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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 92-5563
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RUDY RIOS SANCHEZ,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________________________________________________
(April 9, 1993)
Before JOHNSON, JOLLY, and DAVIS, Circuit Judges.
JOHNSON, Circuit Judge:
A jury found Rudy Rios Sanchez guilty of conspiring to
distribute heroin, distributing heroin, and aiding and abetting
the distribution of heroin. The district court sentenced Sanchez
to 210 months incarceration for each count, with each term of
imprisonment to run concurrently. Sanchez presents this Court
with five points of error. Finding no error, we affirm.
I. Facts and Procedural History
On May 23, 1991, Officer Leo Alonzo, an undercover San
Antonio police officer, drove a pickup truck to the 4900 block of
Buena Vista. Noticing that a known drug trafficker, Antonio

Garza-Cavazos,1 was sitting on the porch of the house at 4906
Buena Vista, Alonzo drove past the house and proceeded to Eddie's
Food Market. Officer Alonzo, exiting his truck, motioned to a
man at the food market that he, Alonzo, wanted to obtain illegal
drugs.2 The man pointed toward the 4900 block of Buena Vista and
responded that the drugs were "en la casa."3
The man then entered a primer gray Volkswagen bug and drove
to the house at 4906 Buena Vista. Alonzo took a different route
to reach the same location. When Alonzo arrived, he parked his
truck west of the house and then walked to the fence which
encircled the house. By this time, the primer grey Volkswagen
which Alonzo had just seen at Eddie's Food Market was in the
driveway of the house, and the individual whom Alonzo had seen
driving the vehicle from the store was squatting down next to
Cavazos. Cavazos asked Officer Alonzo what he wanted, and Alonzo
responded that he wanted "two dimes," which on the streets of San
Antonio means two ten-dollar bags of heroin. The man squatting
next to Cavazos went to the fence, took twenty dollars from
Officer Alonzo, and returned to the porch to deliver the money to
Cavazos. Cavazos then gave the man two pink balloons which
contained 83 milligrams of heroin. The man handed those balloons
1Officer Alonzo had previously purchased heroin from
Cavazos.
2Apparently, shrugging one's shoulders with one's hands held
out and palms facing upward is a well-known greeting which
communicates that the greeter wants to buy illegal drugs.
3This Spanish phrase simply means, "at the house."
2

to Officer Alonzo. This transaction occurred at approximately
10:45 in the morning.
Because Alonzo did not know the man who had given him the
heroin, Alonzo wrote down the license-plate number of the primer
grey vehicle and, as he left the block, radioed for a uniformed
officer in the area to drive to the house at 4906 Buena Vista to
obtain the identity of the unknown person on the porch. That
officer later informed Officer Alonzo that the individual in
question was the defendant-appellant, Rudy Rios Sanchez.4
Approximately one and one-half weeks later, on June 3,
Officer Alonzo's partner, Officer Barbe, presented Alonzo with
two photographs. Alonzo immediately recognized the man in one of
the photos as Cavazos and the man in the other photo as the
person who had driven the primer grey Volkswagen and who had
aided Cavazos in the May 23 heroin transaction. That photograph
pictured Rudy Rios Sanchez.
Sanchez was tried before a jury on a two-count indictment
which charged him with conspiracy to distribute heroin and with
distribution and aiding and abetting the distribution of heroin.
The entire defense was based upon the premise that Officer Alonzo
had been mistaken in identifying Sanchez. In fact, during the
Government's case-in-chief, the defense counsel attempted to
discredit Officer Alonzo's ability to identify people in general.
The defense counsel introduced seven photographs into evidence.
4The officer had apparently obtained the information from
Sanchez's driver's license.
3

Officer Alonzo was unable to identify any of the people
photographed. The defense called one witness, Gilbert Carrasco,
during its case-in-chief. Mr. Carrasco, Sanchez's court-
appointed investigator, identified each of the pictures. Five of
the people photographed were men who were incarcerated in the
Bexar County jail. Officer Alonzo had been the complaining
witness in each of their cases. The other two photographs were
pictures of the defense counsel who cross-examined Alonzo and a
court clerk whom Officer Alonzo had not seen before.
Viewing the defendant's case-in-chief as an attack on the
issue of identity, the Government called San Antonio police
officer Erasmo Martinez for rebuttal. Officer Martinez testified
that on May 30, just one week after the May 23, 1991,
transaction, he visited 4906 Buena Vista, approached a primer
grey Volkswagen bug which was parked in front of the house and
asked for "two dimes." He received from Sanchez and a second
individual two pink balloons which contained heroin. The
defendant objected, contending that the evidence was improper
rebuttal testimony and that the probative value of the evidence
was substantially outweighed by undue prejudice. The court
overruled the objection, permitted the testimony, and cautioned
the jurors that the evidence was admissible only for proving
identity.
Sanchez called Rupert Trevino for surrebuttal. Officer
Martinez had identified Trevino as the other person who took part
in the May 30 transaction. Trevino, who lived in the house next
4

