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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 92-2370
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
Cross-Appellant,
versus
WISTING R. FIERRO,
OLGA L. MARTINEZ,
JAIME IBANEZ a/k/a IBANIA,
JESUS A. SERNA,

Defendants-Appellants,
JOSE J. GRAJALES,
Defendant-Appellant,
Cross-Appellee.
Appeals from the United States District Court
for the Southern District of Texas
(November 11, 1994)
Before REAVLEY, DeMOSS, and STEWART, Circuit Judges.
DeMOSS, Circuit Judge:
This case began in November 1991 with an investigation by
Houston police and IRS agents into a narcotics conspiracy involving
approximately 178 kilograms of cocaine. The five defendant-

appellants, Wisting Fierro, Olga Martinez, Jesus Serna, Jaime
Ibanez and Jose Grajales, were charged in a January 8, 1992
superseding indictment with:
Count 1: conspiracy to possess cocaine with the intent to
distribute, 21 U.S.C. 壯 841(a)(1), 841(b)(1)(A), 846;
Count 2: aiding/abetting possession of cocaine, 18 U.S.C. 2; and

Count 3: conspiracy to commit money laundering, 18 U.S.C. 壯 371,
1956(a)(1)(A)(i).
In addition, Grajales and Serna were each indicted on a substantive
count of cocaine possession with the intent to distribute. On April
24, 1992, after a 11-day trial, the jury convicted all five
defendants on all counts. The district court sentenced the
defendants as follows: Grajales received 240 months each on Counts
1 and 2, and 60 months on Count 3. Serna received 188 months each
on Counts 1 and 2, and 60 months on Count 3. Fierro received 293
months each on Counts 1 and 2, and 60 months on Count 3. Ibanez
received 151 months each on Counts 1 and 2, and 120 months on Count
3. Martinez received 121 months each on Counts 1 and 2, and 60
months on Count 3. The judge ordered all terms of imprisonment to
be served concurrently. Each defendant also received: (1) a $150
assessment of mandatory costs, and (2) two five-year terms of
supervised release on Counts 1 and 2, and three years of supervised
release on Count 3 (also to be served concurrently).
All five defendants have appealed their convictions and
sentences, raising various grounds for reversal. The government has
brought a cross-appeal to challenge Grajales' sentence.
We affirm the convictions of all defendants on all counts, and
2

we affirm the sentences imposed on defendants Fierro, Martinez,
Serna and Ibanez. We hold that the government's cross-appeal has
merit, and we therefore vacate Grajales' sentence and remand his
case for re-sentencing.
FACTUAL BACKGROUND
The facts and evidence relating particularly to each defendant
are discussed at length later in this opinion, so our initial
factual summary will be brief. On November 12, 1991, Houston police
and IRS officers began surveillance of a house at 17026 French Road
("the French Road house") after they received information from a
confidential informant. During a four-day period of surveillance
ending November 16, 1991, Fierro, Martinez, Serna and Ibanez were
observed (1) coming and going, sometimes carrying packages, bundles
or bags, to and from the French Road house and an apartment at 8791
Hammerly ("the Hammerly apartment"); (2) driving to other locations
in their vehicles; (3) making numerous phone calls on pay phones
and mobile phones as well as answering pager calls; (4) meeting
briefly with other unknown people in parking lots or at business
establishments; and (5) engaging in "counter-surveillance"-type
conduct that showed their suspicion that they were being watched.
In addition, before and after meetings with the other defendants,
Serna was seen going in and out of a third residence at 7831
Prestwood ("the Prestwood house" or "the stash house"). At about 3
p.m. on November 16, 1991, Serna arrived at the Prestwood house,
stayed about 20 minutes and emerged with a weighted blue denim bag,
which had been seen previously in Martinez' possession. After
3

driving to a gas station to make a phone call, Serna drove to the
rear of a warehouse on Harwin Street, took the blue denim bag into
the brush and returned to his car without the bag. Officers
immediately recovered the bag, which contained four kilograms of
cocaine wrapped with tape and Spanish-language newspaper. After
leaving the warehouse area, Serna made and received a telephone
call from a pay phone and then was apprehended. Fearing that Serna
had alerted the others, officers began procedures to secure search
warrants for the three residences. Just minutes after Serna had
made his last phone call and was arrested, Grajales was seen
arriving at the Prestwood house and attempting to leave three
minutes later. Grajales was carrying a key to the Prestwood house,
and Grajales' personal documents and photographs were found inside
the house. A neighbor testified that Grajales had lived in the
Prestwood house for nine months to a year. A subsequent search
pursuant to warrant at the Prestwood house uncovered, among other
items, 84 kilograms of cocaine (of similar purity to the 4
kilograms in the denim bag) found in the kitchen cabinets and
garage; a 9mm semi-automatic pistol and two boxes of ammunition; a
suitcase, bag and box stuffed with cash totaling $1,132,146; a
digital scale; a pager; rolls of duct tape; a police radio scanner
and an adding machine. Also found were several tally documents and
adding machine tapes, indicating that the money had been counted
and bundled by denomination with rubber bands.
Later in the evening of November 16, 1991, the French Road
house was also searched pursuant to warrant. No drugs or large
4

