(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that this opinion should not be published.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. 92-3373
UNITED STATES OF AMERICA, Plaintiff-Appellee,
VERSUS
ALBERTO PEREZ, MIGUEL CORTEZ, and HUMBERTO ANIBAL SUAREZ,
Defendants-Appellants.
Appeal from the United States District Court
For the Eastern District of Louisiana
(CR 91 479 L)
April 13, 1993
Before, REYNALDO G. GARZA, WILLIAMS and JONES, Circuit Judges.
PER CURIAM:*
Alberto Perez, Miguel Cortez, and Humberto Anibal Suarez
appeal their convictions for conspiracy to distribute cocaine
under 21 U.S.C. §§ 841(a) and 846. They contend that there were
numerous errors made at the trial level, which warrant reversal
of their convictions. Pursuant to the following reasoning we
reject all of the appellants' contentions and AFFIRM the
convictions and sentences handed down below.

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2
FACTS
On August 3, 1991, at 10:30 p.m., New Orleans Police
Department ("NOPD") officers arrested appellant Miguel Cortez
("Cortez"). During the course of the arrest, with the aid of a
drug sniffing dog, the NOPD discovered $11,033 hidden inside the
right fender well of the car. The car also contained a pager and
a cellular telephone.
The NOPD were surreptitiously watching Cortez because they had
received a tip. The night before, on August 2nd, Cortez had
driven from Houston to New Orleans, and he stayed in the Days
Inn. The morning of August 3rd, Cortez, along with several other
people, left the motel and contacted Frederick Crosby ("Crosby").
The two parties set up a rendezvous at Shoney's Restaurant, where
they subsequently met. Once at Shoney's, Cortez drove off in
Crosby's car and surveillance was not resumed until the two
returned some time later.
After the NOPD had arrested Cortez, they also searched
Crosby's vehicle. Crosby tendered his consent to the officers to
search his vehicle after a drug sniffing dog had alerted to it.
The search uncovered 126.5 grams of cocaine. Crosby informed
the officers that he had purchased the cocaine from Cortez.
After his eventful trip to New Orleans, Cortez returned to
Houston. Soon thereafter, around Labor day, Cortez contacted
James Singletary ("James") and inquired as to whether James would
be interested in another trip to New Orleans to traffick

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1 James had made at least three trips to New Orleans with
James previously; however, the August 2nd trip was not one of
them.
2 Cortez had previously offered to pay James $500 per
kilogram to transport cocaine to New Orleans.
3 James was never formally introduced to Suarez; however, he
and his brother Dale referred to him as "Lurch" because of his
likeness to the television character. Moreover, James asked
Cortez about Suarez, and Cortez informed him that Suarez worked
with his suppliers. Cortez explained that he had problems on an
earlier trip and owed his suppliers some money. Suarez was sent
to insure that there would be no more "foul ups."
4 In response to James' questioning about Suarez, Cortez
informed him that Suarez worked with this supplier. Cortez also
told James that he had problems on an earlier trip (most likely
the August trip in which he was arrested), and the suppliers sent
3
cocaine.1 James agreed to make the trip with Cortez.2 James
decided to bring his brother Dale Singletary ("Dale") along for
the trip because he had never been to New Orleans.
Prior to their departure, Dale and James met Cortez at a house
in Bellaire, Texas, owned by Cortez' friend Queenie. Once at
Queenie's house, Cortez had a conversation away from Dale and
James with three white men and one black man. James identified
the black man as Humberto Anibal Suarez ("Suarez"). James heard
nothing that Cortez and Suarez said to each other.
Subsequently, the Singletarys drove to New Orleans in a red
Mazda pick-up truck, which James had driven on previous trips to
New Orleans. In the spare tire of the pick-up they had stored a
large amount of cocaine. They met Cortez, Suarez,3 and Cortez'
friend Rachel in New Orleans. Suarez only spoke spanish and
because the Singletarys did not know Spanish they could not
understand his conversations with Cortez.4

