United States v. Barnes

138 F. App'x 655
Court of Appeals for the Fifth Circuit·Decided July 6, 2005·No. Nos. 04-30013, 04-30014, 04-30110, 04-30111, 04-30112, 04-30232·Published

Opinion

PER CURIAM: *

These consolidated appeals arise out of the prosecution of various members of a cocaine distribution ring in Farmerville, Louisiana. Six defendants, Thomas Nation (Thomas), Marilyn Nation (Marilyn), Kerry Nation (Kerry), Charles Nation (Charles), Nakia Barnes (Barnes), and Lee Dell Nation (Lee Dell), appeal various aspects of their convictions and sentences. We GRANT the motion by the Government to file a supplemental brief in Case No. 04-30112. Finding no error as to any defendant, we AFFIRM.

Thomas Nation

Thomas was convicted of one count of conspiracy to distribute 50 grams or more of cocaine base and two counts of distribution of five or more grams of cocaine base. He was sentenced to concurrent terms of 151 months in prison on all counts. Thomas challenges the sufficiency of the evidence supporting his conviction, the constitutionality of the district court’s finding of drag quantity in light of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and the sufficiency of the evidence supporting the district court’s sentencing enhancement for possession of a weapon pursuant to U.S.S.G. § 2D1.1(b)(1).

To support a conviction for a drug conspiracy, the Government must prove “1) the existence of an agreement between two or more persons to violate federal narcotics laws; 2) the defendant’s knowledge of the agreement; and 3) the defendant’s voluntary participation in the agreement.” United States v. Gonzales, 79 F.3d 413, 423 (5th Cir.1996). With respect to distribution, a violation of 21 U.S.C. § 841(a)(1), the Government must prove that the defendant knowingly distributed cocaine base. United States v. Gordon, 876 F.2d 1121, 1125 (5th Cir.1989). Our review of the record demonstrates that the evidence was sufficient to support the jury’s verdict. As to the conspiracy count, two witnesses, Nakia Barnes and Aikeyo Lee, testified that on more than one occasion, they each bought crack cocaine from various Nation family members who obtained the crack from Thomas. As to the two possession with intent to distribute counts, Lee testified that he purchased in excess of five grams of crack cocaine on two occasions from Thomas. That testimony was corroborated by the testimony of several law enforcement officials as well as physical evidence. Although Thomas attacks Lee’s credibility and the circumstances of the two drag purchases, it was within the jury’s province to resolve those issues. See United States v. Bermea, 30 F.3d 1539, 1552 (1994).

With respect to Thomas’s Sixth Amendment argument under Blakely, which now applies to the federal Sentencing Guidelines, see United States v. Booker,-U.S.-, 125 S.Ct. 738, 160 [659] L.Ed.2d 621 (2005), our review is limited to the plain error standard. See United States v. Mares, 402 F.3d 511, 520 (5th Cir.2005), petition for cert. filed, No. 04-9517 (U.S. Mar. 31, 2005). Thomas cannot meet the third prong of the plain error test as the record does not indicate that the district court would have given Thomas a lower sentence if it had been operating under an advisory rather than mandatory Sentencing Guidelines. See id. at 521-22. Accordingly, the district court did not commit plain error in sentencing Thomas.

Finally, the evidence at the sentencing hearing supported the § 2D1.1(b)(1) enhancement. The district court may consider any relevant evidence without regard to its admissibility at trial, including uncorroborated hearsay, provided that the information has sufficient indicia of reliability to support its probable accuracy. United States v. Gaytan, 74 F.3d 545, 558 (5th Cir.1996); § 6A1 .3(a). A Presentence Report (PSR) generally bears sufficient indica of reliability to support a district court’s factual findings. United States v. Ayala, 47 F.3d 688, 690 (5th Cir.1995).

The PSR states that Thomas was trying to retrieve a gun when he was arrested and, at the time of his arrest, 1.9 grams of crack cocaine were found in his house. Thomas PSR ¶¶9, 12, 22. In addition, Thomas was convicted of a crack cocaine distribution conspiracy that involved the sale of drugs from his home, making his home the situs of the offense. See United States v. Eastland, 989 F.2d 760, 770 (5th Cir.1993). Based on those facts, it is not clearly improbable that the gun was connected to the drug conspiracy. See United States v. Villanueva, 408 F.3d 193, 196 (5th Cir.2005); United States v. Condren, 18 F.3d 1190, 1199-1200 (5th Cir.1994).

Accordingly, we AFFIRM the judgment of the district court as to Thomas Nation.

Marilyn Nation

Marilyn Nation pleaded guilty to one count of conspiracy to possess with intent to distribute five grams or more of a mixture containing cocaine base. She admitted to making sales of crack totaling 51.83 grams. On appeal, she contends that the evidence at sentencing was not sufficiently reliable to support the drug quantity attributed to her or a § 3B1.1 enhancement based on her status as a leader or organizer.

Agent Harry Deal testified that a co-defendant, Jeanette Thompson, informed him that she had sold crack cocaine on behalf of Marilyn on four or five occasions, usually in the amount of one ounce and was paid by Marilyn for doing so. The Presentence Report employed the lower figure of four ounces in calculating drug quantity. This evidence is sufficient to support the district court’s calculation of drug quantity. See Gaytan, 74 F.3d at 558.

As to the § 3B1.1 enhancement, both Jeanette Thompson and Christopher Warren told Agent Deal that Marilyn and Lee Dell Nation received cocaine powder from Dallas, cooked it, and distributed it to other Nation family members for distribution. As noted, Thompson also told Agent Deal that she sold crack on behalf of Marilyn on four to five occasions. Although Marilyn attacks the credibility of Thompson and that of Aikeyo Lee, another witness, the record as a whole supports the district court’s findings. See Villanueva, 408 F.3d 193, 195 United States v. Turner, 319 F.3d 716, 725 (5th Cir.2003).

Accordingly, we AFFIRM the judgment with respect to Marilyn Nation.

Kerry Nation

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