JENNIFER WALKER ELROD, Circuit Judge:
A jury in the Eastern District of Texas convicted Cristian Alejandro Rodriguez-Lopez and Luis Narcisco Barron (collectively, "defendants") of conspiring to distribute marijuana. The district court sentenced each defendant to a term of imprisonment. Rodriguez-Lopez argues on appeal that venue was improper in the Eastern District and that the evidence was insufficient to sustain the conviction. Rodriguez-Lopez also argues that the district court improperly calculated his offense level for sentencing purposes. Barron, in a separate appeal, argues that the evidence was insufficient and that the prosecutor made improper statements in closing arguments. Barron also challenges the calculation of his offense level. We consolidated the defendants' separate appeals. We affirm Rodriguez-Lopez's conviction and sentence. We also affirm Barron's conviction. We vacate Barron's sentence, however, and remand for resentencing.
This case arose out of two federal law enforcement investigations: one focused on illegal drug trafficking and the other on illegal firearms trafficking.
Brothers Roberto and Erasmo Marquez ran a cell of the Cavazos organization in north Texas. Roberto Marquez communicated directly with Cavazos. The Marquez cell used three interrelated stash houses, on three nearby streets known as Charlestown, Jamestown, and Brookstown. In 2007 and 2008, Rodriguez-Lopez, also known as "Puma," lived in, and was named on the lease for, the Brookstown house. According to two other individuals involved in the operation, Jesus Marquez (brother to Roberto and Erasmo) and Cesar Morales, Rodriguez-Lopez lived rent-free in exchange for his drug-distribution services. Jesus Marquez described the fundamentals of each house thus:
Jesus Marquez also testified that Rodriguez-Lopez, who was married to the Marquez brothers' niece, was Roberto Marquez's "right hand" man. Accordingly, Rodriguez-Lopez would get his choice of marijuana to sell. As a man of high status, Rodriguez-Lopez also had the ability within the cell to "tell other people what to do." Rodriguez-Lopez kept a rusty Berretta handgun for protection, given the danger associated with such large quantities of marijuana. After Rodriguez-Lopez and the others had distributed the marijuana, a man known as "Commandante" would collect the profits, on Cavazos's behalf, from each of the stash houses.
Twice federal agents seized Cavazos organization trucks that were carrying marijuana, once in 2005 in Tyler, Texas, and once in 2006 in Dallas. On June 11, 2008, federal agents executed search warrants at each of the Dallas stash houses. Rodriguez-Lopez was at home at the Brookstown house, where the agents recovered: drug ledgers (including one ledger entitled "Notas de Puma"), a receipt for plastic wrapping, packaging materials, a small amount of marijuana, digital scales, over $47,000 in cash, a money counter, two firearms (including a rusty Berretta), and body armor. At the Jamestown house, the agents seized: drug ledgers, 1,000 pounds of marijuana, packaging materials, other narcotics paraphernalia, two firearms, and over $247,000 in cash. And at the Charlestown house, the agents found: drug ledgers, 35 pounds of marijuana, digital scales, one firearm, Roberto Marquez's passport, and over $1,000,000 in cash.
The drug ledgers at each house contained information about the Marquez cell's inventory. Rodriguez-Lopez's personal accounts in the ledgers for the three houses reflected more than 5,000 pounds of inventory; the separate "Notas de Puma" ledger reflected another 2,000 pounds. An FBI forensics specialist examined the ledgers and testified that between September 28, 2007, and May 7, 2008, the marijuana inventory for the Brookstown, Jamestown, and Charlestown houses amounted to approximately 138,000 pounds. The specialist also testified that the Brookstown house distributed to forty-seven different accounts from January 2004 to November 2007.
The United States linked Barron to the Cavazos organization through firearms transactions. As part of an investigation into the Mexican drug cartels' supply of firearms, federal agents learned that Barron's cousin, Roberto Flores, was acting as a straw buyer for Barron. The agents convinced Flores to cooperate, and from 2006 until 2008 Flores helped gather evidence of Barron's firearms trafficking business by continuing to engage in firearms transactions on behalf of Barron — often while wearing a wire. The testimony at trial further revealed that, prior to Flores's cooperation, Oscar Gomez, one of Cavazos's closest lieutenants, approached Barron at Cavazos's request in 2005. Cavazos had given Barron's phone number to Gomez. Cavazos needed the firearms to protect his business — various Mexican drug cartels were at war. After Barron and Gomez agreed on a purchase price for military-style weapons, Cavazos signed off on the deal. Barron took the firearms to the border, and Cavazos's men then smuggled the firearms into Mexico. Barron and Gomez's relationship continued: On at least three subsequent occasions, following
Based on the foregoing, a grand jury returned a five-count indictment, naming twenty-three defendants. Pertinent here, Rodriguez-Lopez and Barron
Only three defendants, including Rodriguez-Lopez and Barron, went to trial, where the above-described facts unfolded.
