United States v. Barnes

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 6, 2005
• Docket: 04-30013
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT July 6, 2005

Charles R. Fulbruge III Clerk No. 04-30013 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

NAKIA BARNES, also known as 2-2,

Defendant-Appellant.

* * * * * Consolidated with No. 04-30014 * * * * *

CHARLES R. NATION, also known as Andre,

* * * * * Consolidated with No. 04-30110 * * * * *

MARY L. NATION, also known as Marilyn, also known as Maralyn,

Defendant-Appellant. No. 04-30013 c/w No. 04-30014 & No. 04-30110 & No. 04-30111 No. 04-30112 & No. 04-30232 -2-

* * * * * Consolidated with No. 04-30111 * * * * *

LEE DELL NATION, also known as Pop, also known as Doom,

* * * * * Consolidated with No. 04-30112 * * * * *

KERRY NATION, also known as K-Mac,

* * * * * Consolidated with No. 04-30232 * * * * *

THOMAS EARL NATION, also known as Touche,

-------------------- Appeals from the United States District Court for the Western District of Louisiana USDC No. 02-CR-30043-9 -------------------- No. 04-30013 c/w No. 04-30014 & No. 04-30110 & No. 04-30111 No. 04-30112 & No. 04-30232 -3-

Before REAVLEY, JOLLY, and HIGGINBOTHAM, Circuit Judges.

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 drug quantity

in light of Blakely v. Washington, 124 S. Ct. 2531 (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

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 04-30013 c/w No. 04-30014 & No. 04-30110 & No. 04-30111 No. 04-30112 & No. 04-30232 -4-

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

drug 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, 125 S. Ct. 738 (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 No. 04-30013 c/w No. 04-30014 & No. 04-30110 & No. 04-30111 No. 04-30112 & No. 04-30232 -5-

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, No. 03-20812, 2005 WL

958221 at *8 (5th Cir. Apr. 27, 2005); United States v. Condren, 18

F.3d 1190, 1199-1200 (5th Cir. 1994). No. 04-30013 c/w No. 04-30014 & No. 04-30110 & No. 04-30111 No. 04-30112 & No. 04-30232 -6-

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 No. 04-30013 c/w No. 04-30014 & No. 04-30110 & No. 04-30111 No. 04-30112 & No. 04-30232 -7-

Villanueva, 2005 WL 958221 at *8; United State v. Turner, 319 F.3d

716, 725 (5th Cir. 2003).

Accordingly, we AFFIRM the judgment with respect to Marilyn

Nation.

Kerry Nation

Kerry Nation pleaded guilty to one count of a bill of

information charging him with conspiracy to possess with intent to

distribute five grams or more of cocaine base. He appeals the

district court’s denial of his motion to withdraw his guilty plea

on the basis that his counsel misinformed him regarding the

applicability of the § 4B1.1 career offender enhancement.

Based on the record before us, we cannot conclude that the

district court abused its discretion in denying the motion to

withdraw. See United States v. Powell, 354 F.3d 362, 370 (5th Cir.

2003). We also decline to address his ineffective assistance of

counsel claim. See United States v. Higdon, 832 F.2d 312, 314 (5th

Cir. 1987). However, we note that our decision is based on the

fact that no evidence was adduced at the hearing on the motion to

withdraw. Counsel made unsworn statements which suggest that Kerry

Nation’s guilty plea was the result of erroneous advice from his

attorney.

As to Kerry’s contention that his sentence should be reversed

in light of Booker, he did not preserve the error, limiting our

review to plain error. See Mares, 402 F.3d at 520. For the same

reasons set forth with respect to Thomas Nation, Kerry fails to

meet the third prong of the plain error test. We AFFIRM the No. 04-30013 c/w No. 04-30014 & No. 04-30110 & No. 04-30111 No. 04-30112 & No. 04-30232 -8-

judgment of the district court, without prejudice to Kerry’s right

to file a motion pursuant to 28 U.S.C. § 2255 alleging ineffective

assistance of counsel.

