
    UNITED STATES of America, Plaintiff-Appellee v. Francisco VASQUEZ, also known as Francisco Vazquez; Juan Echeverria, Defendants-Appellants.
    No. 12-41194.
    United States Court of Appeals, Fifth Circuit.
    Sept. 3, 2014.
    
      Terri Lynn Hagan, Jay R. Combs, Assistant U.S. Attorney, U.S. Attorney’s Office, Piano, TX, for Plaintiff-Appellee.
    Margaret Loraine Schmucker, Cedar Park, TX, Jeffery Charles King, Law Office of Jeffrey C. King, Dallas, TX, for Defendant-Appellant.
    Before DAVIS, SMITH, and BENAVIDES, Circuit Judges.
   W. EUGENE DAVIS, Circuit Judge:

This is a direct criminal appeal by two co-defendants, Francisco Vasquez and Juan Echeverría, challenging their convictions and sentences for conspiracy to possess methamphetamine with intent to distribute under 21 U.S.C. § 841(a) and § 846. We affirm.

I.

Perez-Duarte, Echeverría, and Vasquez were arrested in Plano, Texas, on March 31, 2011, shortly after Perez-Duarte attempted to sell five kilograms of methamphetamine to a police informant named Mendoza at a pre-arranged meeting in a parking lot. Perez-Duarte had driven Vasquez’s red truck to the meeting with Mendoza. The methamphetamine was discovered in the bed of Vasquez’s truck. Earlier that day, Echeverría had driven Perez-Duarte in a different vehicle to a preliminary meeting with Mendoza at the same parking lot. After Perez-Duarte’s arrest, a hotel keycard from a nearby hotel was discovered in Perez-Duarte’s pocket. Later that day, police officers discovered Echeverría at the hotel. Upon seeing the uniformed police officers, Echeverría hurried inside his room and slammed the door shut for two minutes while the police knocked on the door and identified themselves as law enforcement. After the door was finally opened, the police officers found Echeverría and Vasquez inside. Both were then arrested.

The three co-defendants were charged with a single count of conspiracy to possess methamphetamine with intent to distribute under 21 U.S.C. § 841(a) and § 846. Perez-Duarte pleaded guilty, and Echeverría and Vasquez were tried jointly. Both Echeverría and Vasquez testified during their first trial, and were therefore subject to cross-examination.

At the first joint trial in November 2011, the following evidence was presented regarding Echeverria’s knowing participation in the conspiracy: (1) Echeverría drove Perez-Duarte to meet Mendoza at their preliminary meeting on March 31, 2011, in the parking lot, (2) Perez-Duarte told Mendoza that Echeverría was his “partner” within Echeverria’s hearing, (3) Echeverría ran from police when he saw them at the hotel and slammed his hotel door shut for two minutes while Vasquez flushed his ID card, the data card from a mobile telephone, and potentially other unidentified items down the toilet, (4) Echev-erría claimed to have met Vasquez on the day of their arrest in the hotel room, even though there had been more than 500 phone calls during March 2011 between Echeverria’s phone and a phone associated with a receipt found in Vasquez’s pocket, (5) a note was found in Echeverria’s pocket, on which was written a license plate number that appeared to be taken from Mendoza’s license plate (although two letters were switched), and (6) the key to Perez-Duarte’s car was found hidden in a hole punched into the wall of Echeverria’s room in the hotel, even though Perez-Duarte had his own room at a second hotel.

At the same joint trial in November 2011, the following evidence was presented regarding Vasquez’s knowing participation in the conspiracy: (1) Perez-Duarte drove Vasquez’s red truck to make the sale of methamphetamine to Mendoza, even though Perez-Duarte had another vehicle in Plano, (2) Vasquez initially told police that his truck must have been stolen, then later testified that he had lent Perez-Duarte his truck, (3) Vasquez claimed to have met Echeverría on the day of their arrest in the hotel room, even though there had been more than 500 phone calls during March 2011 between Echeverria’s phone and a phone associated with a receipt found in Vasquez’s pocket, (4) Vasquez removed the data card from one of his two mobile telephones and flushed it down the toilet just prior to his arrest in the Plano hotel room, (5) Vasquez also attempted to flush his ID card down the toilet, and (6) the key to Perez-Duarte’s car was discovered in a hole punched into the wall of the hotel room where Vasquez was arrested.

