REVISED, September 3, 1999

                 IN THE UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT
                         _____________________

                              No. 98-50698
                         _____________________


            UNITED STATES OF AMERICA,

                                 Plaintiff-Appellee,

            v.

            ALEXIS A LAGE; JOSÉ A LUZARDO; ALBERTO DIAZ,

                                 Defendants-Appellants.

_________________________________________________________________

          Appeals from the United States District Court
                for the Western District of Texas
_________________________________________________________________
                          July 29, 1999

Before KING, Chief Judge, and SMITH and BARKSDALE, Circuit
Judges.

KING, Chief Judge:

     Defendant-appellant Alexis A. Lage appeals his convictions

for conspiracy to commit theft of an interstate shipment in

violation of 18 U.S.C. § 371 and theft of an interstate shipment

in violation of 18 U.S.C. § 659.     Defendant-appellant José A.

Luzardo appeals his convictions and sentence for the same

offenses.    Defendant-appellant Alberto Diaz appeals his

conviction for theft of an interstate shipment.     We affirm.

                  I.   FACTUAL AND PROCEDURAL HISTORY

     This case concerns the theft of an interstate shipment of

computers.    On September 4, 1997, a trailer loaded with Dell

computer parts was placed on a street in Austin, Texas to await
transport to Latham, New York.   When a truck arrived at 12:15

a.m. on September 5, 1997 to pick it up, the trailer was missing.

Although the theft was promptly reported to the Austin police,

they received no leads on the case until September 10, 1997.

     At about 12:30 a.m. on that day, Ronald Stone, a trooper

with the Texas Department of Public Safety’s License and Weight

Service, observed an orange Peterbilt truck towing a trailer,

followed closely by a purple Freightliner truck with no trailer,

traveling east on Interstate Highway 10 (I-10) in Caldwell

County, Texas.   Stone stopped the purple Freightliner because its

lack of a trailer and proximity to the Peterbilt was “unusual,”

and asked the driver, defendant-appellant Alexis A. Lage, for his

driver’s license, registration, and logbook.      Although Lage

produced a Florida commercial driver’s license, Stone determined

that he possessed neither a logbook nor registration to drive a

commercial vehicle in Texas.   Because truckers traveling short

distances are not required to keep a logbook, Stone asked Lage

where he had begun his trip.   Lage replied in broken English that

he was traveling from Dallas, where he had spent three days

looking for work, to Miami, Florida.      Stone found this account

odd because Caldwell County is not on the most direct route from

Dallas to Miami and called Jesse Deleon, a Spanish-speaking state

trooper, to help him communicate with Lage.      Through Deleon,

Stone informed Lage that he would need to post a bond in the

amount of $195.00 to cover the citations for failing to possess a

logbook and proper registration.       Lage told Stone that he had no


                                   2
money, but that his friend in the orange Peterbilt had both the

logbook and money to post bond and that this friend would be

waiting at the next rest stop.

     Leaving Deleon with Lage and his passenger, defendant-

appellant José A. Luzardo, who told Deleon that they were

traveling alone, Stone proceeded to the rest stop to find Lage’s

“friend.”   As he entered the rest stop, he heard an individual

ask over the citizen’s band (CB) radio whether the purple

Freightliner was still pulled over.   Stone responded in the

affirmative and asked if the speaker was in the orange Peterbilt.

The speaker answered “yes.”   When Stone pulled up next to the

Peterbilt, which was parked at the rest stop, and shone a light

inside, he saw defendant-appellant Alberto Diaz talking on the CB

radio.   Diaz immediately dropped the radio microphone, dashed

into the truck’s sleeping compartment, and pulled a curtain

closed behind him.   Stone knocked repeatedly on the cab door and,

when he received no response, called for backup.

     After Fayette County Deputy Sheriff Donald Roberts arrived

on the scene, Diaz and Armando Pedroso emerged from the cab.1

Diaz admitted that he was traveling to Miami but denied that the

driver of the purple truck, whom he claimed he had only met over

     1
        There was some evidence at trial that Diaz either
attempted to appear as though he had been sleeping or actually
had been asleep just before he exited the truck. Stone stated
that “the subject Diaz stuck his head out of the sleeper and
looked over at me. And at that time his hair was all messed up.
Before it was wasn’t [sic] all messed up--looking like he was
asleep.” Roberts stated on cross-examination that when Diaz
stepped out of the truck, he was barefoot, and his hair “was kind
of messed up.”

                                 3
the CB radio, was his “friend.”    Stone asked for his bill of

lading, but Diaz produced only a packing slip indicating that his

cargo weighed twenty-one pounds and was being shipped via United

Parcel Service (UPS) to “M-A,” which Stone interpreted to mean

either Maryland or Massachusetts.      Stone then asked Diaz whether

he was a UPS employee and where the shipment was going.      Diaz

responded that he was working “for them.”      He also agreed to post

bond for the driver of the purple truck.      At that point, Stone

requested permission to search Diaz’s vehicle and received

written consent to do so.    Upon entering the truck, Stone

discovered Reydell Oviedo and a number of Dell computer boxes

stacked in a disorderly fashion.       He then asked the occupants of

the orange Peterbilt, along with Deleon, Lage, and Luzardo, to

accompany him to the Fayette County Fairgrounds in La Grange,

Texas, for further investigation.      After contacting Dell and UPS

and confirming that the computers in the orange Peterbilt had

been stolen, Stone placed Lage, Luzardo, Diaz, Pedroso, and

Oviedo under arrest.   With Roberts’s assistance, he also searched

the purple truck and discovered a fuel receipt from the Dorsett

221 truck stop, a UPS shipping document, a Dell packing slip, and

a set of metal trailer seals matching those on the Peterbilt

trailer.