door to 4906 Buena Vista, testified that except for his arrest
for that May 30 transaction, he had never before been arrested or
convicted. He further stated that he did not know Rudy Rios
Sanchez, had never sat in Sanchez's vehicle, and had never been
involved in a drug transaction. However, Mr. Trevino asserted
during cross-examination that he had often seen Sanchez sitting
in a primer grey Volkswagen bug at 4906 Buena Vista.
During the trial, the defense counsel learned that Officer
Alonzo had been accompanied by a confidential informant on May
23, 1991. The attorney asked the officer to disclose the
identity of the informant, but Alonzo refused. The court
declined to order Alonzo to divulge the informant's identity.
However, Alonzo testified that the informant had merely
accompanied him: the informant had not become involved in the
transaction whatsoever. Alonzo stated that he did not know if
the informant had even observed the transaction.
Asserting that the identity of the individual involved in
the drug transaction was extremely important, the defense counsel
asked the court to interview the informant in camera, outside the
presence of the defendant and defense counsel. The defendant
requested that the court determine if the informant had seen the
transaction, and if so, to determine if he had seen Sanchez
giving the balloons to Officer Alonzo. The court and defense
counsel agreed that if the informant inculpated Sanchez, the
defense would not want to confront the informant.
5

While the trial was on-going, the Government contacted the
confidential informant pursuant to the court's instructions. The
informant told the Government that he had known Rudy Rios Sanchez
prior to the transaction and that Sanchez was, indeed, the
individual involved in the May 23 transaction. The informant
also explained that he believed that Sanchez was a member of the
Mexican Mafia and would endanger the lives of the informant and
the informant's children if the informant's identity were ever
disclosed.
Defense counsel accepted the Government's statements, and
the court ruled that it would not require the disclosure of the
informant's identity or require him to testify. However,
reversing his earlier position, the defense counsel argued that
he wanted to cross-examine the informant, even though the
informant would positively identify Sanchez. The district judge
refused to allow the confrontation. However, later, at the
Government's insistence, the court interviewed the informant
alone in camera. After the interview, the judge, suggesting that
the informant would, indeed, implicate Sanchez, reiterated his
earlier ruling--he would not compel the Government to reveal the
informant's identity and would not require the informant to
testify.
The jury found Sanchez guilty of both the conspiracy and
distribution/aiding and abetting counts. During the sentencing
hearing, Sanchez's attorney objected to the court's use of the
same prior drug conviction for enhancing Sanchez's punishment
6

under 21 U.S.C. � 841(b)(1)(C) and for calculating Sanchez's
punishment under the career offender provision of the United
States Sentencing Guidelines. The district court overruled the
objection, enhanced Sanchez's sentence under section 841, and
sentenced Sanchez under the career offender provision. However,
because there was such a small amount of heroin involved in the
May 23 transaction, the court downwardly departed from the
recommended punishment range and sentenced Sanchez to 210 months
imprisonment.
Sanchez, alleging numerous points of error, appeals. He
argues that the photographic line-up by which Officer Alonzo
identified him was impermissibly suggestive. Sanchez also
contends that the district court erred by denying the disclosure
of the informant's identity, violated Sanchez's Sixth Amendment
confrontation rights by excluding his counsel from the in camera
interview with the informant, and erred in allowing the admission
of evidence of Sanchez's subsequent extraneous offense during
rebuttal. Sanchez lastly contends that he was placed in jeopardy
twice when the court used the same prior conviction to enhance
his sentence under section 841(b)(1)(C) and to sentence him under
the career offender provision of the sentencing guidelines.
II. Discussion
A. Photographic Identification
1. Standard of Review
The question of whether identification evidence and the
fruits therefrom are admissible is a mixed question of law and
7

fact. Lavernia v. Lynaugh, 845 F.2d 493, 499 (5th Cir. 1988).
However, Sanchez complains of the photographic lineup for the
first time on appeal. Thus, the contemporaneous objection rule
applies, and Court reviews the alleged error only for plain
error. United States v. Navejar, 963 F.2d 732, 734 (5th Cir.
1992). Plain error exists only when the alleged error is "so
obvious and substantial that failure to notice and correct it
would affect the fairness, integrity or public reputation of
judicial proceedings." Id. (quoting United States v. Lopez, 923
F.2d 47, 50 (5th Cir.), cert. denied, 111 S. Ct. 2032 (1991)).
The Court will reverse only if the alleged error resulted in
manifest injustice. Id.
2. Due Process and Photographic Identification
The Fifth Amendment affords accused individuals due process
protection against evidence derived from unreliable
identifications which are based upon impermissibly suggestive
photographic lineups. Moore v. Illinois, 434 U.S. 220, 227
(1977). Determining whether photographic identification and the
fruits therefrom must be excluded from evidence requires an
examination of two elements. First, the court must determine
whether the photographic display was impermissibly suggestive.
If it was, the court must proceed to the second inquiry and
determine whether the display posed a "very substantial
likelihood of irreparable misidentification." Simmons v. United
States, 390 U.S. 377, 384 (1968). The gravamen of the
8