The district court denied the motions as to the marijuana conspiracy.
In closing arguments, in an effort to demonstrate that he "g[o]t it" and that he was "all for backing the blue," defense counsel for Barron commented that his "dad was an FBI agent" and that he had been "a state and federal prosecutor" and "an elected trial judge for four years." The Assistant U.S. Attorney then argued on rebuttal, attempting to show motive and apparently partially responding to defense counsel's rhetoric: "Why does someone sell drugs? Why does someone sell firearms on an illegal market? Why does someone leave the U.S. Attorney's Office and lend their credibility to representing drug traffickers and firearms dealers?" Pursuant to an objection, the district court immediately instructed the jury to disregard that statement, explaining that the statement was "totally improper." The district court informed the jury that Barron's defense counsel "ha[d] every right to represent a criminal defendant" and that "everyone has a right to a defense."
Approximately twelve days after the jury returned its verdict, Barron filed a motion for a new trial based on the prosecutor's comments on rebuttal. The district court denied the motion in a written order, concluding that Barron's substantial rights were not affected.
At Rodriguez-Lopez's sentencing hearing, the district court calculated Rodriguez-Lopez's base offense level to be 38. To arrive at that number, the district court found — over Rodriguez-Lopez's objection — that Rodriguez-Lopez was responsible for more than 30,000 kilograms (i.e., approximately more than 66,000 pounds) of marijuana. See U.S.S.G. §§ 1B1.3(a)(1)(B) and 2D1.1(c)(1). Then, after applying several adjustments not at issue on appeal, the district court announced that Rodriguez-Lopez's total offense level was 41 and that his criminal history category was II. Concluding that Rodriguez-Lopez's Guidelines range was 324 months to 405 months in prison, the district court sentenced Rodriguez-Lopez at the low end, to 324 months in prison.
The district court later sentenced Barron. At the sentencing hearing, the district court concluded that Barron's base offense level was 32, finding that Barron was responsible for more than 1,000 kilograms but less than 3,000 kilograms (i.e., approximately between 2,000 and 7,000 pounds) of marijuana. See §§ 1B1.3(a)(1)(B) and 2D1.1(c)(4). The district court relied on the jury's answer to the special interrogatory for that finding. Relevant here, the district court also applied a three-level increase for Barron's managerial or supervisory role in the drug conspiracy. See U.S.S.G. § 3B1.1(b). Barron objected to both the base offense level and the enhancement. The district court overruled Barron's objections and arrived at a total offense level of 37 and a criminal history category of I. Observing that Barron's Guidelines range on Count One was 210 months to 262 months in prison, the district court sentenced Barron at the low end, to 216 months in prison.
The defendants raise a number of issues on appeal, some of which overlap and some of which are entirely separate. We will address each defendant's case in turn, beginning with Rodriguez-Lopez.
Rodriguez-Lopez argues that venue was improper in the Eastern District of Texas. The United States Constitution enshrines a defendant's right to be tried in the district "wherein the crime shall have been committed." U.S. Const. amend. VI; see also U.S. Const. art. III, § 2, cl. 3; Fed.R.Crim.P. 18. Venue is proper in conspiracy cases in any district where the agreement was formed or an
Here, in his motion for acquittal, Rodriguez-Lopez argued that the United States had not put on evidence to prove his guilt beyond a reasonable doubt; he did not mention venue. This motion was therefore too vague to put the district court and the United States on notice of a venue challenge. See Carbajal, 290 F.3d at 288-89 n. 19 (holding that merely arguing that the United States did not sufficiently prove the defendant's guilt was inadequate to put the district court or the United States on notice that the defendant was challenging venue). We consider the challenge waived.