After hearing this evidence, the jury became deadlocked and the district court declared a mistrial. A second joint trial took place in January 2012. At this second trial, neither Echeverría nor Vasquez testified, and therefore neither was subject to cross-examination. The jury was permitted to listen, however, to a reading of transcripts of both co-defendants’ testimony from the first trial, at which both had been subject to cross-examination.

Two significant items of evidence were presented for the first time during the second trial. First, an inmate named San-ehez-Alvarez testified that Echeverría had confessed to him that both he and Vasquez had participated in the conspiracy with Perez-Duarte to sell methamphetamine to Mendoza. Sanchez-Alvarez was then cross-examined. However, because Echeverría elected not to testify during the second trial, Echeverría was never subjected to cross-examination regarding the content of this jailhouse confession.

Second, a California police officer testified regarding Vasquez’s 1998 conviction for heroin possession. The California police officer himself had made the 1998 arrest. As the California police officer stated, Vasquez “look[ed] just like the pictures” from the arrestee’s file.

After the conclusion of the second trial in January 2012, the jury returned guilty verdicts for both Echeverría and Vasquez. Both Echeverría and Vasquez received sentences within their respective guideline ranges.

II.

Echeverría raises two issues on appeal. First, Echeverría argues that the evidence is insufficient to show that he was a knowing participant in the conspiracy as charged. Because Echeverría failed to renew his motion for judgment of acquittal at the close of trial, we can reverse his conviction for insufficient evidence only if his conviction constitutes “a manifest miscarriage of justice.” A manifest miscarriage of justice occurs only where “the record is devoid of evidence pointing to guilt or contains evidence on a key element of the offense that is so tenuous that a conviction would be shocking.” Echever-ría argues that such a manifest miscarriage of justice is present in this case because, in his view, the record contains no evidence that Echeverría knowingly participated in Perez-Duarte’s scheme to sell methamphetamine.

As the record demonstrates, however, there is considerable evidence to show that Echeverría knowingly agreed and voluntarily participated in the conspiracy. As observed by this court in United States v. Mann, 161 F.3d 840, 847 (5th Cir.1998) (quoting United States v. Cardenas, 9 F.3d 1139, 1157 (5th Cir.1993)), “[a]n agreement may be inferred from a ‘concert of action.’ ” Such a concert of action was shown in this case. Echeverría brought Perez-Duarte to the first meeting with Mendoza, allowed himself to be called Perez-Duarte’s “partner” during this meeting, was evidently in close coordination with Vasquez throughout the preceding month, lied to the police about his acquaintance with Vasquez, and refused to allow law enforcement to enter the hotel room while Vasquez flushed his ID card, the mobile phone’s data card, and potentially other items down the toilet.

Moreover, the jury also heard Sanchez-Alvarez’s testimony regarding Echeverria’s jailhouse confession to knowing participation in the conspiracy. As to Echeverría, this confession is a non-hearsay party admission under Rule 801(d)(2)(A) of the Federal Rules of Evidence. The confession was therefore admissible as to Echeverría. This confession, in addition to the other evidence outlined above, undoubtedly provides sufficient proof as to knowledge to support the verdict under any standard. Echev-erria’s conviction therefore does not constitute a manifest miscarriage of justice.

Second, Echeverría challenges the substantive reasonableness of his sentence. As Echeverría concedes, however, his sentence was within the guideline range. Echeverría has not identified any procedural error committed by the district court in assessing the guideline range. Accordingly, Echeverria’s sentence “ ‘is presumptively reasonable’ ” under United States v. Jenkins, 712 F.3d 209, 214 (5th Cir.2013) (quoting United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.2008)). Echeverría suggests that he should have received a downward departure, but this suggestion is not supported by any authority. A district court’s refusal to grant a downward departure is not renewable “unless it was based on a misinterpretation of the Sentencing Guidelines.” Because Echeverría does not identify any such misinterpretation, we affirm his sentence.

III.

We next consider Vasquez’s arguments. Vasquez argues first that his conviction is contrary to Bruton v. United States, 391 U.S. 123, 126-28, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). According to Vasquez, his conviction violates the Confrontation Clause because Echeverria’s “confession naming him as a participant in the crime was introduced at their joint trial” through a third-party witness, Sanchez-Alvarez, without any opportunity to cross-examine the actual declarant, Echeverría. Because Vasquez raises his Bruton challenge for the first time on appeal, he must show that there was plain error affecting his substantial rights.