determination is fairness and reliability. Manson v. Brathwaite,
432 U.S. 98, 113-14 (1977).
In this case, little doubt exists that the first element is
met. Officer Barbe presented Officer Alonzo two photographs for
the identification of two suspects. Alonzo knew one of the
suspects already, so he, in essence, looked at only one
photograph to identify Sanchez. The Supreme Court, in Manson v.
Brathwaite, made clear that exhibiting a single photograph for
identification purposes is impermissibly suggestive. 432 U.S. at
108-09. This Court must therefore determine whether the
photographic display violated Sanchez's due process rights by
causing a very substantial likelihood of misidentification.
Establishing whether reliability exists requires an
evaluation of the totality of the circumstances surrounding the
witness' initial observation of the subject and the witness'
subsequent identification of the subject. Simmons v. United
States, 390 U.S. at 382; Dispensa v. Lynaugh, 847 F.2d 211, 218
(5th Cir. 1988). Courts are to review the totality of the
circumstances by considering five factors: The witness'
opportunity to view the accused at the commission of the crime,
the witness' degree of attention to the subject during the
commission of the crime, the accuracy of the witness' description
of the accused, the degree of certainty exhibited by the witness
during the confrontation, and the amount of time which elapsed
between the crime and the confrontation. Neil v. Biggers, 409
U.S. 188, 199 (1972).
9

Here, Officer Alonzo had a superb opportunity to view the
accused. He testified that he had seen the individual in the
neighborhood prior to May 23, and he asserted that he saw the
defendant twice on the day in question: once at the food market
and once at the Buena Vista residence. The transaction occurred
outdoors in the morning light, and Officer Alonzo stood only a
few feet away from the accused for several minutes.
As to the second factor, Alonzo, an officer in the police
department for more than twelve years, had engaged in 300-500
undercover drug transactions. He had been trained to be
observant and to pay close attention to detail.5 Officer Alonzo
testified that he approached the May 23 transaction knowing that
he would later have to identify the individuals involved. Hence,
knowing that his identification of Sanchez would probably later
be scrutinized, Alonzo paid extremely careful attention to
Sanchez's face.6 Alonzo testified that nothing distracted him or
diverted his attention during the transaction. Unquestionably,
Alonzo's high degree of attention supports the admission of the
identification evidence.
5Also, Alonzo and Sanchez are both Hispanics, and, as the
Supreme Court recognized in Manson, a witness who has the same
race as the accused is unlikely to perceive only general features
of that person. See Manson, 432 U.S. at 115. We believe that
the same holds true for national origin.
6There was little need for him to pay attention to Cavazos'
features because Officer Alonzo already knew Cavazos.
10

The record is silent as to the third factor.7 However, as
to the fourth factor, Alonzo recounted during trial that he
recognized the individual photographed--Rudy Rios Sanchez--as the
same person involved in the May 23 crime. Indeed, the defense
acknowledges that Alonzo was "absolutely certain, unmistaken and
had no question but that the individual who delivered heroin to
him on May 23, was the same person that he identified in [the]
photograph." Appellant's brief at 25. His level of certainty
thus militates in favor of admissibility of the identification
evidence.
Likewise, the time between the crime and the confrontation
supports admissibility. The photographic identification occurred
only one and one-half weeks after the crime. This time period is
not significant enough to render the Alonzo's identification of
Sanchez unreliable. See Neil v. Biggers, 409 U.S. 188 (1972)
(identification which occurred seven months after the crime was
not unreliable); McFadden v. Cabana, 851 F.2d 784, 790 (5th Cir.
1988), cert. denied, 489 U.S. 1083 (1989) (identification which
occurred a "few weeks" after the crime was reliable).
An examination of the totality of the circumstances leads to
the indubitable conclusion that the photographic identification
did not create the "very substantial likelihood of irreparable
7Although Alonzo explained at trial what he then remembered
about Sanchez from the transaction, he did not explicate how he
described the suspect prior to viewing the photo display.
11