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Suarez along to make sure everything went smoothly.
4
Once in New Orleans, the Singletarys checked into the Bayou
Plaza Motel. Cortez and Rachel shared one room. The Singletarys
stayed in another room along with Suarez. The next day, Cortez
and James rented a room at the Cinema Motel. James took the
spare tire into the room where Cortez cut it open and removed the
hidden cocaine. Ann, another Cortez friend, joined the two and
all three drove in her car to Ann's sister's house. Inside that
house Cortez met Emily Magee and Brad Daniels. Cortez sold some
of the cocaine to Brad Daniels.
Cortez then apparently returned to the Bayou Plaza Hotel along
with James. Later on that day, Daniels called Cortez at the
Bayou complaining that the cocaine Cortez had sold him was
defective because it turned brown when "cooked" into crack.
Daniels contended that he would be unable to sell brown cocaine
because cocaine is customarily white. In response to Daniels'
phone call, Cortez, James, and Suarez drove to Daniels' house.
Once at Daniels' house, Cortez and Daniels "cooked" another
batch of crack cocaine, which also turned brown. Cortez told
Daniels that he would notify his suppliers about the problem and
that he would be by to pick up the sample later. Cortez
repeatedly spoke with Suarez in Spanish during the course of his
discussion with Daniels. Further, James testified that Cortez
had told him that this conversation was about the defective
cocaine. Eventually, the three returned to the Bayou Plaza after
their discussion with Daniels.

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5 At this point in time everyone split up and went their
separate ways. James and Dale eventually ended up at the Sweets
Motel. Once they were able to contact Cortez, he suggested that
they check into the Pinnacle Motel. Later that night Perez
informed James that he had unsuccessfully tried to fly back to
Houston.
5
James testified that he had met Alberto Perez ("Perez") in the
restaurant of the Bayou Plaza Hotel on the evening of September
5th while he and his brother Dale were eating. After, the
entourage detected that they were under surveillance they left
the restaurant and went upstairs to inform Cortez. Once
informed, Cortez decided to leave the hotel.5
James testified that he witnessed Cortez leave his room with
cocaine and hand it to Perez with instruction to wrap it in a
newspaper and place it behind the ice machine. Perez then placed
the package of cocaine behind an ice machine on the fourth floor
of the hotel. A subsequent search by NOPD of the fourth floor of
the hotel revealed 560.2 grams of cocaine hidden behind the ice
machine.
On September 5th, Jefferson Parish Police Officers stopped
Perez at the New Orleans International Airport traveling under an
alias. Perez was attempting to fly to Houston. Perez had left a
contact number with the airlines, which was a number at the
Pinnacle Motel in Gretna, Louisiana. The room number at the
motel, which corresponded to the phone number, was registered to
Cortez.
Officer Simone testified that during the investigation, he
stopped a red Mazda truck, which contained James, his brother

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6 James' information also led police officers to the cocaine
behind the ice machine at the Bayou Plaza.
6
Dale, and appellant Suarez. James immediately aided the police
in order to save his hide.6 With James' information, the NOPD
soon found Cortez and three other people in a Ford Bronco. After
everyone was ordered out of the Bronco, a box containing $20,000
was found in the floor with the aid of a drug sniffing dog.
Further, James led the NOPD to 7854 Sail Street, where he had
delivered five kilograms of cocaine. The NOPD obtained a search
warrant for 7854 Sail Street. The search revealed: (i) 1300
grams of powder and crack cocaine; (ii) pagers; (iii) cellular
telephones; (iv) a semi-automatic pistol; (v) a triple beam
balance; and (vi) $2,937 in U.S. currency.
James also testified that sometime prior to Cortez' August
arrest he had traveled with Cortez to New Orleans. James and
Cortez checked into a Comfort Inn where they were met by a woman
named Sophie. The next day, Cortez told James to fly back to
Houston and take money back to Perez and Julio at Queenie's
house. The money, which amounted to $70,000, was taken out of
the hotel safe and placed in a blue bag.
James traveled under a false name, per Cortez' instructions
via Continental Airlines. Cortez wanted James to use a false
name in case he was stopped with the money. Once James arrived
in Houston, he went directly to Queenie's house. Eventually, he
called Perez and Julio and they came to Queenie's house.
After Perez and Julio arrived at Queenie's house the three