Even assuming arguendo that Rodriguez-Lopez did not waive his challenge, we conclude that venue was proper in the Eastern District of Texas. The United States must prove venue by a preponderance of the evidence. United States v. Thomas, 690 F.3d 358, 368 (5th Cir.2012). Rodriguez-Lopez appears to be under the mistaken assumption that, because his actions took place in Dallas (in the Northern District of Texas), the Northern District of Texas is the only place in which venue would be proper. On the contrary, "[v]enue is proper in conspiracy offenses in any district where the agreement was formed or an overt act occurred." Winship, 724 F.2d at 1125. Venue may be proper in districts in which conspirators "have never set foot." Id. (citing Hyde v. United States, 225 U.S. 347, 32 S.Ct. 793, 56 L.Ed. 1114 (1912), and United States v. DeLeon, 641 F.2d 330, 336 (5th Cir.1981)). A conspirator is liable for "all acts committed by [co-conspirators] in furtherance of the conspiracy, including those acts committed without his knowledge before he joined the conspiracy." United States v. Marionneaux, 514 F.2d 1244, 1250 (5th Cir.1975), abrogated on other grounds by United States v. Lane, 474 U.S. 438, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986). The United States' evidence reflected that co-conspirator Garcia hauled drugs through Beaumont and Texarkana and that federal agents seized one of the Cavazos organization's cargo trucks in Tyler. All three cities are in the Eastern District of Texas. See United States v. Garcia Mendoza, 587 F.3d 682, 687 (5th Cir.2009) ("[O]ne co-conspirator's travel through a judicial district in furtherance of the crime alleged establishes venue as to all co-conspirators."). Therefore, a rational jury could conclude by a preponderance of the evidence that venue was proper in the Eastern District of Texas.
Turning to the sufficiency of the evidence, we review the district court's denial of Rodriguez-Lopez's motion for acquittal de novo. United States v. Cervantes, 706 F.3d 603, 617 (5th Cir.2013). We must affirm a conviction if, after viewing the evidence and all reasonable inferences in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the
To establish Rodriguez-Lopez's guilt, the United States was required to prove that: (1) two or more persons agreed to distribute marijuana; (2) Rodriguez-Lopez knew of the existence of the agreement; and (3) Rodriguez-Lopez voluntarily participated in the conspiracy. See Cervantes, 706 F.3d at 617. Because the United States sought an enhanced penalty based on the amount of drugs (i.e., under § 841(b)(1)(A)(vii), which requires that the conspiracy involve at least 1,000 kilograms of marijuana), the United States was required to prove beyond a reasonable doubt the amount of marijuana alleged to be involved in the conspiracy. See Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
It is true, as Rodriguez-Lopez points out, that the United States "may not prove up a conspiracy merely by presenting evidence placing the defendant in a climate of activity that reeks of something foul." United States v. Mendoza, 226 F.3d 340, 343 (5th Cir.2000) (internal quotation marks omitted). But the evidence at trial reflected that Rodriguez-Lopez was involved actively in the "something foul" here; he was not an innocent bystander. To begin with, Rodriguez-Lopez lived in one of the primary stash houses. A rational jury could have believed Jesus Marquez and Cesar Morales and concluded that Rodriguez-Lopez lived in the house rent-free not out of the kindness of the Marquez brothers' hearts but because he played a valuable role in the drug conspiracy. This role was memorialized in the drug ledgers, which reflected that Rodriguez-Lopez, or "Puma," was personally responsible for moving at least 7,000 pounds of marijuana. Indeed, according to Jesus Marquez, Rodriguez-Lopez, as Roberto Marquez's "right hand" man, had his choice of marijuana to sell.
Rodriguez-Lopez also challenges his sentence on the ground that the district court's finding that he was responsible for more than 30,000 kilograms of marijuana — more than the jury found in answering the special interrogatory — violated United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We review for plain error because Rodriguez-Lopez did not object on this ground. United States v. Arnold, 416 F.3d 349, 362 (5th Cir.2005).
No error, plain or otherwise, under Booker and its progeny occurred here. The district court's finding that Rodriguez-Lopez was responsible for more than
We now turn to Barron's sufficiency challenge, which we review de novo, under Jackson, 443 U.S. 307, 99 S.Ct. 2781. The United States argued at trial that Barron aided and abetted the Cavazos organization conspiracy, and the jury was instructed on that theory. To prove that Barron aided and abetted the conspiracy, the United States was required to prove that: (1) the offense of conspiracy occurred and (2) Barron associated himself with the venture, participated in it as something he wished to bring about, and sought by his action to make it succeed. United States v. McDowell, 498 F.3d 308, 313 (5th Cir. 2007); see also United States v. Segura, 122 Fed.Appx. 768, 777 (5th Cir.2005) (upholding conviction for aiding and abetting a drug conspiracy).
Barron's guilt, as demonstrated at trial, was of a different sort than Rodriguez-Lopez's. The United States does not contend that Barron was moving, packaging, or selling marijuana for the Cavazos organization, and Barron frankly concedes that the United States "unquestionably proved the existence of a conspiracy to distribute marijuana." Barron argues instead that the evidence of his knowledge of and participation in the conspiracy was insufficient. Barron relies heavily on the fact that the surveillance recordings (obtained via Flores) were devoid of any explicit mention of the Brookstown, Jamestown, or Charlestown houses or the Cavazos organization. Barron also observes that, according to Gomez's testimony, Gomez never told Barron that he was purchasing the firearms on behalf of the Cavazos organization.
