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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 91-8370
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROLANDO MONTES,
Defendant-Appellant.
______________________________________________
Appeal from the United States District Court for the
Western District of Texas
______________________________________________
(October 14, 1992)
Before BROWN, GARWOOD, and DEMOSS, Circuit Judges.
GARWOOD, Circuit Judge:
Defendant-appellant Rolando Montes (Montes) appeals his
conviction and sentence of conspiracy to possess marihuana with
intent to distribute it and of attempt to possess marihuana with
intent to distribute it. His primary challenges on appeal are to
the district court's findings concerning the relevant conduct for
sentencing purposes on grounds of collateral estoppel and
sufficiency of the evidence. We affirm.

Factual Background
On October 5, 1990, a confidential informant in Harlingen
introduced Officer Morales (Morales), an undercover narcotics
officer with the Cameron County Drug Task Force, to Ed Potts
(Potts), charged as a co-defendant below. Morales posed as a
supplier of marihuana, because Potts had made it known that he and
a "partner" were interested in purchasing two hundred pounds of
marihuana. Morales gave him a small amount (less than a handful)
of the marihuana to take back to Austin as a sample.
Other law enforcement agencies became involved in the
undercover operation, including the Drug Enforcement Administration
(DEA), the Bureau of Alcohol, Tobacco, and Firearms (ATF), and the
Cameron County District Attorney's Office. Austin DEA Special
Agent Delfino Sanchez (Sanchez) helped with the initial gathering
of information about Potts and his contacts in Austin.
Morales talked with Potts a few days later over the telephone
to arrange the two hundred pound deal.1 They agreed that Morales
would transport the marihuana to Austin, where the sale would occur
at Potts's house. During this conversation, Potts told Morales
that Montes would be present at the sale because Montes had the
connections with the intended ultimate purchasers of the marihuana.
On October 9, Morales went to Austin and met with Sanchez and
other agents to devise a plan for the transaction. Manny Duarte
(Duarte), an undercover agent with the organized crime unit task
1
There was some evidence at trial that this deal involved two
hundred fifty pounds. The district court used the two hundred
pound amount in sentencing Montes.
2

force, served as a driver for Morales and the confidential
informant. Sanchez and other agents provided surveillance in the
neighborhood surrounding Potts's house.
Morales then met Potts and Montes at Potts's house. There
was some confusion about the structure of the transaction, and it
failed to go through. Montes had only $5,000 with him, which he
offered to Morales for a one pound sample of the marihuana because
his purchasers were unwilling to deliver their money without a
sample. Morales was unable to release any of the marihuana.
Montes called several of the buyers but was unable to get any more
money. Morales left, after Montes and Potts indicated that they
wanted to do more deals in the future. Morales called Montes an
hour later because Montes had requested more time to contact other
potential buyers. After determining that no more money was
available, Morales returned to the Valley.
A recording of the October 9 meeting reveals that Montes was
claiming that he could sell fifty or one hundred pounds but not two
hundred, and that he was not capable of handling a two hundred
pound deal on that date.
On October 15, Potts returned to Harlingen, and Morales met
him in his motel room. Potts expressed regrets about the failed
deal and mentioned that Montes's contacts still had the money and
were still interested in the two hundred pound deal. Potts called
Montes from the hotel room, and Morales talked with him briefly.
Morales testified that he and Montes talked about the two hundred
pound deal and that Montes had reassured him that the incident on
3