misidentification" which the Fifth Amendment prohibits.8 See
Simmons, 390 U.S. at 384. No manifest injustice occurred in
admitting evidence of the identification. We therefore reject
Sanchez's first point of error.
B. Disclosure of the Confidential Informant
Sanchez also argues that the district court erred in
denying disclosure of the confidential informant's identity.
This Court reviews the district court's grant or denial of a
request to disclose an informant's identity for abuse of
discretion. United States v. Orozco, 982 F.2d 152 (5th Cir.
8The Supreme Court reached the same conclusion in a case
quite similar to the one sub judice. In Manson v. Brathwaite, a
police officer purchased drugs from the defendant. Both
individuals were black. The transaction occurred at sunset
inside an apartment building. The only light available was
sunlight which shone through windows. Although the officer had a
lesser opportunity to view the criminal than did Officer Alonzo
in this case, he provided a good description of the subject
immediately after the transaction. Two days later the officer
viewed a single photograph of the defendant and identified him as
the man who had earlier given him drugs. 432 U.S. 98 (1977).
The Supreme Court asserted that a proper photographic
display would have included photographs of a number of
individuals who possessed physical characteristics similar to the
suspect's. Nevertheless, the Court concluded that under the
circumstances there presented, the identification evidence was
admissible. Id. at 116-17.
The Court stated that juries should weigh the identification
evidence when the evidence fails to show that a very substantial
likelihood of misidentification exists. The Court stated, "We
are content to rely upon the good sense and judgment of American
juries, for evidence with some element of untrustworthiness is
customary grist for the jury mill. Juries are not so susceptible
that they cannot measure intelligently the weight of
identification testimony that has some questionable feature."
Id. at 116. In this case, because no substantial likelihood of
misidentification existed, the question of identity was one for
the jury to decide.
12

1993); United States v. Evans, 941 F.2d 267, 272 (5th Cir.
1991).
Roviaro v. United States is the seminal Supreme Court case
which analyzes the informant's privilege. 353 U.S. 53 (1957).
The Court noted there that the purpose of the informant's
privilege was to further and to protect the public's interest in
effective law enforcement. Id. at 59. This privilege, which in
actuality is the Government's privilege, recognizes that citizens
have an obligation to inform law enforcement organizations of
their knowledge about criminal activity. The privilege also
encourages such communications by preserving the informant's
anonymity. Id.
Federal courts have long recognized that informants are a
"vital part of society's defense arsenal." McCray v. Illinois,
386 U.S. 300, 307 (1967). However, the informant's privilege is
not without limitation. It must be balanced with and must not
override defendants' rights to due process in criminal cases.
Roviaro, 353 U.S. at 60. As such, the privilege is limited by
three prudential considerations. First, if revealing the
informant's communication will not reveal the informant's
identity, that communication is not privileged. Id. Likewise,
if the informant's identity has already been revealed to one who
has a reason to resent the informant's communication, the
identity may be disclosed. United States v. Fischel, 686 F.2d
1082, 1091 (5th Cir. 1982).
13

The final consideration rises to constitutional magnitude:
If the privilege interferes with a defendant's due process right
to prepare his defense or if disclosure of the informant or his
communication is essential to a fair determination of the
defendant's guilt or innocence, the privilege must give way.
Roviaro, 353 U.S. at 62. The key to this consideration turns
upon whether the disclosure of the informant's identity or his
communication is relevant and helpful to the defendant. See id.
at 61-62; United States v. Valenzuela-Bernal, 458 U.S. 858, 867
(1982); Fischel, 686 F.2d at 1093.
This Court has developed a three-part test to determine
whether disclosure of the informant's identity or communication
is required. The Court examines 1) the informant's degree of
involvement in the crime, 2) the helpfulness of the disclosure to
the defense, and 3) the Government's interest in nondisclosure.
United States v. Vizcarra-Porras, 889 F.2d 1435, 1438 (5th Cir.
1989), cert. denied, 495 U.S. 940 (1990) (citing United States v.
Toro, 840 F.2d 1221, 1232 (5th Cir. 1988)). The application of
the test in this case supports nondisclosure.
First, the informant was hardly, if at all, involved in the
heroin transaction. He simply rode along with Officer Alonzo and
observed the crime. The informant did not set up the crime; he
did not even direct Officer Alonzo to the crime scene.9 Indeed,
because the informant was merely an observer, he was much less
9Officer Alonzo testified that he went to the house at Buena
Vista in response to citizens' complaints of drug trafficking in
that area.
14