Under the plain error standard, Vasquez’s argument must be rejected. Many circuit courts have held that Bruton applies only to statements by co-defendants that are testimonial under Crawford v. Washington, 541 U.S. 36, 51, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). As these courts have observed, the Supreme Court described “statements from one prisoner to another” as “clearly nontestimonial” for the purposes of the Crawford analysis in Davis v. Washington, 547 U.S. 813, 825, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) (analyzing the facts of Dutton v. Evans, 400 U.S. 74, 87-89, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970) (plurality opinion)). Based on this dicta, the Fourth Circuit held in United States v. Dargan, 738 F.3d 643, 650-51 (4th Cir.2013), that the rule of Bruton was “simply irrelevant in the context of nontestimonial statements” made “to a cellmate in an informal setting.” The Third Circuit likewise held in United States v. Berrios, 676 F.3d 118, 128 (3d Cir.2012), that Bruton is no longer applicable to a non-testimonial “prison yard conversation” because “Bruton is no more than a by-product of the Confrontation Clause.” The First, Second, Sixth, Eighth, Ninth, and Tenth Circuits have also limited Bruton to testimonial statements only.

Vasquez has never disputed the government’s characterization of Echeverria’s jailhouse confession as non-testimonial. Accordingly, the district court’s decision to admit Sanchez-Alvarez’s testimony regarding Echeverria’s non-testimonial confession was entirely in accordance with most of the circuit authorities interpreting the relationship between Bruton and Crawford. The district court therefore did not commit plain error, and Vasquez’s Bruton challenge must be rejected.

IV.

Vasquez’s remaining arguments also fail to identify any reversible error. In particular, his claim for ineffective assistance of counsel was never presented to the district court. Since the record does not permit us to “ ‘fairly evaluate the merits of the claim,”’ this challenge is premature on direct appeal under United States v. Aguilar, 503 F.3d 431, 436 (5th Cir.2007) (quoting United States v. Partida, 385 F.3d 546, 568 (5th Cir.2004)).

The district court also did not err in admitting evidence of Vasquez’s prior conviction for possession of heroin under Rule 404(b) of the Federal Rules of Evidence. As explained in United States v. Cooks, 589 F.3d 173, 182 (5th Cir.2009) (quoting United States v. Crawley, 533 F.3d 349, 354 (5th Cir.2008) (alteration omitted)), “ ‘the government need only provide some evidence that the defendant committed the prior bad act.’ ” Here, the California police officer who made the 1998 arrest testified that Vasquez “look[ed] just like the pictures” of the individual convicted in California. That individual also had the same name as Vasquez. The prior conviction was therefore admissible.

We also reject Vasquez’s argument under Rule 403 regarding the admissibility of the photograph of the AK-47 rifle found on Vasquez’s phone. Although Vasquez objected to the photo during the first trial, his objection was never renewed during the second trial. Accordingly, under United States v. Palmer, 122 F.3d 215, 221 (5th Cir.1997), any “objections made at the aborted trial have no bearing on the retrial, as the two are entirely separate affairs.” Under the plain error standard, therefore, Vasquez’s challenge must be rejected. Admission of the photograph was neither a plain error nor, given the substantial other evidence against him, a source of prejudice to Vasquez’s substantial rights in the present case.

Additionally, in light of Vasquez’s failure to renew his motion for judgment of acquittal, we also conclude that his conviction under 21 U.S.C. § 841(a) and § 846 did not constitute a manifest miscarriage of justice due to insufficiency of the evidence. The record contains sufficient evidence to show Vasquez’s knowing participation in the drug conspiracy. As described above, Vasquez participated in a “concert of action” with Echeverría, which demonstrates knowledge of a conspiracy under Mann, 161 F.3d at 847, and Cardenas, 9 F.3d at 1157. Echeverria’s jailhouse confession to Sanehez-Alvarez also directly implicated Vasquez’s involvement in the conspiracy. We therefore find no manifest miscarriage of justice.

Finally, the district court did not err in sentencing Vasquez based on a mandatory minimum without a special jury verdict as to the fact of Vasquez’s previous drug conviction. Vasquez’s argument to the contrary is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 246-47, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998).

