IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 00-30356
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CALVIN BROWN, JR.; JESSE L. CAGE,
Defendants-Appellants,
- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Louisiana (98-CR-194-3-G) - - - - - - - - - - June 7, 2001 Before DAVIS, WIENER, and STEWART, Circuit Judges.
WIENER, Circuit Judge:*
Defendants-Appellants Calvin Brown, Jr. and Jesse L. Cage
(collectively “Defendants”) challenge their convictions and their
sentences for possession with the intent to distribute and
conspiracy to possess with the intent to distribute cocaine
hydrochloride (“cocaine”). The jury found that each undertook
actions, individually and as part of a conspiracy, to sell cocaine
in the New Orleans area. Both challenge, inter alia, the
sufficiency of the evidence, the district court’s admission of
* Pursuant to 5TH Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH Cir. Rule 47.5.4. evidence gathered via a wiretap, and several of the district
court’s sentencing determinations. For the most part, we find
their contentions to be without merit; however, they do correctly
argue that the period of supervised release to which they were
sentenced violates their constitutional rights. Therefore, we
affirm the judgment of the district court except as to that issue,
which we vacate and remand for modification.
I. Facts and Proceedings
Defendants’ convictions stem from their alleged roles in a
conspiracy to distribute cocaine in New Orleans. The picture that
the government painted at trial, and that the jury apparently
accepted, portrayed Cage as the leader of a conspiracy comprising
(at a minimum) himself, Brown, and another man, Fred Easterling.
A joint investigation by the Drug Enforcement Administration
(“DEA”) and Louisiana State Police uncovered evidence that
Defendants were conspiring with each other and others to sell
cocaine in New Orleans. Federal and state agents obtained a
warrant from a Louisiana state judge authorizing a wiretap to
intercept conversations over a telephone line used by Cage. The
agents recorded many conversations between Cage and Brown that
occurred between May 18 and June 18, 1998. Although drugs and
money were never explicitly mentioned, Defendants did discuss
numbers and debt.
2 Easterling entered into a plea agreement with the government
and testified at trial. He admitted that on approximately four
different occasions, he purchased a quarter kilogram of cocaine
from Cage, paying $5,500 for each quarter-kilogram. In June of
1998, Easterling used the telephone to purchase approximately 1½
kilograms of cocaine from Cage for $29,000. On June 15, Cage
traveled to Easterling’s house in Alabama and picked up the
$29,000, leaving shortly thereafter to pick up the cocaine in
Houston. Agents conducted surveillance of Cage throughout his
journey. In Houston, Cage was observed entering a business
premises owned by co-defendant Jose Diaz,1 then leaving it in
possession of a brown box. Cage was followed to a motel where he
discarded the brown box. Agents recovered the box, and a drug dog
alerted to it. During his return trip from Houston to New Orleans
on June 18, 1998, Cage was stopped for speeding. He was given a
traffic citation and consented to a search of his vehicle. The
police found approximately two kilograms of cocaine in Cage’s
vehicle and arrested him.
Easterling testified that he met Brown on one occasion: After
Easterling received poor quality cocaine from Cage, Brown tested
the substance for them and confirmed that it was in fact “bad.”
Cage then replaced that “bad” cocaine with “good” cocaine.
1 Diaz, Cage’s alleged source of supply, was tried with Defendants but because the jury was not able to reach a verdict as to his guilt or innocence, a mistrial was declared as to him.
3 Evidence was also introduced showing that in October of 1998,
an undercover agent met Brown in a Burger King parking lot to
purchase two ounces of cocaine from him. When Brown approached the
agent’s vehicle, he got out and identified himself to Brown as a
law enforcement officer. Brown fled, discarding approximately two
ounces of cocaine (which police later recovered) before he was
apprehended.
A jury found Brown and Cage guilty of (1) conspiring with each
other and with others to possess with the intent to distribute
cocaine in violation of 21 U.S.C. § 846 and (2) possessing with the
intent to distribute cocaine in violation of 21 U.S.C. § 841.