involved than tipsters, who not only observe criminal activity,
but also report it. The Fifth Circuit has repeatedly held that
the amount of participation by a mere tipster does not compel
disclosure. United States v. Cooper, 949 F.2d 737, 749 (5th Cir.
1991), cert. denied, 112 S. Ct. 2945 (1992); United States v.
Arrington, 618 F.2d 1119, 1125, (5th Cir. 1980), cert. denied,
449 U.S. 1086 (1981); see also United States v. Diaz, 655 F.2d
580 (5th Cir. 1981), cert. denied, 455 U.S. 910 (1982). Thus,
this first prong provides no support for the defendant's
position.
The second prong is likewise unavailing for the defendant.
Not only would the informant's testimony not help the defense,
but his identification of Sanchez as the person involved in the
heroin transaction would be no less than damning to Sanchez's
case.
Finally, although this Court is not required to examine the
third prong when the defendant has failed to produce evidence
which supports the first two prongs, we note that the informant
told the Government, and presumably the court, that he believed
Sanchez to be a member of the Mexican Mafia. Based upon that
belief, the informant stated that, if his identity were
disclosed, his and his children's lives would be in grave danger.
Thus, the third prong, like the first and second prongs, favors
nondisclosure. Sanchez has utterly failed to show in any way
that the informant's identity should have been divulged.
15

Therefore, this Court holds that the district court properly
decided not to require such disclosure.
C. Sixth Amendment Right to Confrontation
Claiming that the Sixth Amendment guaranteed him the right
to confront the informant, Sanchez argues that the district court
erred by interviewing the informant in the absence of defense
counsel. Not only did Sanchez fail to object to his attorney's
exclusion from the in camera hearing, but his counsel expressly
suggested that the district court hold such a hearing in his
absence. By suggesting that of which he now complains, the
defense waived any possible error in excluding the attorney from
the hearing. In such situations, this Court will reverse only if
the alleged error was so obvious and substantial that the failure
to correct it resulted in manifest injustice. United States v.
Navejar, 963 F.2d 732, 734 (5th Cir. 1992).
Sanchez's argument on this issue is devoid of merit for two
reasons. First, the Sixth Amendment provides defendants a right
to physically face and cross-examine witnesses who testify
against them.10 Pennsylvania v. Ritchie, 480 U.S. 39, 51 (1987).
As such, the right to confrontation is a trial right. Id. at 53-
54 nn. 9-10 (asserting that "the Confrontation Clause only
protects a defendant's trial rights . . . . `It does not . . .
require the government to produce witnesses whose statements are
10The Sixth Amendment provides, "In all criminal
prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him." U.S. CONST. amend.
VI.
16

not used at trial . . . .'") (quoting Westen, The Compulsory
Process Clause, 73 Mich. L. Rev. 71, 125-26 (1974)).; Barber v.
Page, 390 U.S. 719, 725 (1968) (stating that "[t]he right to
confrontation is basically a trial right"). The right to
confront does not extend to non-trial, in camera settings. The
court therefore did not violate Sanchez's confrontation rights in
excluding his attorney from the hearing.
Second, and even more pertinent to the facts of this case,
this Court has determined that when an informant's testimony will
not significantly help the defendant's case, no in camera review
is required at all. See Diaz, 655 F.2d at 588. There can be no
question but that the informant's testimony would have severely
harmed Sanchez's case. The exclusion of the defense attorney
from the in camera interview, therefore, was not error.
D. Extraneous-Offense Evidence
Sanchez presents two reasons why the extraneous-offense
evidence, offered during the Government's rebuttal, should have
been excluded. He first urges the Court to hold that such
testimony, having exceeded the scope of the defense's case-in-
chief, was improper rebuttal evidence. Sanchez also argues that
the unfair prejudicial effect of the extraneous-offense evidence
substantially outweighed its probative value.
1. Scope of Rebuttal
Rule 611(a) of the Federal Rules of Evidence affords the
district court with discretion to control the mode and order of
17

interrogating witnesses.11 FED. R. EVID. 611(a). This grant of
discretion includes broad authority to control the scope of
rebuttal. In developing subdivision (a)(1), the advisory
committee intended that the rule restate the common law
principles with respect to judges' power and obligation to
control federal trials. FED R. EVID. 611 advisory committee's
note.
At common law, district court judges had wide discretion to
allow or disallow rebuttal evidence. Indeed, the Supreme Court
determined that district courts' control of the scope of rebuttal
evidence was reviewable only for a "gross abuse" of discretion.
Goldsby v. United States, 160 U.S. 70, 73 (1895) (emphasis
added); see also United States v. Dotson, 799 F.2d 189, 194 (5th
Cir. 1986) ("The district court had discretion to control the
scope of rebuttal evidence."); Jack B. Weinstein & Margaret A.
Berger, Weinstein's Evidence � 611[01] at 611-30-31 ("[The trial
judge's] decision [to allow or disallow rebuttal testimony] will
rarely be disturbed on appeal.").
In this case, though the defendant contends otherwise, the
entirety of Sanchez's defense was based upon the premise that
Officer Alonzo had identified the wrong person. The Government's
purpose in proffering its rebuttal evidence--to refute Sanchez's
11Rule 611(a) reads, "The court shall exercise reasonable
control over the mode and order of interrogating witnesses and
presenting evidence so as to (1) make the interrogation and
presentation effective for the ascertainment of the truth, (2)
avoid needless consumption of time, and (3) protect witnesses
from harassment or undue embarrassment." FED. R. EVID. 611(a).
18