We begin with Barron's knowledge of the conspiracy.
Barron's association with and participation in the conspiracy is exemplified by the firearms transactions themselves.
The illegal nature of the firearms trafficking in which Barron was engaged also supports the jury's conclusion. Barron was not an unknowing seller who made a one-off sale. As we explained in United States v. Michelena-Orovio, a defendant who has supplied "`innocent'" goods to people who intend to use those goods unlawfully — without more — has not committed a crime. 719 F.2d 738, 748-49 (5th Cir. 1983) (quoting United States v. Falcone, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128 (1940) (evidence insufficient to support convictions of aiding and abetting a conspiracy to distill spirits where defendants knowingly supplied a large volume of sugar and yeast to illegal distillers)). But the unlawfulness of the goods themselves is "important in terms of both the seller's knowledge of the buyer's intended use, and the seller's intent to promote and cooperate in the illegal action." Michelena-Orovio, 719 F.2d at 749. In light of the foregoing, and with more than sufficient evidence to establish that the overall scope of the conspiracy involved more than 1,000 kilograms of marijuana, we will not second guess the jury's determination that Barron was guilty of conspiring to distribute marijuana, including the finding on the special interrogatory.
Barron argues that his conviction should be vacated because his right to a fair trial was compromised by the prosecutor's improper remarks during closing arguments. We review the district court's denial of Barron's motion for a new trial for abuse of discretion. United States v. Wyly, 193 F.3d 289, 298 (5th Cir.1999). We apply a two-step analysis to claims of prosecutorial misconduct: First, we assess whether the prosecutor made an improper remark. If so, we determine whether the defendant was prejudiced — a "high bar." United States v. Davis, 609 F.3d 663, 677 (5th Cir.2010) (internal quotation marks omitted). The prejudice prong turns on whether the prosecutor's remarks "cast serious doubt on the correctness of the jury's verdict." Id. (internal quotation marks omitted). We look to three factors in deciding whether the improper remarks "cast serious doubt": "(1) the magnitude of the prejudicial effect of the prosecutor's remarks, (2) the efficacy of any cautionary instruction by the judge, and (3) the strength of the evidence supporting the conviction." Id. (internal quotation marks omitted).
We agree with Barron that the prosecutor's comments were improper. We have repeatedly chastised federal prosecutors for making improper remarks in closing arguments — for example, for "bolstering" federal agents' credibility in closing arguments, see United States v. Aguilar, 645 F.3d 319, 324 (5th Cir.2011) ("The prosecutor in this case, in a rapid series of comments, referred to the agents' positions as government agents, then said it would be alarming if they were lying, they were just doing their jobs, and they strive to be ethical."); for attacking the character
Having concluded that the remarks were improper, we must determine whether Barron was prejudiced by them. Mindful that a prosecutor's improper remark "carries with it the imprimatur of the Government and may induce the jury to trust the Government's judgment rather than its own view of the evidence," United States v. Young, 470 U.S. 1, 18-19, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), we nevertheless conclude that vacating Barron's conviction is not warranted. We emphasize that here the district court was quick to admonish the misconduct, not only immediately sustaining defense counsel's objection but also verbally instructing the jury as to why the remarks were improper.
Barron argues that the district court erred in setting his base offense level at 32 and in applying a three-level enhancement for his managerial or supervisory role in the drug conspiracy. We review the district court's interpretation and application of the Sentencing Guidelines de novo and its factual findings for clear error. United States v. Miller, 607 F.3d 144, 147 (5th Cir.2010). Both the determination
Under § 1B1.3(a)(1)(A), a district court must determine the base offense level for a conspiracy by reference to "all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity[] that occurred during the commission of the offense." Here, following a lengthy dialogue with defense counsel, the district court reasoned that Barron's involvement in the conspiracy rendered it "reasonably foreseeable" to Barron that the Cavazos organization was moving more than 1,000 kilograms of marijuana. Especially in light of the jury's answer to the special interrogatory, which was in essence a finding of "reasonable foreseeability" beyond a reasonable doubt, we conclude that the district court did not clearly err.
The three-level enhancement at issue here applies "[i]f the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive." § 3B1.1(b).
The district court provided the following reasoning in support of its decision to apply the enhancement:
Along similar lines, the United States argues on appeal that Barron's role in the Cavazos organization was significant because he "recruited Flores and others to get firearms and directed their activity." As defense counsel pointed out at the sentencing hearing, however, there was no evidence that Barron was using Flores or
We therefore AFFIRM Rodriguez-Lopez's conviction and sentence on Count One. We also AFFIRM Barron's conviction on Count One. We VACATE Barron's sentence on Count One and REMAND for resentencing.