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7 There were numerous other defendants indicted and tried
before the jury. However, those parties are not before us on
this appeal and no further mention need be made of them.
8 James Singletary pleaded guilty to 18 U.S.C. § 371.
Pursuant to the plea agreement he testified on behalf of the
government. However, as part of the agreement none of his
testimony was permitted to be used against his brother Dale.
7
counted the money. Perez became upset with James after the money
was counted because he thought the amount was $2,000 short.
Perez immediately called Cortez in New Orleans and discussed the
apparent shortage. After Perez ended his conversation with
Cortez he told James that he would be paid $4,000. James
complained that he was to receive more money; however, Perez
insisted that on Cortez' instructions he was supposed to pay only
$4,000. There apparently was no testimony regarding where the
money had come from.
PROCEDURE
Cortez, Suarez, and Perez were indicted by a grand jury in the
district court for the Eastern District of Louisiana.7 The
indictment charged that the defendants "did knowingly and
intentionally combine, conspire, confederate and agree with each
other and with other persons known and unknown . . . to knowingly
and intentionally possess with intent to distribute approximately
two kilograms of cocaine." After a jury trial, each of the three
defendants were found guilty of conspiracy to distribute and
possess cocaine. The three defendants now appeal.8
DISCUSSION
There are numerous issues to be confronted on appeal: (i)

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8
whether there was sufficient evidence to convict Suarez and
Perez; (ii) whether the government proved two separate
conspiracies rather than the one conspiracy alleged in the
indictment; (iii) whether prosecutorial misconduct occurred
during the closing argument; and (iv) whether the district court
properly applied the sentencing guidelines to Perez and Suarez.
We find that there was sufficient evidence for the jury to
find that Perez and Suarez were members of the drug conspiracy.
Second, there was sufficient proof for the jury to find that one
conspiracy existed. Thirdly, the prosecutor's remarks during
closing argument were at best harmless error. Finally, the
district court's application of the sentencing guidelines was not
clearly erroneous. Therefore, we AFFIRM the convictions and
sentences of the three defendants.
i. Sufficiency of the Evidence.
Suarez and Perez contend that there was insufficient evidence
against them. In essence, they argue that there were numerous
innocent inferences that could have been drawn even accepting all
the evidence as true.
A. Standard of Review.
When the sufficiency of the evidence is challenged, we must
examine the evidence and all reasonable inferences that may be
drawn from it in the light most favorable to the jury verdict.
See United States v. Pigrum, 922 F.2d 249, 253 (5th Cir.), cert.
denied, 111 S. Ct. 2064 (1991); United States v. Lindell, 881
F.2d 1313, 1322 (5th Cir. 1989), cert. denied, 496 U.S. 926

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9
(1990). Further, the appellate court does not make credibility
determinations because it is within the sole province of the jury
to weigh the evidence and assess the credibility of witnesses.
See United States v. Aguirre Aguirre, 716 F.2d 293, 297 (5th Cir.
1983). Therefore, the standard really reduces to whether there
is sufficient evidence that would have led a rational trier of
fact to find that all of the essential elements of the offense
were established beyond a reasonable doubt. See United States v.
Lechuga, 888 F.2d 1472, 1476 (5th Cir. 1989); United States v.
Palella, 846 F.2d 977, 981 (5th Cir.), cert. denied, 488 U.S.
863, 109 S. Ct. 162 (1988).
The elements that must be proven beyond a reasonable doubt in
order to establish guilt of a conspiracy to distribute cocaine
under 21 U.S.C. §§ 841 (a)(1) & 846 are as follows: (i) the
existence of an agreement between two or more persons to commit
one or more violations of the narcotics laws; (ii) the defendant
must knowingly and intentionally join the conspiracy; and (iii)
the defendant must freely and voluntarily participate in the
conspiracy. See United States v. Salazar, 958 F.2d 1285, 1291
(5th Cir.), cert. denied, 113 S. Ct. 185 (1992); United States v.
Juarez-Fiero, 935 F.2d 672, 677 (5th Cir.), cert. denied, 112 S.
Ct. 402 (1991); United States v. Abadie, 879 F.2d 1260, 1265 (5th
Cir.), cert. denied, 493 U.S> 1005 (1989).
Interestingly, "[u]nlike many other conspiratorial offenses,
section 846 does not require proof of an overt act in furtherance
of the conspiracy." Lechuga, 888 F.2d at 1476 (citing United