amounts of money were found there, but several "kilogram wrappings"
made of tape and Spanish-language newspapers were found in the
kitchen. The wrappings were similar to those around the kilograms
found at the Prestwood house and in the bag abandoned by Serna. The
search of the French Road house also uncovered several notebooks
and documents identified as drug ledgers. The Hammerly apartment
and Ibanez' car were searched after Ibanez signed a consent form.
A wallet and a small address book containing drug ledger
information were seized from Ibanez's car. Fierro, Martinez and
Ibanez were arrested at the apartment. Various items of evidence
found at the three residences connected the defendants with each
other and with the drug operation. Documents found in the French
Road house revealed that thousands of dollars had been sent by wire
transfer to Colombia, by or on behalf of the defendants. The money
was sent in amounts of less than $10,000 at a time to avoid
triggering a currency report to the Internal Revenue Service.
ISSUES
The five defendants raise various issues to challenge their
convictions and sentences:
(1) Was the evidence sufficient to convict each defendant for (a)
conspiracy to possess cocaine, (b) aiding and abetting cocaine
possession, and (c) conspiracy to commit money laundering?

(2) Did Ibanez voluntarily consent to a search of his apartment and
vehicle?

(3) Was the prosecutor's closing argument so improper that it
raised doubt as to the correctness of the jury's verdict?

(4) Did the trial court err in instructing the jury on "deliberate
ignorance?"
(5) Did the district court abuse its discretion in admitting
5

certain "drug ledger" documents into evidence?
(6) Did the trial court clearly err in sentencing?
DISCUSSION
Sufficiency of the Evidence to Support Convictions
The elements of a drug conspiracy are: (1) the existence of an
agreement to possess narcotics with the intent to distribute, (2)
knowledge of the agreement, and (3) voluntary participation in the
agreement. United States v. Mergerson, 4 F.3d 337, 341 (5th Cir.
1993), cert. denied, 114 S. Ct. 1310 (1994). The jury may infer a
conspiracy from circumstantial evidence and may rely upon presence
and association, along with other evidence. Proof of an overt act
in furtherance of the conspiracy is not required; a common purpose
and plan may be inferred from a development and collection of
circumstances. United States v. Robles-Pantoja, 887 F.2d 1250, 1254
(5th Cir. 1989). Aiding and abetting has three elements: The
defendant must have (1) associated with a criminal venture, (2)
participated in the venture, and (3) sought by action to make the
venture successful. Mergerson, 4 F.3d at 342. Five elements must be
proven for a conviction for conspiracy to launder money: (1) there
is a conspiratorial agreement, (2) one conspirator knowingly
commits an overt act by participating in a financial transaction,
(3) the financial transaction involves the proceeds of an unlawful
activity, (4) the conspirator participating in the transaction had
the intent to promote or further that unlawful activity, and (5)
the transaction affected interstate or foreign commerce. United
6

States v. Thomas, 12 F.3d 1350, 1360 (5th Cir.), cert. denied sub.
nom. Sanchez v. United States, 114 S. Ct. 1861 (1994); see also 18
U.S.C. � 1956(c).
When reviewing a challenge to the sufficiency of the evidence
to support a conviction, the appellate court must consider all
evidence in the light most favorable to the guilty verdict and
accept all reasonable inferences tending to support the verdict.
The ultimate inquiry is whether a rational trier of fact could have
found guilt on each count beyond a reasonable doubt. United States
v. Huntress, 956 F.2d 1309, 1318 (5th Cir. 1992), cert. denied, 113
S.Ct. 2330 (1993)(noting that juries "may use their common sense
and evaluate the facts in light of their knowledge of the natural
tendencies and inclinations of human beings.").
The following evidence, summarized here in the light most
favorable to the guilty verdict, supports the convictions of all
defendants on all counts:
Grajales: He possessed a key to the Prestwood stash house and lived
there for at least nine months. He concealed his connection to the
stash house by using a different address on his driver's license
(the same address as Serna's driver's license). He was present at
the stash house during surveillance on the same day the 80-plus
kilograms of cocaine were seized from the stash house. His personal
items were found inside the stash house. Grajales' fingerprints
were on one of the money count documents found inside the stash
house, and the government argued that the scribbled initials on the
money count documents resembled Grajales' driver's license
signature. He hurriedly arrived and departed from the stash house
just minutes after Serna threw away the 4 kilograms and made a
phone call prior to his arrest. The timing of Serna's phone call
and Grajales' arrival at the stash house raises the inference that
when Serna knew he had been caught, he called the "big boss" to
warn him. The government argued that Grajales was the overall
leader of the drug operation, who maintained control over the
cocaine and money by living at the stash house and keeping records
of the operation.
7