the October 9 had been the result of a misunderstanding and that
his people still wanted the marihuana.2
On October 18, Potts called Morales's pager. When Morales
returned the call later that morning, Potts told him that he and
Montes wanted to buy one hundred twenty pounds of marihuana, one
hundred pounds for their buyers and twenty pounds for Potts and
Montes.3 Morales recorded this conversation, as well as one
occurring later that afternoon. During the later conversation,
Potts stated that Montes was then "sitting here with me" and that
they had just been discussing the deals; Potts said to Morales that
they would do the one hundred twenty pound deal on October 19 and
the "two deal"4 with different buyers the next time. Potts also
expressed a desire to set up transactions with Morales on a regular
basis. Morales then spoke with Montes during this same telephone
call; their conversation was in Spanish and concerned what had gone
wrong before and the plans for the next day's deal.
Morales called Potts from the Valley on the morning of October
19 to finalize the deal for that day. Morales did not go to Austin
for the transaction; instead, Sanchez, Duarte, and an ATF agent
2
The contents of this conversation are disputed. Morales was
unable to record the conversation because he was in the room with
Potts. In addition, he did not mention it in his offense report.
Montes claims that other items in the offense report contradict
Morales's version of the conversation.
3
Potts claimed that he was trying to recover ten pounds of
marihuana which he had paid for but not received in a transaction
with the confidential informant in Harlingen. The confidential
informant turned out to be one of Montes's cousins.
4
The "two deal" can be understood as a reference to the
original two hundred pound deal.
4

named Jose Viegra were the undercover agents participating in the
transaction; other agents provided surveillance. When they arrived
at Potts's house, Agent Viegra remained in the vehicle, and Sanchez
and Duarte went into the house. Potts, Montes, and co-defendant
Thomas Sanders (Sanders) were present. When Sanchez asked to see
the money, Sanders put a clear plastic bag on a table; Montes then
handed it to Sanchez. Sanchez picked up a second bag that Sanders
had placed on the table. Montes told him that the bags contained
$100,000 as payment for the 120 pounds. Sanchez, who was wearing
a transmitter, then gave a signal to the agents outside. The
agents arrested Montes, Potts, and Sanders and confiscated the
money and a van belonging to Sanders.
Proceedings Below
In November 1990 Montes and co-defendants Potts and Sanders
were indicted by a grand jury on charges of conspiring from on or
before October 9, 1990, to October 19, 1990, to possess with intent
to distribute over one hundred kilograms of marihuana contrary to
21 U.S.C. � 841(a)(1) and of attempting, on or about October 19,
1990, to possess with intent to distribute over fifty kilograms of
marihuana contrary to 21 U.S.C. � 841(a)(1), both in violation of
21 U.S.C. section 846.5
In February 1991, Montes and his co-defendants pleaded guilty
to a superseding information, which charged them with one count of
conspiracy to possess with intent to distribute marihuana.
5
One hundred kilograms is approximately equivalent to two
hundred twenty pounds; fifty kilograms is approximately
equivalent to one hundred ten pounds.
5

Although the information did not specify any amount of marihuana,
Montes claims that he understood that the one hundred twenty pounds
of marihuana from the October 19 transaction, described in the
factual basis for the plea agreement, would constitute the relevant
conduct for sentencing purposes. The factual basis contained no
reference to the earlier negotiations for the two hundred pound
deal except to note that, other than the October 19 deal, no
definite agreement had been reached between defendants and law
enforcement agents. In April, Montes moved to withdraw his plea
after the presentence report was filed that discussed three hundred
pounds of marihuana, instead of the expected one hundred twenty
pounds. At a May 20, 1991 hearing set on Montes's motion and on
his and Potts's sentencing, the district court permitted Montes to
withdraw his guilty plea.6 Following Montes's withdrawal, the
court then sentenced Potts on the basis of two hundred pounds and
Sanders on the basis of one hundred twenty pounds.7
Montes subsequently proceeded to trial under the original
indictment. A jury found him guilty on both counts, and the
district court found that the relevant conduct encompassed three
hundred twenty pounds, on the basis of both the attempted October
9 transaction and the completed October 19 transaction. The court
6
The district court permitted the withdrawal of the guilty
plea because a letter from the United States Attorney's office
was not received by Montes until after he entered his plea. The
letter warned Montes that the probation office would determine
the relevant conduct for sentencing purposes and that nothing in
the plea agreement should be construed as a representation of the
United States Attorney's position on that issue.
7
Apparently, there was insufficient evidence to link Sanders
with anything other than the October 19 transaction.
6