misidentification defense--was entirely proper. The district
court did not abuse its discretion in allowing such evidence.
2. Admissibility of the Extraneous Offense Evidence
The question of whether the identification testimony was
proper rebuttal evidence is quite different from the question of
whether the specific evidence proffered was admissible under the
Federal Rules of Evidence. The Court reviews the district
court's decision to admit testimony for abuse of discretion.
United States v. Torres-Flores, 827 F.2d 1031, 1034 (5th Cir.
1987).
Evidence of extraneous offenses is admissible only if it
meets two requirements. First, the evidence must be admitted for
a reason other than to prove that the defendant has an unsavory
character and acted in conformity therewith on the occasion in
question. FED. R. EVID. 404. Second, the probative value of that
evidence must not be substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the
jury. FED. R. EVID. 403; United States v. Beechum, 582 F.2d 898,
912 n.15 (5th Cir. 1978), cert. denied, 440 U.S. 290 (1979) (en
banc).
In this case, the Government presented evidence of
Sanchez's subsequent heroin transaction through the testimony of
Officer Martinez. The Government claims that it offered this
testimony as identity evidence.12 It is well-settled that
extraneous-acts evidence offered to prove identity is admissible
12The Government also argued at trial that the evidence was
admissible to prove intent and plan. However, it has abandoned
those issues on appeal.
19

in the Fifth Circuit only if the circumstances of the extraneous
act were so similar to the offense in question that they evince a
signature quality--marking the extraneous act as "the handiwork
of the accused." Beechum, 582 F.2d at 912 n.15 (quoting United
States v. Goodwin, 492 F.2d 1141, 1154 (5th Cir. 1974)). Indeed,
proper identity evidence is tantamount to modus operandi
evidence. United States v. Baldarrama, 566 F.2d 560, 567-68 (5th
Cir.), cert. denied, 437 U.S. 906 (1978); United States v.
Goodwin, 492 F.2d at 1141, 1154 (5th Cir. 1974).
The Government argues here that there were substantial
similarities between the heroin transactions in both instances.
Both buys took place in front of the same house, the heroin had
been placed in pink balloons, and Sanchez, accompanied by a
second man, controlled the same primer gray Volkswagen.
That Sanchez acted with a second man in selling heroin in
pink balloons is not very compelling.13 However, the location of
both transactions--4906 Buena Vista--combined with the presence
of the apparent owner of the primer grey Volkswagen which had the
same license plate number is of signature quality. The
circumstances of the extraneous act were sufficiently similar to
the offense in question to establish modus operandi and to make
13Officer Alonzo testified that drug dealers often put
heroin in balloons and carry the balloons in their mouths so that
if the dealers spot a policeman, they can swallow the balloons.
If the dealers can escape the presence of the policeman within
five to ten minutes, they can regurgitate the balloons back up.
See United States v. Carrillo, 981 F.2d 772 (5th Cir. 1993).
20

the extraneous-offense evidence admissible under rule 404(b) of
the Federal Rules of Evidence.
However, determining that the Officer Martinez's testimony
was sufficient identity evidence does not end the Court's
inquiry. We must also balance the probative value with the undue
prejudicial effect. See FED. R. EVID. 403. Clearly, the evidence
in this case was very prejudicial to Sanchez. However, it is
also quite clear, indeed axiomatic, that all evidence is
designed, to a greater or lesser extent, to prejudice one's
opponent. The question therefore is not whether the evidence was
prejudicial, but whether the undue prejudicial effect of the
evidence substantially outweighed the probative value thereof.
The Fifth Circuit has determined that the degree of probity of
extraneous-acts evidence depends upon the need for the evidence,
the overall similarity between the offenses, and the amount of
time which passed between the two offenses. Beechum, 582 F.2d at
915.
In the case sub judice, the probative value was quite
strong. First, the Government needed the evidence. Although the
Government proffered evidence that it was Sanchez who had sold
the heroin, Sanchez countered with an all-out attack on the
identity issue. In fact, he based his entire defense on improper
identification. Hence, the only real question before the jury
was whether the man involved in the heroin transaction was, in
fact, Sanchez. Officer Martinez's testimony went to the heart of
that question. Further, as discussed above, the offenses were so
21