Serna: He testified that he met Grajales only once or twice, but
his driver's license bears the same address as Grajales' driver's
license. Surveillance officers testified that Serna entered the
stash house once on Nov. 14, three times on Nov. 15 (when he stayed
inside the house for a whole afternoon) and twice on Nov. 16
(therefore was in the house when the cocaine and money were there
and must have known of the drug operation). He admitted to (and was
observed) carrying packages to and from the Prestwood, Hammerly and
French road residences. He was also seen meeting with people in
business establishments and parking lots before and after trips to
the Prestwood house. He showed guilty knowledge by engaging in
counter-surveillance activity. He was observed carrying a weighted
denim bag out of the stash house and abandoning it behind a
warehouse after he realized that he was being followed. (The bag,
which had been seen previously in Martinez's possession, contained
four kilograms of cocaine that was of similar purity to the cocaine
seized from the stash house). Serna testified that he did not know
Ibanez and met him on the day they both were arrested, but
surveillance officers had observed that Serna knew and used the
security access code to enter the Hammerly apartment where Ibanez
lived. Although Serna claimed that he didn't know Fierro before
mid-November 1991, telephone records showed that Serna was paged 56
times from Fierro's mobile phone during October 1991. An address
book found at the French Road house, where Fierro lived, has
Serna's pager number listed next to the name "Gordo." Serna
admitted that his nickname is Gordo, and the name Gordo appears on
several drug ledger documents found in the French Road house and in
Ibanez's car. The government argued that Serna was the courier who
reported directly to Grajales and had access to the large amounts
of cocaine in the stash house.
Fierro: In the month prior to his arrest, he called Serna's pager
56 times on his mobile phone and made 843 other mobile phone calls
that month. He lived at the French Road house with Martinez and
Ibanez. His fingerprints were found on "kilogram wrappings" made of
newspaper and tape seized from the French Road house. (The
wrappings matched those around the cocaine found in the stash house
and in the bag abandoned by Serna.) The utilities at the French
Road house were in Fierro's name. He knew the access code to the
Hammerly apartment and was seen driving to and from the French Road
house and the apartment with Martinez, making phone calls, and
meeting with other people. His fingerprints were found on documents
identified as drug ledgers that were seized from the French Road
house. He was born in the Colombian city to which wire transfers of
money were made. His fingerprints were found on documents
associated with money laundering transactions and on an address
book/drug ledger found in Ibanez's car. The government argued that
Fierro was the organizer/leader of a cocaine distribution operation
at the French Road house; he purchased cocaine from Grajales
through Serna, and he used Ibanez and Martinez as couriers to
distance himself from the movement of the cocaine.
8