sentenced Montes to seventy months' imprisonment, followed by five
years of supervised release; a special assessment of one hundred
dollars was also ordered. Montes brings this appeal.
Discussion
I.
Collateral Estoppel
Montes contends that the issue of the relevant amount of
marihuana was determined in a prior judicial proceeding, namely the
sentencing of co-defendant Potts. He claims that he is in privity
with Potts, and that therefore the doctrine of collateral estoppel
prevented the government from relitigating, and the district court
from redetermining, the same fact issue at his own sentencing.8
The doctrine of collateral estoppel provides that "when an
issue of ultimate fact has once been determined by a valid and
final judgment, that issue cannot again be litigated between the
same parties in any future lawsuit." Ashe v. Swenson, 90 S.Ct.
1189, 1194 (1970). Thus, collateral estoppel "bars only the
reintroduction or relitigation of facts already established against
the government." United States v. Mock, 604 F.2d 341, 343 (5th
Cir. 1979) (original emphasis omitted).
Collateral estoppel does not apply to bar the relitigation of
the relevant amount of marihuana in Montes's case.
8
Montes raised this issue below in a motion to dismiss count
one of the indictment, contending that the count charged a
conspiracy involving over one hundred kilograms, or two hundred
twenty pounds, of marihuana when the court had already determined
at Potts's sentencing that the conspiracy involved two hundred
pounds, or less than the amount alleged in the indictment. He
also moved for a directed verdict on this issue at the close of
the government's case-in-chief. The district court denied both
motions.
7

The district court had not previously determined the amount
issue in a proceeding between Montes and the government. At the
sentencing hearing following the entry of his guilty plea, the
court allowed Montes to withdraw his plea before it proceeded to
sentence his co-defendants. Montes's proceedings were thus severed
from those of Potts and Sanders at the moment his plea was
withdrawn. The district court therefore never determined the
amount issue as between Montes and the government at the May 20,
1991 hearing. Further, collateral estoppel is inapplicable here
because the bar cannot arise from a non-final judgment. The
doctrine applies in situations where one final finding precludes a
subsequent inconsistent finding. United States v. Fesler, 781 F.2d
384, 390 (5th Cir. 1986). There was only one finding as to Montes.
Factual findings by the district court as to the relevant conduct
for sentencing purposes must be incorporated into a final judgment
in order to have preclusive effect.
Montes may not rely on the factual findings for Potts's final
judgment because Montes was not a party to that judgment. We
recognize that collateral estoppel need not always require identity
of parties at both trials. The civil doctrine of non-mutual
collateral estoppel provides, in essence, that "if a litigant has
fully and fairly litigated an issue and lost, then third parties
unrelated to the original action can [in certain circumstances] bar
the litigant from re-litigating that same issue in a subsequent
suit." United States v. Mollier, 853 F.2d 1169, 1175 n.7 (5th Cir.
1988). We have held, however, that the doctrine of non-mutual
collateral estoppel has no application in criminal cases. Id. at
8

1176. See Standefer v. United States, 100 S.Ct. 1999 (1980)
(holding that the civil rule of non-mutual collateral estoppel
could not be asserted against the government by a defendant accused
of aiding and abetting a person who had been acquitted earlier in
a jury trial); see also United States v. Mendoza, 104 S.Ct. 568
(1984) (holding in the immigration context that the government
could not be collaterally estopped from litigating a constitutional
issue concerning its administration of the Nationality Act,
adjudicated against it in an earlier action brought by a different
party).
Finally, we note that the district court's findings on the
amount issue are not inconsistent because of the differences in
evidence available at the two sentencings. The district court was
required by statute to look at the evidence before it at the time
of sentencing to determine the applicable sentencing guidelines
range. See 18 U.S.C. � 3553(a). When the district court sentenced
Potts, it had before it only the factual basis, the plea agreement,
the presentence report, and the evidence at the May 20, 1991
sentencing hearing. The court sentenced Montes, however, after a
subsequent two-day jury trial, at which the court had an
opportunity to hear more evidence on the amount issue.9
9
At Montes's sentencing, the district court stated:
"During the trial I paid particular attention to
evidence concerning the relevant amount of marijuana
since that had been the foremost issue subsequent to
the guilty plea being entered. It was my determination
from havingSQand based strictly on the evidence I heard
at trial that the relevant conduct in this case would
be at least 320 pounds of marijuana."
9