     A subsequent investigation revealed a great deal more about

the Dell computer theft.    First, after the events described

above, the Hays County, Texas Sheriff’s Department found the

stolen Dell trailer behind a Conoco gas station near Buda, Texas,


                                   4
its identifying numbers obscured with white paint and a plastic

sign.    Oviedo’s fingerprint was discovered on the trailer.

Second, Officer Joe Nichols of the Austin Police Department went

to the Interstate Inn near the Dorsett 221 truck stop, where at

least one of the trucks had fueled, to see if the clerk, Doris

Alexander, recognized any of the five arrestees.      Alexander

confirmed that Lage, Luzardo, Pedroso, and Oviedo had stayed at

the Interstate Inn.    According to Alexander, one morning in the

early part of September 1997, Luzardo and Oviedo asked to rent a

room, but she had none available and told them to come back

later.    At about 11:30 a.m., Lage and Pedroso rented a room, but

Lage and Oviedo returned shortly afterward wanting to move to the

south side of the motel so that they could see their truck.

According to Alexander, the four men stayed at the Interstate Inn

for four days, she saw them several times a day strolling about

the motel, and Lage usually paid for the rooms in cash.      In

addition, Nichols interviewed Ezra Pagel, a clerk at a liquor

store near the Conoco where the stolen trailer was found. Pagel

recalled that Pedroso and Diaz came to his store on September 9,

1997 and asked to use the phone to page someone.      Pedroso asked

where he could park a trailer, and Pagel suggested that he do so

at the Conoco across the street.       The men then told Pagel that if

anyone responded to their page, they would be “down the street,”

staying at the “Dorsett 221.”

     Nichols also went to an address written on a slip of paper

found among Oviedo’s possessions when he was booked into jail.


                                   5
At that location, he found a warehouse where, after obtaining and

executing a search warrant, he discovered over one hundred boxes

of Dell computer parts that later were confirmed as being part of

the stolen shipment.    Clifton Zachary, an Austin real estate

broker, had leased the warehouse after hearing from one of his

associates that an individual named José Matos was looking for

warehouse space.    Zachary contacted Matos, who represented

himself to be the owner of La Tuna Furniture in Miami.     Matos

stated that he needed a warehouse with eighteen-foot clearance

and a loading bay to be used for furniture distribution and gave

Zachary a pager number for his Austin representative, Frank or

Francisco, with whom Zachary set up an appointment to show the

Austin warehouse.    On September 3 or 4, Zachary met at the

warehouse with three men who arrived in an eighteen-wheeler

truck.   One was an unidentified man whom Zachary took to be Frank

or Francisco.   The others were Lage and Luzardo.    The three men

agreed that the warehouse was suitable for their purposes, and

Zachary contacted Matos in Miami to tell him that he needed a

financial statement in order to execute a lease.     Upon receiving

a financial statement by facsimile, Zachary faxed the lease to

Matos, who signed and faxed it back to Zachary.     The next day,

Zachary gave Luzardo and the unidentified man whom Zachary had

assumed to be Frank or Francisco the warehouse key.     At that

time, Luzardo paid the rent with money orders that he signed

“Francisco.”




                                  6
     Nichols also spoke with Andres Ochoa, a warehouse worker who

spoke with Lage, Luzardo and the unidentified man for some thirty

minutes on the day that they came to inspect the warehouse.

Ochoa identified Lage and Luzardo as two of the three men who

arrived in an eighteen-wheeler truck on September 3 or 4 and

characterized Luzardo as “the most important” member of the

group.

     Further investigation in Florida revealed more details about

the theft.   Law enforcement officials discovered, for example,

that one Roberto Quevado had presented Joseph Lima, a Miami

accountant, with documents purporting to describe La Tuna

Furniture’s financial situation and asked him to prepare the

statement that was faxed to Zachary.   Quevado told Lima that

Matos was his partner and that he needed the statement to obtain

a loan.   Investigators also found that Diaz, accompanied by

Pedroso, had borrowed the orange Peterbilt from Guillermo

Echevarria in order to pick up something having to do with

“tuna.”   Finally, an FBI agent went to the various addresses

Matos gave for La Tuna Furniture and found them to be either

single-family residences or non-existent.   Nor did he ever find

Matos.

     On October 7, 1997, a grand jury charged Lage, Luzardo,

Diaz, Pedroso, and Oviedo with one count each of conspiracy to

commit theft of an interstate shipment in violation of 18 U.S.C.

§ 371 and theft of an interstate shipment in violation of 18

U.S.C. § 659.   Oviedo pleaded guilty, and the other defendants


                                 7
proceeded to trial.    The jury convicted Lage and Luzardo of both

counts against them, convicted Diaz only of theft, and acquitted

Pedroso altogether.    The district court sentenced Lage to

concurrent sentences of thirty months in prison, Luzardo to

concurrent sentences of forty-eight months in prison, and Diaz to

twenty-four months in prison.     Lage and Diaz appeal their

convictions.     Luzardo appeals both his convictions and sentence.