Ibanez: He is Fierro's nephew. He initially participated in leasing
the French Road house, kept personal documents there and was often
there with Fierro and Martinez. He generally lived in the Hammerly
apartment that he had leased along with Fierro, although he used at
least two other addresses to receive bills and mail. The address on
his driver's license was the same as the address on Martinez's
Texas ID card. The leasing documents signed by Ibanez for the
French Road house and Hammerly apartment contained false
information about his work history and the length of time he had
been in the United States. The government alleged that Fierro
wanted the leases in Ibanez's name because Ibanez had a student
visa, was residing lawfully in the United States and had references
that could be verified. An address book/drug ledger apparently
owned by Martinez was found in the glove compartment of Ibanez's
car. Martinez's wallet, containing a receipt for the purchase of a
.38-caliber revolver by Martinez, was also found in his car.
Ibanez's fingerprints were found on a wire transfer document seized
from the French Road house trash. He wire transferred more than
$9,000 to a woman in Columbia who he claimed was his mother. He was
seen carrying an object or objects cradled in a leather jacket into
and out of the French Road house and Hammerly apartment, making
phone calls and meeting briefly with various people in parking lots
and apartments. The government argues that Ibanez was a courier for
his uncle, Fierro, and that he was aware of the full scope of
Fierro's operation.
Martinez: She was Fierro's girlfriend. She lived in the French Road
house with Fierro and Ibanez. Her fingerprints were found in
numerous places on the drug ledger documents seized from the French
Road house. She participated in leasing the French Road house under
a false name. Her address book (with her fingerprints on it)
containing drug ledger information was found in Ibanez' car. She
was seen in possession of the denim bag that Serna later used to
carry the four kilograms of cocaine. She was seen accompanying
Fierro and Ibanez driving to pay phones and making trips to and
from the French Road house and the Hammerly apartment, and meeting
with other unknown people in parking lots. She had access to the
Hammerly apartment along with Fierro. She was present in the car
with Fierro when Fierro made numerous phone calls to Serna's pager.
Her Columbian passport was found in the French Road house. Her
Texas identification card bore the same address as Ibanez's
driver's license. Her fingerprints -- and on at least on occasion,
her name -- were found on wire transfer documents found in the
French Road house trash. She admitted to transferring $5,000 to a
man in Columbia as a "favor" to another man she had known less than
a month. She purchased a .38-caliber revolver and the receipt was
found in Ibanez' car. She claimed she later lost the gun. The
government argued that Martinez was a subordinate to her boyfriend,
Fierro, and was aware of his drug distribution operation and
participated in keeping records of it.
9

Based on the evidence as stated, and keeping in mind the
standard of review for sufficiency, we hold that the evidence was
sufficient to support the jury's convictions of all five defendants
on all counts.1
Whether Ibanez's Consent to Search was Voluntary
Before trial, Ibanez moved to suppress all evidence seized
during the November 16, 1991 search of the Hammerly apartment and
Ibanez's Ford Escort, claiming that the consent he gave was not
voluntary. No drugs were seized from the car or apartment, but two
items found in the car were introduced at trial -- a wallet and an
address book with drug ledger information in it, both apparently
belonging to Martinez. After holding a evidentiary hearing on the
motion to suppress, the trial court denied the motion, finding that
Ibanez's consent to the search was voluntary.
On the day in question, several police officers knocked on the
door of Ibanez's apartment and requested consent to search, stating
that some kilograms of cocaine had been seized from a person who
had been seen earlier at Ibanez's apartment. Ibanez signed a
Spanish-language consent-to-search form. At the suppression
hearing, Ibanez testified that he gave consent "first because I
have nothing to hide," and secondly because he was afraid of the
officers. The officers did not explain to him that he had a right
to refuse them entry. The court, in denying the motion, pointed to
Ibanez's testimony:
1Serna does not attack the sufficiency of the evidence to
support his substantive drug conviction.
10

"I think his consent was voluntarily given. He said it.
Whether or not he had some apprehension or whether he was
under some constraint ... I think anyone, any individual
would be under some apprehension or stress in that
regard. ... I don't see any overbearing conduct or
anything of that sort by the officer, so I'm going to
deny the motion."
Consent is a fact issue, so the trial court's determination that
consent was voluntary will not be reversed absent clear error. The
government has the burden to prove consent by a preponderance of
the evidence, United States v. Hurtado, 905 F.2d 74, 76 (5th Cir.
1990)(en banc), and the reviewing court must take into account the
totality of the circumstances surrounding the consent. United
States v. Gonzalez-Basulto, 898 F.2d 1011, 1012-13 (5th Cir. 1990);
See also United States v. Olivier-Becerril, 861 F.2d 424, 426 (5th
Cir. 1988)(noting six factors relevant to voluntariness); United
States v. Sutton, 850 F.2d 1083, 1085 (5th Cir. 1988)(noting that
voluntariness does not require giving of Miranda warnings or
informing subject of right to refuse). We have reviewed the
suppression hearing record, and we do not find clear error in the
trial court's finding that Ibanez voluntarily consented to the
search.
Whether Prosecutor's Arguments Require Reversal
Grajales complains that the prosecutor's closing arguments
were so improper that they denied Grajales a fair trial. He
contends that the prosecutor (1) improperly commented on Grajales'
failure to testify by stating that "defendants present no credible
evidence that any of them ever did any work," and (2) intentionally
misstated the law of conspiracy by stating that a defendant is
11