We hold that collateral estoppel did not bar the reevaluation
of the issue of the amount of marihuana involved in the conspiracy.
The district court was free to consider the evidence presented at
the trial in determining Montes's conduct for sentencing purposes.
II.
Findings Concerning Relevant Conduct
Montes contends that the district court erred in finding that
his relevant conduct for sentencing purposes constituted three
hundred twenty pounds of marihuana.10 A district court's factual
findings on the relevant quantity of drugs are protected by the
clearly erroneous rule. United States v. Rivera, 898 F.2d 442, 445
(5th Cir. 1990). In making sentencing determinations, a court may
consider, for sentencing purposes, facts not specifically alleged
in the indictment. United States v. Puma, 937 F.2d 151, 156 (5th
Cir. 1991). Quantities of drugs, not specified in the indictment,
if part of the same scheme, course of conduct, or plan, may be used
to determine the base offense level. U.S.S.G. � 1B1.3; United
States v. Moore, 927 F.2d 825, 827 (5th Cir.), cert. denied, 112
S.Ct. 205 (1991).
The district court found that the original two hundred pound
deal was separate from the completed one hundred twenty pound deal
and that Montes knew about and participated in both deals. It
concluded that Montes's relevant conduct for sentencing was three
hundred twenty pounds. Montes argues that he did not participate
in the two hundred pound deal, that he did not have the ability to
10
We note that Montes's sentence was well below the statutory
maximum even if, as he contends, only one hundred twenty pounds
was involved. 21 U.S.C. � 841(b)(1)(C).
10

purchase two hundred pounds of marihuana on October 9, and that
there was only one deal,which was reduced from two hundred pounds
to one hundred twenty pounds.
Officer Morales testified that Montes was present at Potts's
house on October 9th. Although a recording of that meeting could
support Montes's claim that he was not capable of purchasing the
full two hundred pounds, Morales's testimony showed that the deal
did not go through only because the buyers would not release their
money until they were given a sample of the marihuana. It is not
the role of this Court to choose which witnesses to believe.
United States v. Jones, 839 F.2d 1041, 1047 (5th Cir.), cert.
denied, 486 U.S. 1024, 108 S. Ct. 1999 (1988). Because there was
credible evidence supporting the district court's finding that
Montes participated in both deals, we will not disturb that finding
on appeal.
In addition, Montes disputes the contents of the telephone
conversation with Morales on October 18. Their conversation was in
Spanish, and although the defense produced its translator as a
witness at trial, it did not attempt to introduce its translated
transcript into evidence. Montes has moved on appeal to supplement
the record with the translation of the conversation. The
government opposes this motion, claiming that the transcript could
have been introduced at trial.
There is some contradiction in the testimony regarding the
contents of the conversation. Morales testified that Montes told
him that he was still interested in doing the two hundred pound
deal. The translator testified that the tape of the conversation
11