                            II.   DISCUSSION

     A.   Lage

     Lage’s only challenge to his conviction is that the

introduction of evidence discovered during Stone and Roberts’s

inventory search of the purple Freightliner violated his Fourth

Amendment rights.    Before trial, Lage filed a motion to suppress,

which the district court denied after a hearing, finding that

“the evidence obtained from the purple semi was collected

pursuant to a valid routine inventory search.”     On appeal, Lage

contends that while a warrantless inventory search is permissible

if conducted in accordance with standardized regulations and

procedures, there was no evidence that Stone and Roberts in fact

followed such rules.    Therefore, Lage maintains, the district

court should have suppressed the evidence obtained as a result of

the inventory search.    We disagree.

     When a defendant-appellant challenges a district court’s

denial of a motion to suppress evidence allegedly obtained

through an illegal search, we review the lower court’s

factfinding for clear error and its conclusion as to the


                                    8
reasonableness of the search de novo.     See United States v.

Andrews, 

, 1333 (5th Cir. 1994).    We view the

evidence at both the suppression hearing and the trial in the

light most favorable to the prevailing party.     See United States

v. Ponce, 

, 995 (5th Cir. 1993).

     Under the Fourth Amendment, warrantless searches are

presumptively unreasonable.   See Horton v. California, 

, 133 (1990).   There is, however, an exception to the warrant

requirement when a law enforcement officer conducts an inventory

of seized property if that inventory is part of a bona fide

police “routine administrative caretaking function.”     United

States v. Skillern, 

, 1275 (5th Cir. 1991).      Under

these circumstances, the Fourth Amendment requires only that an

inventory not be a “ruse for a general rummaging in order to

discover incriminating evidence.”     United States v. Walker, 

, 1068 (5th Cir. 1991) (internal quotation marks

omitted).   “In order to prevent inventory searches from

concealing such unguided rummaging, [the] Supreme Court has

dictated that a single familiar standard is essential to guide

police officers, who have only limited time and expertise to

reflect on and balance the social and individual interests

involved in the specific circumstances they confront.”     

marks omitted).

      Thus, an inventory search of a seized vehicle is reasonable

and not violative of the Fourth Amendment if it is conducted

pursuant to standardized regulations and procedures that are


                                 9
consistent with (1) protecting the property of the vehicle’s

owner, (2) protecting the police against claims or disputes over

lost or stolen property, and (3) protecting the police from

danger.    See United States v. Hope, 

, 116 (5th Cir.

1996).    There is no requirement that the prosecution submit

evidence of written procedures for inventory searches; testimony

regarding reliance on standardized procedures is sufficient, see

United States v. Como, 

, 92 (5th Cir. 1995), as is an

officer’s unrebutted testimony that he acted in accordance with

standard inventory procedures, see United States v. Bullock, 

, 178 (5th Cir. 1995).

     Our review of the record convinces us that there is ample

evidence that the inventory search was conducted according to

standardized procedures.    At the suppression hearing, Stone

stated that he and Roberts conducted an inventory search of the

purple Freightliner after placing the defendants under arrest.

The following exchange took place between Stone and the

prosecutor:

     Q. And is that routine if you place somebody under arrest,
     that you do an inventory search?

     A.   Yes, sir, for liability purposes.

     Q.   And when you say “liability,” what do you mean?

     A. If there’s something missing, I can have note that I
     inventoried that it was there or where it went to.

This testimony establishes that the inventory search of the

purple Freightliner was a routine post-arrest procedure designed

to protect the vehicle’s owner from property loss and the law


                                 10
enforcement agency from claims for lost or stolen items.   Later

in the suppression hearing, Stone explicitly testified that he

conducted the inventory search in accordance with standardized

procedures:

     Q. [by Lage’s counsel] The inventory that was conducted,
     did you conduct the inventory yourself?

     A.   Yes, sir.

     Q. Did you do that in accordance with DPS policies and
     guidelines?

     A.   Yes, sir.

     Q. And was that done after Mr. Lage was arrested or before
     he was arrested?

     A.   It was after.

In light of this unchallenged testimony, we cannot say that the

district court’s finding that Stone acted in accordance with

standard inventory procedures was clearly erroneous.   Compare

(“The officer’s unrebutted testimony is

sufficient to establish that he acted in accordance with standard

inventory procedures.”), with 

(stating that

Bullock’s “minimal threshold was not met in the case at bar where

we find no testimony that referred to Memphis police department

guidelines, or that they were followed, but only the statement by

the officer that, ‘I believe the Memphis police did inventory the

vehicle’”).

     Nor does Roberts’s testimony convince us that the inventory

search in this case violated the Fourth Amendment.   On direct

examination, Roberts testified as follows:



                               11
     Q. Ultimately did you participate in the inventory search
     of the purple Freightliner?

     A.   Yes, sir.

     Q. What was the purpose of conducting this inventory search
     of the purple Freightliner?

     A. For the reason of--we inventory all vehicles for the
     reason to have a list of things of value if the vehicle is
     locked up so it’s not removed and someone gets blamed for
     taking things out of the vehicle.