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10
States v. Hernandez-Palacios, 838 F.2d 1346, 1348 (5th Cir.
1988); United States v. Gardea Carrasco, 830 F.2d 41, 44 (5th
Cir. 1987)). Of course, the jury may utilize circumstantial
evidence and surrounding circumstances to arrive at their
decision. See United States v. Graham, 858 F.2d 986, 991 (5th
Cir. 1988), cert. denied, 109 S. Ct. 1140 (1989); United States
v. Espinoza-Seanez, 862 F.2d 526, 537 (5th Cir. 1988).
Significantly, the defendant need not have been a major force in
the conspiracy. As long as the defendant is guilty of each of
the elements of the crime, it does not matter that he or she was
an insignificant or minor player in the final analysis. See
United States v. Gonzales, 866 F.2d 781, 788 (5th Cir.), cert.
denied, 490 U.S. 1093, 109 S. Ct. 2438 (1989).
B. Alberto Perez.
Perez contends that there were only four incidents from which
the jury could have based his involvement in the conspiracy. The
first incident, occurred some time prior to Cortez' August
arrest, when James delivered the $70,000 to Perez at Queenie's
house. The second, was when Perez picked up a truck in Houston
that James had driven there. The third incident involved Perez'
presence at a "meeting" held in Queenie's house at which drugs
were apparently not discussed.
Finally, James testified that on September 5th, he and his
brother "ran into" Perez in the Bayou Plaza Hotel restaurant.
Perez stated that he was just "passing through." Immediately
thereafter, the three noticed that they were under DEA

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11
surveillance so they all went upstairs to warn Cortez. James
testified that he witnessed Perez leave Cortez' room with Cortez
and a package of cocaine wrapped in a newspaper. At Cortez'
direction, Perez placed the package behind the ice machine not
far from Cortez' room, where it was later found by NOPD.
Further, James testified that Perez operated under the direct
instructions of Cortez.
Perez also makes numerous attempts to undermine the
credibility of James Singletary. He points to: (i) discrepancies
between statements at the time of his arrest and statements made
at trial; and (ii) favorable treatment accorded James for
"ratting" on his co-conspirators. It was solely within the
jury's province to assess the credibility of James Singletary.
We will not make credibility determinations at the appellate
level. Aguirre, 716 F.2d at 297.
Surely, the jury could have found that Perez' involvement in
the conspiracy dated back at least to the date in which he
accepted the $70,000 from James. During the course of that event
Perez' position in the organization appeared to be superior to
James' position. Additionally, the jury could have rationally
found that the $70,000 were illegal drug proceeds due to the
unusually large amount. See United States v. Gonzalez-Rodriguez,
966 F.2d 918, 921 n.3 (5th Cir. 1992); Salazar, 958 F.2d at 1295.
Finally, while mere presence at the scene of the crime and close
association with those involved are insufficient to establish
guilt standing by themselves, they are still relevant factors for

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12
the jury to weigh in its consideration. See United States v.
Sanchez, 961 F.2d 1169, 1174 (5th Cir.), cert. denied, 113 S. Ct.
330 (1992). Consequently, when Perez' role with regard to
James' delivery of the $70,000, and Perez' actions in New Orleans
in September are factored in, there was surely sufficient
evidence of his involvement in the conspiracy.
C. Humberto Anibal Suarez.
Suarez contends that although a conspiracy may have existed,
his involvement was not established. Specifically, Suarez
asserts that although the government proved: (i) that there was
an agreement between two or more persons to violate the drug
laws, the government failed to prove: (ii) that he knew of the
conspiracy; (iii) that he intended to join the conspiracy; and
(iv) that he participated in the conspiracy. The primary thrust
of Suarez' argument stems from the fact that he spoke no English
and no testimony established anything that he said.
Surely, Suarez' activities, when viewed as a whole, lead to
the conclusion that he was more than an innocent bystander.
Indeed, there need only have been sufficient proof for a rational
jury to find that he was knowingly and intentionally involved in
the conspiracy. The most damaging of Suarez' activities, other
than staying in the hotel room with the Singletary brothers, was
his trip to Daniels' house. When Daniels called to complain
about the quality if the cocaine he had received, Cortez took
James and Suarez along with him. Once at Daniels' house, the