CONCLUSION

For the reasons stated above, we AFFIRM the convictions and sentences as to both Echeverría and Vasquez.

AFFIRMED. 
      
      . United States v. Burton, 324 F.3d 768, 770 (5th Cir.2003); United States v. Galvan, 949 F.2d 777, 783 (5th Cir.1991).
     
      
      . United States v. Dowl, 619 F.3d 494, 500 (5th Cir.2010); United States v. McIntosh, 280 F.3d 479, 483 (5th Cir.2002).
     
      
      . See United States v. Shoemaker, 746 F.3d 614, 624-25 n. 11 (5th Cir.2014); United States v. Dixon, 132 F.3d 192, 198 (5th Cir.1997). As for Vasquez's challenge to Sanchez-Alvarez’s testimony under Bruton v. United States, 391 U.S. 123, 127-28, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), we address that argument below. Echeverría cannot himself invoke Bruton because "[t]he rule enunciated in Bruton stems from the right to confrontation and is designed to protect the non-testifying confessor's codefendant, not the confessor himself.” See United States v. Morales, 477 F.2d 1309, 1316 (5th Cir.1973).
     
      
      
        .See Burton, 324 F.3d at 770.
     
      
      . United States v. McClatchy, 249 F.3d 348, 360 (5th Cir.2001).
     
      
      . See United States v. Nutall, 180 F.3d 182, 188 (5th Cir.1999).
     
      
      . See United States v. Barrandey, 481 Fed.Appx. 221, 224 (5th Cir.2012); United States v. Martinez, 172 F.3d 866, 1999 WL 129663, at *1 (5th Cir.1999) (per curiam); United States v. Gauthier, 248 F.3d 1138, 2001 WL 85819, at *1 (5th Cir.2001) (per curiam).
     
      
      . See United States v. Alaniz, 726 F.3d 586, 615 (5th Cir.2013).
     
      
      . United States v. Figueroa-Cartagena, 612 F.3d 69, 85 (1st Cir.2010).
     
      
      . United States v. Pike, 292 Fed.Appx. 108, 112 (2d Cir.2008).
     
      
      . United States v. Johnson, 581 F.3d 320, 326 (6th Cir.2009).
     
      
      . United States v. Dale, 614 F.3d 942, 958-59 (8th Cir.2010).
     
      
      . Smith v. Chavez, 11-55211, 2014 WL 1229918, at *1 (9th Cir. Mar. 26, 2014).
     
      
      . United States v. Clark, 717 F.3d 790, 816 (10th Cir.2013).
     
      
      . We applied a similar analysis in our unpublished decision in United States v. Surtain, 519 Fed.Appx. 266, 288 (5th Cir.2013). By contrast, because the defendant “was tried alone,” we did not address the issue at all in Fratta v. Quarterman, 536 F.3d 485, 496, 502 (5th Cir.2008) ("[I]t was unreasonable ... to extend the rule of Bruton, which applies in the context of joint or multi-defendant trials, to the context of a single-defendant trial....”).
     
      
      . The Seventh Circuit has arguably applied Bruton to non-testimonial statements, although without explicitly acknowledging the resulting split of authority. See Jones v. Basinger, 635 F.3d 1030, 1037, 1050-52 (7th Cir.2011) ("Lewis claimed that his brother James Parks had confessed to Lewis that he, Aaron, and Jones had committed the four murders.... Bruton makes clear that Jones’ right to confront Lewis and Parks about that confession was violated by Lewis’ and Parks’ failure to testify at trial and to subject their testimony to the 'crucible of cross-examination.’ ”).
     
      
      . See Burton, 324 F.3d at 770.
     
      
      . See Alleyne v. United States, — U.S. —, 133 S.Ct. 2151, 2160 n. 1, 186 L.Ed.2d 314 (2013); United States v. Posey, 13-50570, 2014 WL 1724499, at *3 (5th Cir. May 2, 2014); United States v. Salazar, 548 Fed.Appx. 289, 289-90 (5th Cir.2013); United States v. Fuentes-Ulloa, 550 Fed.Appx. 251, 252 (5th Cir.2013); see also United States v. King, 751 F.3d 1268, 1280 (11th Cir.2014); United States v. Mack, 729 F.3d 594, 609 (6th Cir.2013).
     