Later, the following colloquy between Roberts and Lage’s counsel

ensued:

     Q. Now, the inventory that was conducted of that purple
     Freightliner, was that done by you?

     A.   I assisted in it.

     Q.   Did you do that?

     A.   Yes, sir.

     Q. Does Fayette--does the Fayette County Sheriff’s
     Department have any regulations or rules with respect to
     inventorying vehicles?

     A. No, sir. It was to the fact of--you mean do we have a
     set of ground rules that we go by?

     Q.   Absolutely.

     A. Yes, sir. To an extent it’s basically done for our
     protection, you might say.

     Q. Is that done--I guess what I’m asking you is, have they
     promulgated rules? Has the Fayette County Sheriff’s
     Department promulgated rules with respect to inventory
     searches?

     A.   There’s--no, sir, not to my knowledge.

     Q. So it would be fair to say that the inventory search of
     this vehicle was not done pursuant to a promulgated set of
     rules.

     A.   I guess you’re correct in saying that.



                                   12
Even in light of this testimony, we cannot say that the district

court’s finding that the evidence obtained from the Freightliner

was collected pursuant to a “valid routine inventory search” was

clearly erroneous.   Roberts merely “assisted” Stone in conducting

the inventory search, and the evidence shows that the search was

conducted in accordance with the policies and procedures of

Stone’s agency, the Texas Department of Public Safety.    Because

the inventory search was conducted pursuant to standardized

practices and procedures, it was not an unreasonable search in

violation of the Fourth Amendment.

B.   Luzardo

     Luzardo challenges both his convictions and his sentence.

With respect to the former, he contends that the evidence adduced

at trial is insufficient to support his convictions for

conspiracy to commit theft of an interstate shipment and theft of

an interstate shipment, as it showed at most that he was a

passenger in the purple Freightliner.   As for his sentence,

Luzardo argues that the district court clearly erred in finding

that he was a leader in a conspiracy involving five or more

participants and that the offense involved more than minimal

planning.   We address these contentions in turn.

     1.   Sufficiency of the Evidence

     We review a claim that the evidence is insufficient to

support a conviction in the light most favorable to the verdict,

accepting all credibility choices and reasonable inferences made

by the jury.   See United States v. McCord, 

, 1439


                                13
(5th Cir. 1994).   We must uphold the conviction if a rational

jury could have found that the government proved the essential

elements of the crime charged beyond a reasonable doubt.    See

United States v. Soape, 

, 264 (5th Cir.), cert.

denied, 

(1999).    It is not necessary that the

evidence exclude every reasonable hypothesis of innocence or be

wholly inconsistent with every conclusion except that of guilt.

See United States v. Lopez, 

, 577 (5th Cir. 1996).

This standard of review is the same regardless of whether the

evidence is direct or circumstantial.    See United States v.

Cardenas, 

, 1156 (5th Cir. 1993).

     To establish a violation of 18 U.S.C. § 371, which forbids

criminal conspiracies, the government must prove beyond a

reasonable doubt (1) that two or more people agreed to pursue an

unlawful objective, (2) that the defendant voluntarily agreed to

join the conspiracy, and (3) that one or more members of the

conspiracy committed an overt act to further the objectives of

the conspiracy.    See United States v. Campbell, 

, 974

(5th Cir. 1995).   Moreover, the government must prove “at least

the degree of criminal intent necessary for the substantive

offense itself.”   United States v. Osunegbu, 

, 475

(5th Cir. 1987).   In order to establish theft of an interstate

shipment in violation of 18 U.S.C. § 659, as charged in the

indictment, the government must show that Luzardo stole,

unlawfully took, carried away, or concealed items that were part




                                  14
of an interstate or foreign shipment of freight, with the intent

to convert them to his own use.    See 18 U.S.C. § 659.

     After a careful review of the record, we believe that there

is sufficient evidence to support both of Luzardo’s convictions.

As we recounted above, Stone identified Luzardo as the passenger

in the purple Freightliner, which was traveling in close

proximity to the orange Peterbilt carrying the stolen computers.

The Freightliner was registered to Oviedo, a passenger in the

orange Peterbilt whose fingerprint was on the stolen Dell

trailer.   In addition, Deleon testified that Luzardo stated that

he and Lage were not traveling with anyone, but Lage claimed to

have a friend in the orange Peterbilt.    Luzardo also met several

times with Zachary, the real estate broker who rented the

warehouse in which stolen computers were found.   In the course of

those meetings, he accepted the key to the warehouse and paid the

rent with money orders on which he signed his name as “Francisco”

and indicated that his address was “3055 NW 19th St FL.”    Luzardo

was so active in his dealings with Zachary that Ochoa, a

warehouse worker, described him as “seem[ing] more important or

talk[ing] more” than the other two men.   Finally, Luzardo was

seen with Lage, Pedroso, and Oviedo at a motel after the theft,

where two of his companions asked for a room from which they

could see their trailer.   The evidence also demonstrates that

around the same time, Pedroso asked a liquor store clerk where he

could store his trailer, and the clerk pointed out a location

where the stolen Dell trailer later was found.