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9 There was testimony heard that at numerous times during
the September surveillance Suarez appeared to be occupying a
lookout post.
13
four "cooked" up another batch of cocaine to demonstrate the
defect. In the course of this, Cortez and Suarez spoke
repeatedly in spanish. James had testified that he was told by
Cortez that Suarez was a representative of his suppliers.
Suarez' oversight role at the Daniels' household reinforced this
testimony.
Additionally, at numerous times during the surveillance Suarez
occupied a lookout post. Suarez contends that in each of these
instances his conduct was ambiguous and that nothing he did was
illegal. To be sure, standing on a balcony outside of a hotel
room and shopping in a mall are not illegal.9 However, when the
jury considered the fact that Cortez had drugs in his room, that
Suarez was staying with James - an admitted conspirator, and that
Cortez more than confided in Suarez, it was rational to conclude
that Suarez was involved. Further, Suarez' presence at
Queenie's house was one more factor for the jury to weigh in its
consideration, given the fact that Queenie's house had been a
established site of the other conspiratorial activity.
ii. Single Versus Multiple Conspiracies.
The appellants' contend that the government did not prove a
single conspiracy to distribute cocaine, but rather at best two
unconnected incidents. Suarez and Perez rely principally on the
fact that they were not involved in the August shipment of
cocaine from Houston to New Orleans. Further, the argue that

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14
because the government alleged only a single conspiracy in the
indictment, and then proved two separate conspiracies, the
defendants were thereby prejudiced.
Cortez, although he was present at both the August and
September incidents contends that he too was prejudiced because
he was "charged with separate offenses in the same count."
Therefore, he contends, that the jury did not have the option of
deciding guilt or innocence on each offense separately. Cortez'
argument totally lacks merit and we need only address Suarez and
Perez' contentions because there was ample evidence to establish
that Cortez the leader of this conspiracy from before August
until September.
As a threshold matter, we note that the appellants' attorneys
failed to object to the jury instruction on proof of a single
conspiracy. Consequently, we will review the trial court's
instruction only for plain error. See United States v. Lokey,
945 U.S. 825, 832 (5th Cir. 1991). Interestingly, if the jury is
properly instructed, then whether the evidence shows a single or
multiple conspiracy is properly within the ken of the jury. See
Gonzales, 866 F.2d at 787; United States v. Erwin, 793 F.2d 656,
662 (5th Cir.), cert. denied, 479 U.S. 991 (1986).
The court below charged the jury that the government had to
prove that a "single overall conspiracy" existed. Additionally,
the court cautioned that proof of several separate conspiracies
was insufficient. Then the court's instruction continued: "if
you are satisfied that such a conspiracy existed, you must then

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15
determine who were the members of that conspiracy . . ."
The Fifth Amendment provides that "[n]o person shall be held
to answer for a capital, or otherwise infamous crime, unless on a
presentment or indictment of a grand jury." U.S. Const. amend.
V. The defendants' Fifth Amendment rights were violated if the
charge "permitted [the jury] to convict the defendant[s] upon a
set of facts distinctly different from that set forth in the
indictment." United States v. Chandler, 858 F.2d 254, 257 (5th
Cir. 1988) (citations omitted). Moreover, a constructive
amendment of the indictment has occurred if the jury is able to
"convict the defendant upon a factual basis that effectively
modifies an essential element of the crime charged." Id.
(quoting United States v. Young, 730 F.2d 221, 223 (5th Cir.
1984)).
Turning to the evidence presented in this case we must
determine whether the jury could have reasonably found that only
one conspiracy existed. Three factors are used to delineate
between a single conspiracy and multiple conspiracies: (i)
whether there was a common goal; (ii) the nature of the scheme;
and (iii) the overlap among the participants in the various
dealings. United States v. DeVarona, 872 F.2d 114, 118 (5th Cir.
1989)). Of course, the jury may draw reasonable inferences from
the evidence adduced during the trial. See, e.g., Lokey, 945
F.2d at 831; Richter, S.A. v. Bank of Am. Nat'l Trust & Savs.
Ass'n, 939 F.2d 1176, 1187 (5th Cir. 1991).
Based on the evidence, Perez' first involvement pre-dated