Charles Nation

Charles Nation pleaded guilty to a one-count bill of

information charging him with conspiracy to possess with intent to

distribute five or more grams of cocaine base. He challenges his

sentence pursuant to Blakely. As Charles admitted the drug

quantity during his guilty-plea hearing, and as the prior

convictions used to enhance his sentence do not fall within

Booker’s scope, there was no Sixth Amendment violation. 125 S. Ct.

at 756. Further, the district court’s imposition of a sentence

under a mandatory Guidelines regime did not constitute plain error,

as there is no indication in the record that the district court

would have imposed a lower sentence if the Guidelines had been

advisory. See United States v. Valenzuela-Quevedo, No. 03-41754,

2005 WL 941353 at *4 (5th Cir. Apr. 25, 2005). Accordingly, we

AFFIRM the judgment with respect to Charles Nation.

Nakia Barnes

Nakia Barnes pleaded guilty to one count of distribution of

five or more grams of crack cocaine. The district court granted a

§ 5K1.1 motion for downward departure based on Barnes’ substantial

assistance. The court sentenced Barnes to 67 months of

imprisonment, below the sentencing range of 121 to 151 months. It

is not disputed that the sentencing range should have been 108 to

135 months, because the district court did not include in its No. 04-30013 c/w No. 04-30014 & No. 04-30110 & No. 04-30111 No. 04-30112 & No. 04-30232 -9-

calculation an additional one-point reduction for acceptance of

responsibility that it had previously awarded.

As Barnes did not object to the incorrectly-calculated range,

we review for plain error. Barnes cannot demonstrate that the

error affected his substantial rights because there is no

indication that the error must have affected the outcome of the

proceedings. See Mares, 402 F.3d at 521. Nothing in the record

suggests a reasonable probability that the district court would

have departed further from the correct guideline range. See id. at

521-22. Barnes’ reliance on United States v. Waskom, 179 F.3d 303

(5th Cir. 1999), a harmless error case, and United States v.

Rayford, No. 03-40945 (5th Cir. Jan. 14, 2004), an unpublished and

factually distinguishable opinion, is misplaced. Therefore, we

AFFIRM the judgment with respect to Nakia Barnes.

Lee Dell Nation

Lee Dell Nation pleaded guilty to conspiracy to possess with

intent to distribute five grams or more of cocaine base. He raises

several issues on appeal. The first seven challenge his sentence

pursuant to Blakely. Alternatively, he asserts that the evidence

did not support a § 3B1.1 enhancement based on his status as a

leader or organizer or a § 2D1.1(b)(1) weapons enhancement. As to

Lee Dell’s Blakely challenges, we again review these unpreserved

claims for plain error and, for the same reasons we have

articulated with respect to Thomas and Kerry Nation, Lee Dell fails

to satisfy the third prong of the plain error test. No. 04-30013 c/w No. 04-30014 & No. 04-30110 & No. 04-30111 No. 04-30112 & No. 04-30232 -10-

We further conclude that the evidence supported the

enhancements. As to the § 3B1.1 enhancement, the same evidence

supporting the enhancement as to Marilyn Nation supports the

enhancement as to Lee Dell Nation. With respect to the

§ 2D1.1(b)(1) enhancement, the PSR determined that a gun was found

in Lee Dell’s truck along with $16,000 in cash and 84 grams of

crack cocaine. Agent Deal also testified that weapons were found

in Lee Dell’s home. This evidence amply supports the enhancement.

See Condren, 18 F.3d at 1199-1200.

We reject Lee Dell’s constitutional challenges to the

disparate treatment of crack and powder cocaine. See United States

v. Wilson, 77 F.3d 105, 112 (5th Cir. 1996); United States v.

Galloway, 951 F.2d 64, 66 (5th Cir. 1992).

For the foregoing reasons, we AFFIRM the judgment of the

district court as to each appellant.

AFFIRMED.