guilty of conspiracy if he knows of others' criminal activity and
does not take affirmative steps to disassociate himself from that
activity. Grajales' counsel objected to both arguments, but on each
occasion the objection was overruled.
The prosecution may not comment directly or indirectly on a
defendant's failure to testify. United States v. Bright, 630 F.2d
804, 825 (5th Cir. 1980). A misstatement of the law by the
prosecutor during closing arguments can also invalidate a
conviction. United States v. Mackey, 571 F.2d 376, 384 (7th Cir.
1978). When a contemporaneous objection is made to such a comment,
the standard of review is whether the defendant's substantial
rights have been prejudiced. United States v. Granville, 716 F.2d
819, 821 (11th Cir. 1983). Grajales argues that the "failure-to-
testify" comment requires that he receive a new trial, and that the
misstatement of conspiracy law requires reversal of his conviction,
because it unconstitutionally shifted the burden of proof by
telling the jury that the defendant had to come forward with
evidence that he took affirmative steps to "get off the bus."
Grajales contends that both improper arguments were aggravated by
the trial court's overruling of objections, because this implied
that the court approved of the argument.
We do not view the prosecutor's comments in isolation, but
rather in the context of the entire trial. United States v. Young,
470 U.S. 1, 11 (1985). The dispositive question is whether the
prosecutor's remarks cast serious doubt on the correctness of the
jury's verdict. United States v. Kelley, 981 F.2d 1464, 1473 (5th
12

Cir.), cert. denied, 113 S. Ct. 2427 (1993). We give deference to
a district court's determination of whether closing arguments are
prejudicial or inflammatory. United States v. Willis, 6 F.3d 257,
263 (5th Cir. 1993). We had reviewed the entire trial transcript,
including the closing arguments, and we hold that the prosecutor's
"conspiracy bus" simile, taken in context, did not cast serious
doubt upon the correctness of the verdict because (1) the court
gave an accurate explanation of conspiracy law; (2) the court
instructed that the arguments of counsel are not evidence;2 (3) the
evidence of Grajales' guilt was sufficient to support his
conviction. Regarding the alleged comment on Grajales' failure to
testify, we disagree that a reasonable jury would interpret the
argument as such. In addition, although the government may not
comment directly or indirectly on the defendant's failure to
testify, the government may comment on the failure of the defense,
as opposed to the defendant, to counter or explain the evidence.
2The context of this instruction makes it clear that the
jurors understood that the court's version of the law is the
version they must follow. After the prosecutor completed his main
closing argument and Grajales' counsel began his closing argument,
the government objected to Grajales' counsel's description of
conspiracy law. The following exchange took place:
Prosecutor:
"Judge, I'm going to object. That's an inaccurate
statement of the law."
The Court:
"Overruled. Ladies and gentlemen of the jury, I will
instruct you on what the law is. The lawyers will tell you what
their interpretation is, and they may even argue what they think
the facts are. But you are the fact finders, and I will give you
the law at the end of the case."
Counsel for Grajales:
"It's obvious there is a disagreement on
what the law is. But you will be instructed, as the judge told you.
... And we will wait and see who is right when the instructions are
read to you tomorrow."

13

United States v. Soudan, 812 F.2d 920 (5th Cir. 1986), cert.
denied, 481 U.S. 1052 (1987). W e h o l d t h a t t h e p r o s e c u t o r ' s
comments did not prejudice Grajales' substantial rights or cast
serious doubt upon the correctness of the verdict.
"Deliberate Ignorance" Instruction
The court instructed the jury that:
"The elements of knowledge may be satisfied by inferences drawn
from proof that a defendant deliberately closed his eyes to
what otherwise would have been obvious to you. A finding beyond
reasonable doubt of a conscious purpose to avoid enlightenment
would permit an inference of knowledge. Stated another way, a
defendant's knowledge of a fact may inferred from willful
blindness to the existence of that fact."
Grajales points out that such an instruction is dangerous because
it might allow the jury to convict a defendant who "should have
known" of illegal conduct. A "deliberate ignorance" instruction is
properly given only when "the facts support an inference that the
defendant was subjectively aware of a high probability of the
existence of illegal conduct, and ... he purposely contrived to
avoid learning of the illegal conduct." United States v. Breque,
964 F.2d 381, 388 (5th Cir. 1992), cert. denied, 113 S. Ct. 1253
(1993); see also United States v. Ojebode, 957 F.2d 1218, 1229 (5th
Cir. 1992)(stating that such an instruction "should rarely be
given"), cert. denied, 113 S. Ct. 1291 (1993). Grajales claims that
the instruction was improper on the facts of his case because
"there was no question presented on whether [Grajales] closed his
eyes to the obvious." The government argues that Grajales did not
properly object at trial and that thus a plain error analysis is
appropriate. In any case, we hold that the instruction was proper.
14