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16
Cortez' August arrest. Shortly before August, James Singletary
testified that he delivered $70,000 to Perez per Cortez'
instructions. Additionally, a discrepancy in the amount resulted
in Perez contacting Cortez directly. Although, Perez contends
that there was no testimony regarding the origin of the $70,000,
it was well within the jury's discretion to regard the money as
illegal drug proceeds.
Perez' actions during the events that transpired in September
further rooted his membership in the conspiracy. Although Perez
contends that he was just passing through New Orleans, he managed
to hide over 560 grams of cocaine behind an ice machine per
Cortez' request. Prior to hiding the cocaine, Perez originally
went up to Cortez' room at the Bayou Plaza with the Singletarys
to warn Cortez about the perceived DEA presence. Surely, a
reasonable jury could have found Perez's actions were volitional
and constituted overt acts in furtherance of the conspiracy.
Having so concluded, the jury could have traced his involvement
at least back to the time that he played a key role in the
distribution of a large sum of money, which most likely found its
genesis from the sale of cocaine. Therefore, a reasonable jury
could have found that Perez was involved in the conspiracy from
before August until September.
Applying the DeVarona factors to Perez also indicates that one
conspiracy existed. First, the common goal was obviously
distributing cocaine and avoiding detection by the authorities.
Second, the members routinely brought cocaine from Houston to New

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17
Orleans, and then funnelled the proceeds back out of New Orleans
to Houston. Thirdly, Cortez was the hub of the conspiracy on the
appellants' level, and Perez's actions are inextricably
intertwined with Cortez at the outset and at the end of the
conspiracy.
Suarez contends that if he was involved at all, there is
certainly nothing to link him to any actions predating September.
Again, it was well within the jury's discretion to believe James
testimony that Suarez was in cahoots with Cortez' suppliers.
Suarez' presence during the September events was directly related
to the August events because Cortez had to be watched closely so
that he did not have a similar mishap. Suarez may not have
performed his oversight function very well; but nevertheless, his
presence was directly linked to both drug transactions. Once
again, a reasonable jury could have found that Suarez was a
representative of Cortez' supplier and as a result was involved
in the conspiracy from the outset.
iii. The Prosecutor's Remarks During Closing Argument.
The appellants also contend that statements made by the
government during closing argument warrant a reversal of their
convictions. The appellants derive numerous objections from the
government's closing statement: (i) the prosecutor told the jury
that they were representatives of the community and then pointed
to the fact that numerous drug transactions take place in their
community; (ii) the prosecutor referred to the defense counsel as
"resourceful men;" (iii) the prosecutor alluded to the defense's

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10 During his closing argument, Perez' attorney questioned
"where is Dale Singletary?" Later during the government's
rebuttal the prosecutor answered "why didn't they [the defense]
call Dale Singletary? . . . They can call any witness they want."
18
failure to call Dale Singletary; and (iv) the prosecutor referred
to the race and national origin of certain defendants.
First, the appellants argue that the reference to the
community led the jury to consider facts not in evidence. The
court clearly cured any error that may have resulted from that
statement when it instructed "I have instructed you that you are
not to consider what goes on in the community . . . ." Second,
the prosecutor's reference to the defense counsel surely did not
"affect substantially the defendant[s'] right to a fair trial."
United States v. Murrah, 888 F.2d 24, 27 (5th Cir. 1989).
The prosecutor's reference to a defendant's failure to call a
witness is undoubtedly improper. See United States v. Chapman,
435 F.2d 1245, 1247 (5th Cir. 1970), cert. denied, 402 U.S. 912
(1971). However, if the defendant "opens the door," then a
response from the government is permissible. See, e.g., United
States v. Sherriff, 546 F.2d 604, 608 (5th Cir. 1977).10
Further, the jury was adequately instructed that the defendants
did not need to present any evidence. Therefore, even if the
remarks made by the prosecution were improper, then they were
cured by the court's instructions. Finally, the appellants
contend that the prosecution unfairly referred to the race and
national origin of the defendants. The prosecutor referred the
leadership of the organization as the "spanish guys." To be