contained no such statement. Although we deny the motion to
include the translation in the record, we accept Montes's argument
that there is no direct reference to continuing the two hundred
pound deal in the portion of the conversation in which Morales and
Montes directly talked to each other. We conclude, however, that
in the earlier part of the conversation between Morales and Potts,
there is sufficient evidence to sustain the district court's
findings.
Montes and Potts were co-conspirators. When Morales called
Potts at Potts's house, Montes was presentSQ"sitting here with me
[Potts]"SQduring their conversation. Morales talked with Potts
about doing both deals, and Potts stated that "we [Potts and
Montes] were just talking about this." We find this evidence
sufficient to charge Montes with the knowledge of Potts's
conversation with Morales and participation with Potts. The
district court did not err in sentencing Montes on the basis of
both the one hundred twenty and two hundred pound deals.
III. Acceptance of Responsibility
Montes concedes in his reply brief that he is not entitled to
relief for acceptance of responsibility unless we also find for him
on the previous issue concerning the propriety of the district
court's findings on his relevant conduct. This we have not done.
But even if we had, we would not hold that the district court was
obliged to find that Montes had accepted responsibility.
In the plea agreement, the government agreed to recommend a
reduction in the base offense level for acceptance of
responsibility. The district court refused to grant the reduction
12

because Montes withdrew his plea and proceeded to trial. Montes
argues that his actions did not preclude the reduction.11 He
contends he did not contest his guilt but merely the amount of
marihuana at issue. The district court disagreed, taking the view
that Montes had not adequately accepted responsibility for the
magnitude of his actions.12
Montes's plea of not guilty put the government to its burden
of proof on the factual issues related to his guilt of the offenses
charged. The plea agreement did not force Montes to go to trial in
order to contest the amount of marihuana. The superseding
information to which he pleaded did not allege an amount of
marihuana, and the district court did not have to accept the amount
contained in the presentence report. Montes was thus not bound to
an amount of marihuana at the first sentencing hearing and could
11
Montes bases his claim to the adjustment on U.S.S.G. Section
3E1.1, Application Note 2, which provides in part that
"[i]n rare situations a defendant may clearly
demonstrate an acceptance of responsibility for his
criminal conduct even though he exercises his
constitutional right to a trial. This may occur, for
example, where a defendant goes to trial to assert and
preserve issues that do not relate to factual guilt
(e.g., to make a constitutional challenge to a statute
or a challenge to the applicability of a statute to his
conduct)."
12
The district court stated at sentencing:
"But I think the problem in this case is that Mr.
Montes has not been willing to agree with a degree of
culpability of the amount of marijuana involved,
understandably because that has such a direct bearing
on punishment. But I would think that acceptance of
responsibility should include some level of acceptance
of the magnitude of the offense committed and
acceptance of the appropriate punishment for that act."
13

have argued the issue there without withdrawing his plea. In
addition, Montes could have appealed this issue after sentencing on
his guilty plea.
We also observe that Montes's probation officer testified at
his second sentencing hearing that it was apparent from the trial
testimony that Montes had not been forthright with him during the
initial interview concerning Montes's role in the conspiracy.
Montes refused to talk to the probation officer about the events of
October 9, which were of great relevance in the determination of
the amount of marihuana involved. We have found similar conduct a
sufficient basis on which to deny an adjustment for acceptance of
responsibility. United States v. Nevarez-Arreola, 885 F.2d 243,
246 (5th Cir. 1989).
We affirm the district court's ruling on Montes's acceptance
of responsibility.
IV.
Jury Charge
Montes contends that the district court erred in overruling
his objections to the jury charge based on its failure to include
any reference to any particular quantity of marihuana. However,
this was not required. Proof of the quantity of controlled
substances at issue is not an element of an offense under 21 U.S.C.
sections 841(a) and 846. United States v. Brown, 887 F.2d 537, 541
(5th Cir. 1989); United States v. Morgan, 835 F.2d 79, 81 (5th Cir.
1987). Because the amount of controlled substance is relevant to
sentencing only, it need not be submitted to the jury.
14

Conclusion
For the reasons stated above, we conclude that the district
court did not err in sentencing Montes on the basis of three
hundred twenty pounds of marihuana, and that no reversible error
has been demonstrated in his conviction or sentence. Montes's
motion to supplement the record is DENIED. The judgment of the
district court is
AFFIRMED.
15