprisonment on
October 13, 1982. The Sentencing Guidelines provide that "[a]ny
other prior sentence that was imposed within ten years of the
defendant's commencement of the instant offense is counted."2
U.S.S.G. § 4A1.2(e)(2). Because Doughty was sentenced within ten
years of committing the instant offense, the district court was
required to count the prior sentence. Because the six-month
sentence was well beyond the sixty-day minimum, Doughty's prior
sentence results in two criminal history points. U.S.S.G. §
4A1.1(b). Doughty's argument that the government failed to prove
he served the sentence is without merit because a PSR provides

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-13-
reliable evidence that the defendant served the sentence and that
the court did not suspend the sentence. United States v. Sanders,
942 F.2d 894, 898 (5th Cir. 1991). Furthermore, Doughty offered no
contrary evidence indicating that he did not serve the sentence.
IV
We now turn to Ellis Curry's appeal. Curry contends that the
district court imposed an improper sentence because the government
failed to prove that Curry managed or supervised a criminal
activity involving five or more people. As we have earlier noted,
we will affirm the district court's sentence "so long as it results
from a correct application of the guidelines to factual findings
which are not clearly erroneous." United States v. Sarasti, 869
F.2d 805, 806 (5th Cir. 1989). The district court's factual
findings are not clearly erroneous when they are plausible in the
light of the record taken as a whole. United States v. Sanders,
942 F.2d 894, 897 (5th Cir. 1991); United States v. Mejia-Orosco,
867 F.2d 216, 221 (5th Cir. 1989).
The sentencing guidelines direct the district court to
increase the defendant's base offense level by three levels if "the
defendant was a manager or supervisor [of a criminal activity] (but
not an organizer or leader) and the criminal activity involved five
or more participants or was otherwise extensive." U.S.S.G. §
3B1.1(b); United States v. Klienebreil, 966 F.2d 945, 955 (5th Cir.

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3If the defendant was an organizer or leader of a criminal
activity, the sentencing guidelines direct the district court to
increase the defendant's base offense level by four levels.
U.S.S.G. § 3B1.1(a)
-14-
1992).3 Before the district court increases the defendant's base
offense level under this section, the district court must find that
the defendant and at least four other individuals were involved in
the criminal activity. United States v. Alfaro, 919 F.2d 962, 967
(5th Cir. 1990).
The probation officer found that Curry was a leader of the
criminal activity and recommended that the district court increase
Curry's base offense level by four levels pursuant to U.S.S.G. §
3B1.1(a). The district court decided not to follow this
recommendation. Instead, the district court found that Curry was
a manager or supervisor of the criminal activity and increased his
base offense level by only three levels.
The district court's finding that Curry managed or supervised
a criminal activity involving at least five individuals was not
clearly erroneous. When making sentencing decisions, the district
court may consider all relevant, reliable information including a
PSR. Alfaro, 919 F.2d at 966. Curry admitted to the probation
officer that he helped Barbara Jean Curry, Evelyn Curry, Michael
Moore, and James Doughty obtain the drugs they sold. On other
occasions, he boasted about the number of people working for him
and directed federal agents to purchase crack cocaine from other
individuals that worked for him. All of this information was

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before the district court when it made its decision. Furthermore,
Curry did not present any evidence to rebut the government's
evidence that he was a manager or supervisor of the conspiracy.
Instead, Curry relied solely on the unsworn assertions of his
counsel even though previously we have held that such assertions
are not reliable. Id.
It is now on appeal that Curry contends for the first time
that the government failed to prove that five or more individuals
were involved in the criminal activity. Because Curry did not
raise this issue at his sentencing hearing, we review for plain
error. United States v. Pattan, 931 F.2d 1035, 1042 (5th Cir.
1991). Under this standard, we will reverse only if the district
court made a purely legal error, and the failure to address the
issue would result in manifest injustice. United States v. Garcia-
Pillado, 898 F.2d 36, 39 (5th Cir. 1990).
There was no plain error here. On the contrary, the record
fully supports the district court's finding that five or more
people were involved. It seems clear that, at a minimum, Ellis
Curry, Barbara Jean Curry, Evelyn Curry, Michael Moore, and James
Doughty were involved. Although, the record indicates there were
other participants as well, the participation of these five
individuals provides sufficient support for the district court's
finding.

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V
For all of the foregoing reasons, we AFFIRM Doughty's
conviction and the sentence the district court imposed. Similarly,
we AFFIRM the sentence that the district court imposed on Ellis
Curry after he pled guilty to conspiracy to distribute cocaine
hydrochloride and cocaine base.
A F F I R M E D.

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