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19
sure, the prosecution is not allowed to make racially based
arguments before the jury. The comments made by the prosecutor
appear to emanate from his defensible attempt to distinguish
Cortez and the rest from James and his brother Dale. In any
event, in this case, the comments were not prejudicial enough to
constitute reversible error.
iv. The Application of the Sentencing Guidelines.
Perez contends that: (i) the court incorrectly based his
sentence on 3,857.4 grams of cocaine (the total of the August and
September shipments), rather then 560.2 grams of cocaine (the
amount he hid behind the ice machine); (ii) the district court
improperly enhanced his sentence because it found that he
obstructed justice; and (iii) the district court erred in failing
to reduce his sentence because he was a minor participation in
the conspiracy. Appellant Suarez contends that the district
court improperly enhanced his sentence based on his alleged
organizer or leader status.
The factual findings utilized in sentencing hearings need only
be established by a preponderance of the evidence. United States
v. Devine, 934 F.2d 1325, 1339 (5th Cir. 1991), cert. denied, 112
S. Ct. 954 (1992). Further, our review of the district court's
application of the sentencing guidelines is for clear error only.
United States v. Angulo, 927 F.2d 202, 205 (1991).
The prosecution proved at trial that the conspirators
collectively distributed over 3800 grams of cocaine during the
period alleged in the indictment. Perez contends, however, that

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20
he should be sentenced only based on the amount of drugs that he
specifically handled. Well, under U.S.S.G. § 2D1.4 Perez must be
sentenced as if the object of the conspiracy has been achieved.
This is argument is really a reincarnated, but less forceful,
variation of the single versus multiple conspiracy argument,
which we rejected earlier. Certainly, the district court did not
commit clear error when it based Perez' sentence on the total
amount of cocaine involved in the one month time frame.
Next, Perez contends that his sentence was improperly enhanced
for obstruction of justice. U.S.S.G. § 3C1.1 authorizes a two
level upward adjustment if the defendant "wilfully obstructed or
impeded . . . the administration of justice during the sentencing
of the instant offense." Perez told the department of probation
that he was born in Puerto Rico; however, he was unable to offer
any evidence or help to support his contention. Further, the
department could not verify his contention after an extensive
search. The department decided that he hindered their
presentence investigation because it became unclear whether Perez
would be permitted to stay in the United States after he is
released from prison. It was for the trial court to determine
whether Perez was lying. Once again the trial court did not
commit clear error when it adjusted Perez' sentence upward.
Finally, Perez contends that he is entitled to a reduction in
his offense level because he was a minor participant. In effect,
he argues that he was merely a courier. Surely, Perez occupied a
higher position in the organization than James Singletary because

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21
Perez had the power to pay him for delivering the $70,000 cash.
The district court did not commit clear error in this regard.
Suarez challenges the district court's upward adjustment of
his offense level based on his perceived supervisory role.
According to the testimony of James Singletary, Suarez was a
representative of the supplier. Necessarily, the supplier's
representative is superior to members of the lower tiers of
distribution. Surely, the district court did not commit clear
error in this regard.
CONCLUSION
There was sufficient evidence for the jury to conclude that
Perez and Suarez were members of the conspiracy. The government
forwarded enough proof for the jury to find that there was one
ongoing conspiracy. Further, the prosecutor's remarks during
closing argument did not infringe on any of the defendants'
rights sufficient to warrant a reversal. Finally, the court
applied the sentencing guidelines free of clear error.
Therefore, the convictions and sentences of the appellants are in
all respects AFFIRMED.

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