                                  15
     There are, of course, innocent explanations for Luzardo’s

behavior.   For example, Luzardo could have been unaware that

Oviedo, with whom he had spent the last few days at a motel, was

only a few yards ahead of him in another truck and that, for some

time, he had been in possession of a trailer full of stolen

computers so important to him that he asked for a room change.

It is also theoretically possible that Luzardo, a resident of

Florida, came to Texas, engaged in negotiations to rent a

warehouse, signed money orders with a false name and address, and

went on a cross-country truck drive with a load of computers as a

favor to his friends, believing that their request that he do so

was completely innocent.    But factfinders may properly “use their

common sense” and “evaluate the facts in light of the natural

tendencies and inclinations of human beings.”    United States v.

Ayala, 

, 67 (5th Cir. 1989) (citation and internal

quotation marks omitted).   A rational jury could have concluded

that a person who is not engaged in both a conspiracy to commit

theft of an interstate shipment and the substantive crime itself

generally does not travel with stolen merchandise for days at a

time, insist that he is not traveling with the owner of the truck

in which he is riding when that person is immediately ahead of

him in a similar vehicle and his companion says that a person in

the truck ahead is a “friend,” engage in lengthy negotiations to

rent a warehouse in which his associates store large quantities

of stolen goods, and sign rent checks under an assumed name and




                                 16
address.    The evidence was sufficient to support Luzardo’s

convictions.




     2.    Sentencing Issues

            a.   Section 3B1.1(a)

     Section 3B1.1(a) of the Sentencing Guidelines Manual

provides for a four-level offense level increase for a defendant

who is an organizer or leader of a criminal activity that

involved five or more participants or was otherwise extensive.

See U.S. SENTENCING GUIDELINES MANUAL § 3B1.1(a) (1997).   The

commentary defines “participant” as a person who is criminally

responsible for the commission of the offense, but the person

need not have been convicted.       See 

1.   We

review the district court’s finding that a defendant is an

organizer or leader under § 3B1.1(a) for clear error.        See United

States v. Izydore, 

, 224 (5th Cir. 1999).        Factual

findings are not clearly erroneous if they are plausible in light

of the record as a whole, see United States v. Whitlow, 

, 1011 (5th Cir. 1992), although there must be an acceptable

evidentiary basis for the court’s factfindings at the sentencing

hearing, see United States v. Ayala, 

, 690 (5th Cir.

1995).

     We conclude that the district court’s finding that Luzardo

was a leader of a criminal activity involving five or more


                                    17
participants was not clearly erroneous.       We first note that

Luzardo has never contested that the criminal activity of which

he was convicted involved five or more participants.         Rather, he

argues only that he was not a leader of that activity.         In

determining whether a defendant is a leader, a court should

consider the following factors: “the exercise of decision making

authority, the nature of participation in the commission of the

offense, the recruitment of accomplices, the claimed right to a

larger share of the fruits of the crime, the degree of

participation in planning or organizing the offense, the nature

and scope of the illegal activity, and the degree of control and

authority exercised over others.”      U.S. SENTENCING GUIDELINES MANUAL

§ 3B1.1 application note 4; United States v. Navarro, 

, 235 (5th Cir. 1999), petition for cert. filed, --- U.S.L.W.

--- (U.S. June 1, 1999) (No. 98-9659).

     In this case, the presentence investigation report (PSR), as

revised in response to the government’s objections, found that he

was eligible for a § 3B1.1(a) adjustment.       A PSR generally bears

sufficient indicia of reliability to permit the sentencing court

to rely on it at sentencing.     See United States v. Gracia, 

, 629 (5th Cir. 1993).    Indeed, the defendant bears the

burden of demonstrating that the PSR is inaccurate.         See 

.   Although Luzardo testified at his sentencing

hearing and insists in his appellate brief that he was not a

leader, the government pointed out at sentencing that Zachary had

identified Luzardo as the individual who signed the rent checks


                                  18
and that Ochoa had described Luzardo as seeming more important or

talking more than the other men who came to look at the

warehouse.   This evidence supports an inference that Luzardo

possessed some decisionmaking power, participated extensively in

the crime, and exercised control and authority over his co-

conspirators.    We think that the district court’s conclusion that

Luzardo was a leader was plausible in light of the record as a

whole, see 

, and we therefore decline to

find clear error.

           b.   Section 2B1.1(b)(4)

     Section 2B1.1(b)(4) of the Sentencing Guidelines directs the

sentencing court to increase a defendant’s offense level by two

levels “[i]f the offense involved more than minimal planning.”

U.S. SENTENCING GUIDELINES MANUAL § 2B1.1(b)(4).   The Guidelines

define “more than minimal planning” as “more planning than is

typical for commission of the offense in a simple form.”        

application note 1(f).     Whether a defendant engages in

more than minimal planning is a fact question reviewed under the

clearly erroneous standard.     See United States v. Barndt, 

, 204 (5th Cir. 1990).

     We find no clear error in the district court’s determination

that Luzardo’s offenses involved more than minimal planning.

First, the PSR found that Luzardo’s offense involved more than

minimal planning on his part and recommended a two-level offense

level adjustment under § 2B1.1(b)(4).      As we noted above, Luzardo

bears the burden of demonstrating that the PSR is inaccurate.