The evidence shows that Grajales lived in the Prestwood house for
at least nine months. On November 16, 1991 -- the same day that
more than $1 million in cash was seized from a bedroom of the
Prestwood house, and 84 kilograms of cocaine were seized from the
kitchen cabinets and garage of the Prestwood house -- Grajales was
seen entering and leaving the house and was carrying a key to the
house. At trial, Grajales' counsel made the following argument:
"Now, so what if this man had the keys to that house? Did that
mean that's the only keys to this house? Did that mean he is
the only person that has access to that house? Did that mean he
knew what was in the kitchen? Does that mean that he knew there
was money in that suitcase locked up in another bedroom?
We hold that such an argument claims a lack of guilty knowledge,
and it clearly supports the deliberate ignorance instruction.
Admission of Drug Ledgers
Fierro and Martinez challenge the trial court's admission into
evidence of drug ledgers seized from the French Road house and the
address book/drug ledger found in Ibanez's car. The drug ledger
documents were found under sofa cushions, on the coffee table and
in the master bedroom closet at the French Road house where Fierro
and Martinez lived. A government expert testified that the
calculations in the various ledgers were related to kilograms and
prices per kilogram. The government did not introduce any testimony
from a handwriting expert to determine the author of any of the
drug ledgers, even though an IRS expert had examined the
calculations in the ledgers along with court-ordered handwriting
samples from all five defendants.
Martinez did not object to the admission of any of the
15

ledgers, and Fierro objected only to the admission of the three
ledgers found in the French Road house. Therefore, Martinez's
challenge on appeal to the admission of all four ledgers -- and
Fierro's challenge to the admission of the ledger found in Ibanez's
car -- are reviewed today only for plain error. See FED. R. CRIM. P.
52(b); United States v. Olano, 113 S. Ct. 1770, 1777-78 (1993).
Fierro and Martinez claim that the ledgers are hearsay and
cannot be admitted as admissions or co-conspirator statements under
Federal Rules of Evidence 801(d)(2) because the government did not
prove who authored them. They also contend that the evidence does
not support the admission of the drug ledgers as business records
under Federal Rules of Evidence 803(6). However, identification of
the declarant -- such as the author of a drug ledger -- is not
always necessary for the admission of a co-conspirator statement.
United States v. Breitkreutz, 977 F.2d 214, 218-20 (6th Cir. 1992).
In addition, there is other evidence connecting Martinez and Fierro
with the ledgers, which also supports their admissibility. United
States v. Arce, 997 F.2d 1123, 1128 (5th Cir. 1993). An FBI expert
identified Martinez's fingerprints on 95 separate places on the
ledger found on the coffee table, and Fierro's prints were
identified on 23 separate places on the coffee table ledger. On the
address book/drug ledger found in Ibanez's car, the expert found
Martinez's prints in five places and Fierro's prints in two places.
Both Martinez and Fierro lived in the house where the ledgers were
found, and there was other evidence of their involvement in the
16

cocaine conspiracy, including Fierro's and Martinez's connections
and activities with the other defendants. We hold that the trial
court's admission of the ledgers was not error.
Sentencing
A: Amount of Cocaine Involved in Conspiracy
and Attributable to Each Defendant
When imposing sentence for a drug offense, a district court is
not limited to a consideration of the quantity of drugs actually
seized or charged, but may consider any amounts that were part of
a common plan of distribution, if those larger amounts were
reasonably foreseeable and were part of the illegal activity the
defendant joined. United States v. Smith, 13 F.3d 860, 864-65 (5th
Cir. 1994), cert. denied, 114 S. Ct. 2151 (1994). At sentencing,
the trial court found that the overall conspiracy involved more
than 178 kilograms of cocaine. This total took into account the 84
kilograms of cocaine found in the Prestwood house, the four
kilograms of cocaine in the denim bag abandoned by Serna, and an
additional 90 kilograms represented by the $1.1 million in cash
found at the Prestwood house. In accordance with the Sentencing
Guidelines,3 the trial court found that Fierro, Martinez and Ibanez
were each accountable for 59 kilograms of cocaine, Serna was found
accountable for 88 kilograms, and Grajales was found accountable
3U.S.S.G. � 2D1.4; U.S.S.G. � 1B1.3(a)(1)(B) & note 2 ("With
respect to offenses involving contraband (including controlled
substances), the defendant is accountable for all quantities of
contraband with which he was directly involved and, in the case of
a jointly undertaken criminal activity, all reasonably foreseeable
quantities of contraband that were within the scope of the criminal
activity that he jointly undertook.").
17