similar that evidence of the subsequent offense was tantamount to
modus operandi evidence. Finally, Officer Martinez purchased the
heroin from Sanchez just one week after Officer Alonzo's buy.
Under these circumstances, this Court concludes that the district
court did not abuse its discretion in allowing the admission of
the extraneous-offense evidence.14
E. Double Jeopardy in Sentencing
Sanchez contends in his final argument that the district
court erred in using one of Sanchez's two prior drug offenses
both for enhancement purposes under 21 U.S.C. � 841(b)(1)(C) and
for sentencing him under the career offender provision of the
sentencing guidelines. He argues that the use of that offense
put him in jeopardy twice, doubly punishing him for that same
offense. He argues in the alternative that the use of the
offense for enhancement purposes estopped the Government from
using the same offense again for career offender purposes. In
Sanchez's view, the court should have used the conviction either
for enhancing his sentence under section 841 or for sentencing
Sanchez as a career offender, but not for both. We disagree.
Sentencing statutes and the sentencing guidelines are
interdependent. The statutes paint with a broad brush, providing
a wide range of punishment available for violators of the crimes
defined therein. The sentencing guidelines, on the other hand,
14The district court cautioned the jury that the evidence
was admitted only to prove identity. This Court has previously
recognized that such cautionary instructions help to assuage the
undue prejudicial effect of extraneous-acts evidence. Beechum,
582 F.2d at 917 & n. 23.
22

supply the fine details needed in the statutes' broad picture.
The guidelines tailor sentences to the unique circumstances and
characteristics of the offender and the offense.
In this case, 21 U.S.C. � 841(b)(1)(C) establishes the broad
principle that a person who has been convicted under its
provisions and who has previously been convicted of a similar
offense15 may be more harshly punished.16 The statute provides
the judge with a greater range of punishment, but the judge's
discretion to dole out the statutory punishment is limited by the
sentencing guidelines' requirement that the punishment be
15By similar offense, the Court means an offense for which
21 U.S.C. � 841(b)(1)(C) enhances punishment--a separate
conviction under paragraph C, a felony conviction under
subchapters I or II of that chapter, or a conviction under any
other state, federal or foreign law relating to narcotics,
marijuana, depressants, or stimulants. See 21 U.S.C. �
841(b)(1)(C).
16That statute reads:
In the case of a controlled substance . . . such
person shall be sentenced to a term of imprisonment of
not more than 20 years and if death or serious bodily
injury results from the use of such substance shall be
sentenced to a term of imprisonment of not less than
twenty years or more than life, a fine not to exceed
the greater of that authorized in accordance with the
provisions of Title 18, or $1,000,000 if the defendant
is an individual or $5,000,000 if the defendant is
other than an individual, or both. If any person
commits such a violation after one or more prior
convictions for an offense punishable under this
paragraph, or for a felony under any other provision of
this subchapter . . . , have become final, such person
shall be sentenced to a term of imprisonment of not
more than 30 years and if death or serious bodily
injury results from the use of such substance shall be
sentenced to life imprisonment.
21 U.S.C. � 841(b)(1)(C) (emphasis added).
23

individualized to the facts and circumstances of the defendant
and the crime.
The guidelines therefore direct the sentencing judge to look
at the defendant's number and type of previous felony convictions
to determine if and how the additional statutory punishment range
will affect the defendant. If a defendant has only one previous
felony conviction for a controlled substance offense and no
previous convictions for a crime of violence, his prior criminal
history is considered only in light of section 4A1.1 of the
sentencing guidelines. The statutory maximum will affect his
sentencing guidelines range only if the computations under the
guidelines provide for a range that exceeds the unenhanced
maximum sentence.17
17The statutes control over sentencing guideline provisions,
so the sentencing guidelines must defer to the statutory
punishment range when a conflict arises. Section 5G1.1 explains:
(a) Where the statutorily authorized maximum sentence
is less than the minimum of the applicable guideline
range, the statutorily authorized maximum sentence
shall be the guideline sentence.
(b) Where a statutorily required minimum sentence is
greater than the maximum of the applicable guideline
range, the statutorily required minimum sentence shall
be the guideline sentence.
(c) In any other case, the sentence may be imposed at
any point within the applicable guideline range,
provided that the sentence --
(1) is not greater than the statutorily
authorized maximum sentence, and
(2) is not less than any statutorily required
minimum sentence.
U.S.S.G. � 5G1.1.
24