                                   19
See 

.     He has failed to do so.   At

sentencing and on appeal, he offers only his own insistence that

he engaged in no planning whatsoever.     The testimony at trial,

however, showed that Luzardo helped examine and approve a

warehouse used to store the stolen computers, picked up the

warehouse key, and signed rent checks with an assumed name and

address.     In other words, Luzardo arranged a manner of concealing

the theft that required numerous contacts with a real estate

broker, the acquisition of money orders, and the use of false

information.     The commentary to § 1B1.1 indicates that this

activity constitutes more than minimal planning:

     In a theft, going to a secluded area of a store to conceal
     the stolen item in one’s pocket would not alone constitute
     more than minimal planning. However, repeated instances of
     such thefts on several occasions would constitute more than
     minimal planning. Similarly, fashioning a special device to
     conceal the property, or obtaining information on delivery
     dates so that an especially valuable item could be obtained,
     would constitute more than minimal planning.

U.S. SENTENCING GUIDELINES MANUAL § 1B1.1 application note 1(f)

(emphasis added).     We therefore cannot say that the district

court clearly erred.

C.   Diaz

     Diaz challenges his conviction for theft of an interstate

shipment on only one ground, that the admission of non-testifying

codefendant Pedroso’s statement violated his Sixth Amendment

right to confrontation as explained by Bruton v. United States,

(1968).     At trial, Officer Joe Nichols of the Austin

Police Department testified that he interviewed Pedroso after his

arrest.     According to Nichols, Pedroso stated that although he

                                  20
agreed to travel from Miami to Texas with Diaz in order to learn

to operate an eighteen-wheeler truck, he spent most of the trip

in the sleeper compartment because he was suffering from a severe

headache.   He was awake only twice during the journey:   At one

point, Diaz called an unidentified party on his cellular phone,

and Pedroso called his family in Miami.   He then returned to the

sleeper compartment.   Later, he awoke to find the truck “backed

into” a warehouse.   There, he met an individual known as

“Alexis,” who identified himself as the warehouse manager.    The

prosecution then asked Nichols:

     Q. [by counsel] And what did he indicate to you was
     occurring at this warehouse?

     A. That they were loading the boxes into the truck that he
     was in, and that he inquired to the other people there of
     why they were loading by hand. Why didn’t they have a
     pallet jack that would make the job much easier.

     Q. What if anything did he indicate his participation was
     in assisting and loading boxes?

     A. He would never say that he actually participated a lot
     in the loading. What he did say was, there were so many
     boxes--he was standing next to them--that somebody would
     make the comment, “Hey, hand us one of those.”
          And that he said he would just in a response to them
     asking for his help, he would lift the box, but he didn’t
     actively participate in loading up all the boxes.

     Q. And these boxes are the Dell computer boxes that he’s
     talking about, correct?

     A.   Correct.

     Q. Did he indicate how long it took for this loading
     process to occur, loading the trailer?

     A. He stated that it took approximately five to six hours
     to load the truck.

     Q. What did he indicate occurred after the boxes were
     loaded into the trailer?

                                   21
     A. At that time he got into the truck that he and Mr. Diaz
     had arrived in. He turned to Mr. Diaz and asked him, “Where
     are we going?”
          And Mr. Diaz said--I believe he said home. And Mr.
     Pedroso told me he assumed that meant that they were going
     back to Miami. At that time Mr. Oviedo jumped into the
     truck with them, and he said at that time he still wasn’t
     feeling very well, so he got back into the sleeper portion
     of the truck.

     Q. And did he indicate to you what the circumstances were
     when he was next awake?

     A. He said the next time he remembers being awakened was,
     Mr. Diaz jumped on top of him from the driver’s portion of
     the truck into the back portion--sleeper portion of the
     truck, and he didn’t know what was going on. And the next
     thing he remembers was that the police were knocking on the
     exterior portion of the truck.

Nichols also testified that Pedroso later stated that he saw Lage

and Luzardo for the first time when they were booked into jail,

thus contradicting his earlier assertion that “Alexis” was

present at the warehouse.    Prior to trial, Diaz filed a motion in

limine to exclude Pedroso’s statement.    The district court denied

the motion and overruled Diaz’s objection at trial to the

introduction of the statement, instead instructing the jury in

its closing charge to consider a defendant’s post-arrest

statement only against that defendant.

     The Sixth Amendment’s Confrontation Clause guarantees a

criminal defendant the right “to be confronted with the witnesses

against him.”   U.S. CONST. amend. VI.   In Bruton, the trial court

admitted into evidence the oral confession of George Bruton’s

non-testifying codefendant that he and Bruton committed armed

robbery together but instructed the jury not to consider the

confession against Bruton.    

.   The Supreme


                                 22
Court held that notwithstanding such an instruction, admission of

a non-testifying codefendant’s extrajudicial statement violates a

defendant’s confrontation right:

     [T]here are some contexts in which the risk that the jury
     will not, or cannot, follow instructions is so great, and
     the consequences of failure so vital to the defendant, that
     the practical and human limitations of the jury system
     cannot be ignored. Such a context is presented here, where
     the powerfully incriminating extrajudicial statements of a
     codefendant, who stands accused side-by-side with the
     defendant, are deliberately spread before the jury in a
     joint trial. Not only are the incriminations devastating to
     the defendant but their credibility is inevitably
     suspect . . . . The unreliability of such evidence is
     intolerably compounded when the alleged accomplice, as here,
     does not testify and cannot be tested by cross-examination.