for the full 178 kilograms. Fierro and Ibanez challenge the trial
court's determinations of the amount of cocaine attributable to
them.4
A district court's factual finding concerning the amount of
drugs to be considered in sentencing a defendant will not be
overturned absent clear error. United States v. Rivera, 898 F.2d
442 (5th Cir. 1990). A finding is not clearly erroneous as long as
it is plausible in the light of the record as a whole. United
States v. Shipley, 963 F.2d 56, 58 (5th Cir.), cert. denied, 113 S.
4Grajales' brief does not challenge the quantity of cocaine
attributed to him. Martinez challenges quantity in her brief, but
she did not object to the quantity determination at sentencing;
therefore she is not entitled to appellate relief. See United
States v. Guerrero, 5 F.3d 868, 871 (5th Cir. 1993)(holding that
"questions of fact capable of resolution by the district court upon
proper objection at sentencing can never constitute plain error."),
cert. denied, 114 S. Ct. 1111 (1994).
Similarly, we do not address Serna's challenge to the 88
kilograms of cocaine attributed to him, because he did not preserve
this argument before the trial court below. Serna objected at
sentencing only to the PSI's determination that he was responsible
for the entire 178 kilograms (representing the money seized at the
Prestwood house as well as the 88 kilograms seized). In his
objections to the presentence report, Serna stated: "Defendant
asserts that his guideline computation should be based on 87
kilograms and requests a hearing to resolve this matter." At the
sentencing hearing, Serna's counsel reiterated this position,
stating that "we would feel that [base offense] level 36 is the
proper level, that the cocaine should be at that level 36, not a
level 38." See U.S.S.G. � 2D1.1(c)(4)(Drug Quantity Table, showing
a base offense level of 36 corresponding to a finding that 50 to
150 kilograms of cocaine were involved in the offense); compare
�2D1.1(c)(6)(a finding of 178 kilograms would have mandated a base
offense level of 38).
The court sustained Serna's objection, finding that Serna was
connected only to the cocaine seized at the Prestwood house, not
with the money. In accordance with the court's ruling, the final
judgment entered against Serna reflects an offense level of 36.
Because Serna's objection to quantity at sentencing was determined
in his favor and he did not make a further objection, we find that
Serna may not make a further challenge to the quantity of cocaine
attributed to him at sentencing. Guerrero, 5 F.3d at 871.
18

Ct. 348 (1992). With regard to Fierro and Ibanez, the district
court came up with 59 kilograms by adding together the figures
contained in the drug ledgers seized from the French Road house and
Ibanez's car. The government's expert witness testified that
calculations in the ledgers included four cocaine transactions: one
for eight kilograms, one for nine kilograms, one for 12 kilograms
and one for 30 kilograms. We have examined the record, and we do
not find clear error in the trial court's finding that Fierro and
Ibanez may be sentenced on the basis of 59 kilograms.5
B: Upward and Downward Adjustments for Roles in the Conspiracy
Grajales claims the trial court improperly enhanced his
offense level by four levels upon finding that he was an "organizer
or leader" under U.S.S.G. � 3B1.1(a). Fierro claims that the trial
court improperly enhanced his offense level by two levels upon
finding that he was a "manager or supervisor" under U.S.S.G. �
3B1.1(c). Serna, although he did not object on this ground at
sentencing, claims that the district court erred in not considering
5Ibanez also claims that a remand for re-sentencing is
required because the trial court did not comply with Federal Rules
of Criminal Procedure 32(c)(3)(D) by making explicit factual
findings on each contested statement in his presentence report. We
have reviewed the sentencing transcript, and we hold that the court
complied with Rule 32. See United States v. Carreon, 11 F.3d 1225,
1230-31 & n.17 (5th Cir. 1994)(noting that the district court is
not required to "regurgitate" the facts to satisfy Rule 32
concerns).
19