On the other hand, Congress has determined that a defendant
who has been previously convicted of more than one similar
offense or has been convicted of one similar offense and one or
more crimes of violence shall be more severely punished than a
defendant with only one such prior conviction. 28 U.S.C. �
994(h). In fact, Congress has determined that in such cases, the
defendant should be given a sentence which is close to the
maximum statutory punishment.18
Thus, under 21 U.S.C. � 841(b)(1)(C), a defendant with no
previous controlled substance convictions and whose sentencing
guidelines range of punishment is 210-262 months can only be
sentenced to 210 to 240 months. The limited sentencing range is
required by the statutory mandate that terms of imprisonment not
exceed twenty years for defendants who have no previous
controlled substance convictions. 21 U.S.C. � 841(b)(1)(C).
However, the sentence of a defendant with a prior controlled
substance conviction and with no violent felony convictions would
not be so limited. His punishment range would include the entire
210-262 months because section 841(b)(1)(C) increases the
sentencing range to thirty years for defendants with a prior
controlled substance conviction.
18In outlining the Sentencing Commission's duties, Congress
mandated the following:
The Commission shall assure that the guidelines specify
a sentence to a term of imprisonment at or near the
maximum term authorized for categories of defendants in
which the defendant is eighteen years old or older and
(1) has been convicted of a felony that is .
. .
(B) an offense described in section
401 of the Controlled Substances
Act (21 U.S.C. 841) . . . and --
(2) has previously been convicted of two or
more prior felonies, each of which is--
(A) a crime of violence; or
25

Following Congress' mandate, the Sentencing Commission
designed the career offender provision. U.S.S.G. � 4B1.1. That
section provides that a defendant is to be sentenced as a career
offender if, as here, 1) the defendant was at least eighteen
years old at the time he committed the offense in question, 2)
that offense was a felony controlled substance offense or crime
of violence and 3) the defendant has at least two previous felony
convictions for controlled substance offenses and/or crimes of
violence.19 U.S.S.G. � 4B1.1. This provision fills in the
(B) an offense in section 401 of
the Controlled Substances Act (21
U.S.C. 841).
28 U.S.C. � 994(h).
19Section 4B1.1 states:
A defendant is a career offender if (1) the defendant
was at least eighteen years old at the time of the
instant offense, (2) the instant offense of conviction
is a felony that is either a crime of violence or a
controlled substance offense, and (3) the defendant has
at least two prior felony convictions of either a crime
of violence or a controlled substance offense. If the
offense level for a career criminal from the table
below is greater than the offense level otherwise
applicable, the offense level from the table below
shall apply. A career offender's criminal history
category in every case shall be Category VI.
Offense Statutory Maximum
Offense Level*
(A)
Life
37
(B) 25 years or more
34
(C)
20 years or more, but less than 25 years
32
(D) 15 years or more, but less than 20 years
29
(E)
10 years or more, but less than 15 years
24
(F) 5 years or more, but less than 10 years
17
(G)
More than 1 year, but less than 5 years
12
*If an adjustment from � 3E1.1 (Acceptance of
Responsibility) applies, decrease the offense level by
26

details of the enhancement statute's broad picture. The statute
authorizes greater punishment if more is needed, and the career
offender provision, determines when the greater punishment is
needed. Both the statute and career offender provision evince
the intent to more severely punish recidivists, and it is too
late in the day for the defendant to complain that the stiffer
punishment places him in jeopardy again for the prior conviction.
The Supreme Court announced more than fifty years ago that "[t]he
sentence as a . . . habitual criminal is not to be viewed as
either a new jeopardy or additional penalty for the earlier
crimes. It is a stiffened penalty for the latest crime, which is
considered to be an aggravated offense because a repetitive one."
Gryger v. Burke, 334 U.S. 728, 732 (1948).
If this Court construed the statutory and guidelines
provisions as the defendant desires, an offender would have to
have three previous felony convictions before the sentencing
guidelines could treat him as a career offender--one conviction
for statutory enhancement and two additional convictions for
career offender status. Such a reading of the statute would
thwart the congressional intent that a defendant with two, not
three, previous convictions be punished close to the maximum
punishment allowed. 28 U.S.C. � 994(h). We therefore hold that
2 levels.
U.S.S.G. � 4B1.1.
27

the district court properly applied the enhancement provision and
the career offender provision in this case.20
III. Conclusion
The decision of the district court is
A F F I R M E D.
20Although we are not bound by decisions of other circuit
courts, we note that every court of appeals which has decided
this issue has ruled as we do. United States v. Smith, 1993 WL
8838 (10th Cir. Jan. 21, 1993); United States v. Saunders, 973
F.2d 1354, 1364 (7th Cir. 1992), cert. denied, 113 S. Ct. 1026
(1993); United States v. Garrett, 959 F.2d 1005, 1010 (D.C. Cir.
1992); United States v. Moralez, 964 F.2d 677, 683 (7th Cir.),
cert. denied, 113 S. Ct. 293 (1992); United States v. Amis, 926
F.2d 328 (3d Cir. 1991); United States v. Sanchez-Lopez, 879
F.2d 541, 559 (9th Cir. 1989).
28