(citations omitted).   In Richardson v. Marsh, 

(1987), the Court considered whether Bruton applies to a

non-testifying codefendant statement that has been redacted so as

to omit not only the name of the defendant but all reference to

her existence.   Marsh and her codefendant, Williams, were tried

jointly for felony murder.   The prosecution introduced Williams’s

statement that, while traveling together in a car to the victims’

residence, he and a third individual decided that they would rob

and kill the victims.   As we related above, the government

deleted all hint of Marsh’s existence from this confession.

After the state rested, however, Marsh testified that she had not

intended to rob or kill anyone and, although she rode to the

victims’ house with Williams and a third person, she could not

hear their conversation because the radio was too loud.   See 

  The Court distinguished Williams’s statement from the

“facially incriminating confession” in Bruton and concluded that


                                23
because “in this case the confession was not incriminating on its

face, and became so only when linked with evidence introduced

later at trial (the defendant’s own testimony) . . . it is a less

valid generalization that the jury will not likely obey the

instruction to disregard the evidence.” 

    We have

interpreted this case law to mean that “Bruton is inapplicable

unless the codefendant’s statement ‘directly incriminates the

non-confessing defendant without reference to other, admissible

evidence.’”     United States v. Mann, 

, 860 (5th Cir.

1998) (quoting United States v. Espinoza-Seanez, 

,

534 (5th Cir. 1988)), cert. denied, 

(1999).

     Our task is therefore to determine whether Pedroso’s

statement is the sort of powerfully, facially, or directly

incriminating statement that Bruton and its progeny concluded a

jury could not put out of mind, even when given proper limiting

instructions.    In Gray v. Maryland, 

(1998), the

Supreme Court recently said that although Marsh “placed outside

the scope of Bruton’s rule those statements that incriminate

inferentially,” the result in that case “must depend in

significant part upon the kind of, not the simple fact of,

.2   Gray concluded that redacted

     2
        Indeed, this conclusion is implicit in the reasoning of
Marsh itself. There, the Court assumed that Marsh “would have
been harmed” if the jury used against her both (1) Williams’s
statement that he and Martin discussed in the car their intention
to kill the victims and (2) Marsh’s own testimony that she was
riding in the back seat of the car at the time, because these two
pieces of evidence could show that Marsh knew beforehand that the
victims would be killed. See 

n.3. To
reach this conclusion, however, the jury would have had to infer

                                  24
statements that merely replace the defendant’s name with a blank

space or the word “deleted” implicate Bruton because “the

inferences at issue . . . involve statements that, despite

redaction, obviously refer directly to someone, often obviously

the defendant, and which involve inferences that a jury

ordinarily could make immediately, even were the confession the

very first item introduced at trial.”     

confession

in Bruton itself, the accusation that the redacted confession

makes ‘is more vivid than inferential incrimination, and hence

more difficult to thrust out of mind.’”     Id. (quoting 

).   Thus, the Supreme Court precedent teaches with

respect to some inferentially incriminating statements,

     the judge’s instruction may well be successful in dissuading
     the jury from entering onto the path of inference in the
     first place, so that there is no incrimination to forget.
     In short, while it may not always be simple for the members
     of a jury to obey the instruction that they disregard an
     incriminating inference, there does not exist the
     overwhelming probability of their inability to do so that is
     the foundation of Bruton’s exception to the general rule.

.   Although both Marsh and Gray involved

situations in which the non-testifying codefendant’s statement

did not refer to the defendant by name, such that the inference

the jury would have made was whether the defendant was in fact

present during the events recounted in the statement, they speak

in general terms about inferential incrimination.3     We therefore


Marsh’s knowledge from her presence.
     3
        We note that many of the cases the government cites to
support its argument address whether oblique references to the
defendant are powerfully, facially, or directly incriminating so
as to trigger Bruton and conclude that they are not because the

                                25
interpret the language of these cases to apply even when the

defendant is named, but the content of the statement is

incriminating only if the jury draws certain inferences from it.

     With these principles in mind, we turn to Pedroso’s

statement.   Diaz argues that “Pedroso’s out-of-court statement

did reflect Diaz’s guilt” because “it placed Diaz at the scene

when stolen computers were being loaded into his truck, and it

confirmed Officer Stone’s testimony that Diaz’s behavior

indicated consciousness of guilt.”   In fact, Pedroso’s statement

said simply that Diaz backed the truck into the warehouse and

drove it away after it was loaded.   Pedroso is utterly silent as

to Diaz’s whereabouts and activities during the loading process.