a downward adjustment of two to four levels based on his "minor" or
"minimal" role in the conspiracy. U.S.S.G. � 3B1.2. Again, Serna is
not entitled to appellate relief on this point, because questions
of fact capable of resolution at sentencing can never constitute
plain error. United States v. Guerrero, 5 F.3d 868, 871 (5th Cir.
1993), cert. denied, 114 S. Ct. 1111 (1994).6
When proper objection is made, a district court's finding of
a defendant's role in the offense is reviewed for clear error.
United States v. Bethley, 973 F.2d 396, 401 (5th Cir. 1992). As we
discussed above, the evidence introduced at trial was sufficient
for the trial judge to find that Fierro was a manager or supervisor
of Ibanez and Martinez in the drug distribution enterprise, and
that Grajales was the organizer or leader of the overall operation.
We have reviewed the evidence against Fierro and Grajales, and we
hold that the trial court did not clearly err in making the upward
adjustments due to their supervisory roles in the offense.
6Serna also argues that his attorney was ineffective at
sentencing by failing to argue for a offense level reduction under
� 3B1.2. Serna points to the trial court's statement that Serna
should be sentenced "at the lower end of the guidelines because in
my opinion, he was a courier whose responsibility it was to assist
in the distribution." Serna says his trial counsel's failure to
move for the level decrease, given these facts, was unreasonable.
However, we have held that ineffective assistance claims cannot be
resolved on direct appeal unless adequately raised in the district
court. United States v. McCaskey, 9 F.3d 368, 380 (5th Cir. 1993),
cert. denied, 114 S. Ct. 1565 (1994). We hold that the record in
this case is not sufficiently developed with respect to the
ineffective assistance claim to justify an exception to the general
rule of non-review. See United States v. Bermea, 30 F.3d 1539, 1573
& n.4 (5th Cir. 1994). Serna remains free to pursue his claim of
ineffective assistance in accordance with 28 U.S.C. � 2255.
20

C: Presence of a Weapon
Grajales challenges the increase of his offense level by two
levels because of the presence of a weapon during the offense,
pursuant to U.S.S.G. � 2D1.1(b)(1). This determination is also
reviewed for clear error. United States v. Menesses, 962 F.2d 420,
428 (5th Cir. 1992). The evidence shows that a 9mm pistol was found
in a kitchen cabinet of the Prestwood house "three or four feet"
from a "stack of cocaine." Grajales possessed a key to the house,
had lived there for nine months and was present at the house on the
day the cocaine and gun were seized. He was found to be the
leader/organizer of the operation who was in charge of the cocaine
and the money. There was no clear error in the � 2D1.1(b)(1)
adjustment. United States v. Webster, 960 F.2d 1301, 1310-11 (5th
Cir.)(gun in kitchen cabinet), cert. denied sub. nom. Nelson v.
United States, 113 S. Ct. 355 (1992); United States v. Villarreal,
920 F.2d 1218, 1221 (5th Cir. 1991)(handgun in kitchen drawer near
where cocaine was stored).
Cross-Appeal - Downward Departure for Grajales
Grajales' total offense level of 44 mandates a guideline range
of life imprisonment. U.S.S.G. Chapter 5, Part A (Sentencing
Table). However, the trial court departed downward and sentenced
Grajales to 240 months, stating that it believed a 20-year sentence
was long enough in light of the fact that the 43-year-old Grajales
would be 64 or 65 when he got out of prison. The trial court stated
that, when the defendant is in his forties, "20 years is life as
far as I'm concerned."
21

A district court cannot depart from the guideline range unless
it identifies "an aggravating or mitigating circumstance of a kind,
or to a degree, not adequately taken into consideration by the
Sentencing Commission" in formulating the guidelines. 18 U.S.C. �
3553(b); U.S.S.G. � 5K2.0.7 Under U.S.S.G. � 5H1.1, a defendant's
age is an improper basis for departure unless the defendant is
"elderly and infirm" at the time of sentencing. Grajales'
presentence report, however, states that "he currently enjoys
generally good health and is neither under a doctor's care nor
taking any medication."
The district court's comments at sentencing indicate that the
departure may also have been motivated by letters from Grajales'
family and from government officials, describing Grajales'
character. However, character, family ties, family responsibilities
and community ties are also improper grounds for departure.
U.S.S.G. 壯 5H1.5, 5H1.6, 5H1.11; United States v. O'Brien, 950
F.2d 969 (5th Cir. 1991), cert. denied, 113 S. Ct. 64 (1992);
United States v. Burch, 873 F.2d 765, 768 (5th Cir. 1989).
For these reasons, we hold that the downward departure for
Grajales was improper, and we vacate Grajales' sentence and remand
his case for re-sentencing within the guideline range.
7The government and Grajales disagree on the proper standard
of review for a trial court's departure from the sentencing range.
We review the degree or reasonableness of a departure for abuse of
discretion. However, whether the ground for departure is proper is
a question of law reviewable de novo because it involves an
interpretation of the Sentencing Guidelines. United States v.
Wilder, 15 F.3d 1292, 1300 (5th Cir. 1994); United States v. White,
945 F.2d 100, 101 (5th Cir. 1991).
22

Conclusion
Therefore, for the reasons stated in this opinion, we AFFIRM
the convictions of all defendants on all counts. We AFFIRM the
sentences of defendants Fierro, Martinez, Serna and Ibanez. We
VACATE the sentence of Grajales because of the trial court's
improper downward departure and REMAND his case for re-sentencing.
wjl\opin\92-2370.opn
ace
23