Of course, it is possible that the jury inferred that Diaz



defendant is not explicitly named. See United States v. Leal, 

, 605-06 (5th Cir. 1996) (concluding that there was no
Bruton violation where the district court ordered the redaction
of all references to other defendants from non-testifying
codefendant’s statement); United States v. Cartwright, 

, 300 (5th Cir. 1993) (rejecting defendant’s Bruton argument
because his father/codefendant’s statement referred to “my kid,”
not to defendant by name); United States v. Restrepo, 

, 185-86 (5th Cir. 1993) (finding no Bruton violation where
codefendant’s extrajudicial statement “never directly mentioned
Restrepo” but referred only to the need to rent a warehouse as a
drug “caleta,” or hiding place, and to hire someone to mind the
caleta); United States v. Payan, 

, 1393 (5th Cir.
1993) (rejecting defendant’s Bruton argument where non-testifying
codefendant stated that there were “rich and powerful people
involved” in the criminal scheme and defendant’s own attorney
characterized his family as “people of some wealth” and “some
power in the community”). While Gray’s gloss on Marsh’s view of
permissible inferential incrimination may require further
refinement of the rationale for some of these cases, we did hold
in Walker that a codefendant’s statement that his “home boy” had
lied for him did not directly incriminate the defendant, although
other evidence showed that the defendant might have been that
person. See 

.

                                26
remained at the scene4 and decided based on that conclusion that

he knew that he would be carrying stolen property.    But while the

statement mentions Diaz by name, it is harmful to his defense

only if the jury makes several inferential jumps.    Thus, it is

not “more vivid” than the inferential incrimination in Marsh, and

we do not think that there is here “the overwhelming

probability,” as there was with the “powerfully incriminating”

finger-pointing in Bruton, that the jurors will disobey the

instruction to consider the statement against Pedroso but no one

else.    Cf. 

(finding no direct incrimination

where codefendant’s statement was exculpatory and became

potentially inculpatory only when contrasted with defendant’s own

out-of-court statements); United States v. Jobe, 

,

1067 n.28 (5th Cir. 1996) (holding that codefendant’s statement

that defendant declined to explain his involvement in illegal

transaction was not directly incriminating).

     4
        We recognize that the government argued repeatedly that
the jury should infer from Pedroso’s statement that Diaz was
present during the loading of the boxes into his truck and that
he knew they contained stolen property. For example, the
prosecutor asserted during closing argument:

     Clearly Mr. Diaz knew what was going on. He was at that
     warehouse. And as his lawyer said, an experienced truck
     driver. You think he’s just standing idly by not seeing
     what’s being loaded into his truck? Doesn’t have anything
     to do with it? You think he’s just sleeping? The doors get
     closed and he drives off? If that’s what you believe, then
     I guess you can say that Mr. Diaz didn’t know anything.

As we explained above, however, Pedroso’s statement did not
explicitly state that Diaz observed or participated in the
loading of his truck, and, as the district court instructed the
jury, lawyers’ arguments that the factfinders should draw certain
inferences from testimony are not evidence.

                                 27
     Pedroso’s assertion that he was awakened when Diaz “jumped

on top of him from the driver’s portion of the truck . . . . And

the next thing he remembers was that the police were knocking on

the exterior portion of the truck,” presents a more difficult

question.   Even assuming that the admission of this statement

violated Bruton, however, it was harmless beyond a reasonable

doubt.   It is well-established that Bruton error is subject to

harmless error analysis.   See, e.g., United States v. Nutall, No.

97-51050, 

, at *4 (5th Cir. June 25, 1999); United

States v. Walker, 

, 526 (5th Cir. 1998).   The

reviewing court must consider “not what effect the constitutional

error might generally be expected to have upon a reasonable jury,

but rather what effect it had upon the guilty verdict in the case

at hand.”   Sullivan v. Louisiana, 

, 279 (1993).     The

courts have found Bruton error harmless where the erroneously

admitted evidence is “merely cumulative of other overwhelming and

largely uncontroverted evidence properly before the jury.”     Brown

v. United States, 

, 231 (1973); see United States v.

Wilson, 

, 1083-84 (5th Cir. 1997) (finding Bruton

violation harmless beyond a reasonable doubt because the

erroneously admitted evidence was “merely cumulative”), reheard

en banc on other grounds sub nom. United States v. Brown, 

(5th Cir. 1998); see also United States v. Gillam, 

, 1277 (9th Cir. 1999) (finding Bruton error harmless

where “the testimony erroneously admitted was merely cumulative

of other overwhelming and essentially uncontroverted evidence


                                28
properly admitted”); cf. United States v. Smith, 

,

1229 (1st Cir. 1995) (concluding that a statement cumulative of

other evidence “could not have produced Bruton error”).    In this

case, Pedroso’s statement did no more than corroborate Stone’s

largely uncontroverted testimony that when he shined his

flashlight into the orange Peterbilt, Diaz threw down the CB

microphone and jumped into the sleeper compartment.   Diaz’s

counsel cross-examined Stone as to his ability to see into the

truck, but Stone flatly denied that his vision was obstructed or

that there was anything more than a factory tint on the window.

Moreover, counsel also suggested during cross-examination that

Diaz’s response to Stone was not evidence of guilty knowledge

and, during closing argument, abandoned altogether the theory

that Stone was mistaken in his description of Diaz’s actions,

arguing instead that “it’s not uncommon for someone to drop their

CB and jump in the back or hide or whatever.”   Because Pedroso’s

assertion that Diaz jumped on him was merely cumulative of

Stone’s testimony, we conclude that any Bruton error arising from

its admission was harmless.

                        III.   CONCLUSION

     For the foregoing reasons, we AFFIRM the judgments of

conviction and sentences.




                                29