During sentencing, the district court concluded that Brown had one
prior drug conviction and that Cage had two, and enhanced their
criminal history scores accordingly. The court also increased
Cage’s sentencing range by two points for his role as a
leader/organizer. For sentencing purposes, the district court
found the quantity of cocaine involved to be between two and 3.5
kilograms. Brown received a concurrent 130 month sentence for each
count of conviction and an eight year term of supervised release.
Cage was sentenced to 360 months in prison to be followed by eight
years of supervised release, as well as a $5,000 fine.
II. Analysis
A. Sufficiency of the Evidence
4 Brown and Cage both claim that the evidence adduced at trial
was insufficient to support their convictions. In reviewing
challenges to the sufficiency of the evidence, we ask whether,
after viewing the evidence in the light most favorable to the
jury’s verdict, “any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”2 In
doing so, we resolve all credibility determinations and reasonable
inferences in favor of the jury’s verdict.3
Brown first claims that the government failed to adduce
sufficient evidence at trial to prove that he individually
possessed cocaine with the intent to distribute it in violation of
21 U.S.C. § 841. “To prove possession of a controlled substance
with intent to distribute, the government must prove beyond a
reasonable doubt the defendant’s possession of the illegal
substance, knowledge, and intent to distribute. The necessary
knowledge and intent can be proved by circumstantial evidence.”4
Brown claims only that the government failed to prove the element
of intent.
Brown’s conviction for possession with the intent to
distribute relates to his attempt to sell two ounces of cocaine to
2 Jackson v. Virginia, 443 U.S. 307, 319 (1979). 3 See United States v. Harvard, 103 F.2d 412, 421 (5th Cir. 1997). 4 United States v. Payne, 99 F.3d 1273, 1279 (5th Cir. 1996) (quoting United States v. Rodriguez, 993 F.2d 1170, 1175 (5th Cir. 1993)).
5 an undercover agent in the Burger King parking lot. The officer
who had arranged to meet Brown in the parking lot to purchase
cocaine from him testified that as Brown approached his vehicle,
the officer got out, identified himself, and told Brown that he was
under arrest. Brown fled and, during the ensuing chase, tossed
aside a bag which was later recovered by the police and determined
to contain two ounces of cocaine. Brown argues that this evidence
did not sufficiently establish that he intended to sell drugs to
the officer because it did not show that (1) Brown offered to sell
or deliver drugs to the officer, (2) Brown knew why the officer was
in the Burger King parking lot, and (3) the cocaine Brown allegedly
threw to the ground during the chase was for sale and not for his
personal use. We disagree. A jury could reasonably conclude that
Brown was in the Burger King parking lot and approached the
officer’s car with the intent to sell him cocaine as planned; in
fact, that is the most likely construction of the evidence.
Brown also argues that even if the evidence is sufficient to
allow a jury to infer that he possessed cocaine with the intent to
distribute it, there is insufficient evidence to show that he was
a member of a conspiracy to do so. “To establish a drug conspiracy
[pursuant to 21 U.S.C. § 846], the government must prove: (1) the
existence of an agreement between two or more persons to violate
federal narcotics laws; (2) that the defendant knew of the
agreement; and, (3) that the defendant voluntarily participated in
6 the agreement.”5 “To establish such an agreement, the government
has the burden to prove beyond a reasonable doubt that [the
defendant] had ‘the deliberate, knowing, specific intent to join
the conspiracy.’”6 “The Government is not required to prove the
existence of the conspiracy and the agreement between the
co-conspirators and the defendant by direct evidence, but may
present circumstantial evidence, such as the co-conspirator's
concerted actions, from which the jury can infer that a conspiracy
existed.”7 However, “[i]t is not enough for it merely to establish
a climate of activity that reeks of something foul.”8
Considering the evidence adduced at trial in the light most
favorable to the jury’s verdict, as we must, we find it to be more
than sufficient to support that verdict. The jury heard testimony
identifying Brown as one of the two voices on the wiretap
conversations —— conversations that can reasonably be construed as
showing that Brown conspired with Cage to sell cocaine.
We find meritless Brown’s contention that the government
adduced insufficient evidence to prove that his was one of the two
voices on the wiretap conversations because, according to Brown,
5 United States v. Gallo, 927 F.2d 815, 820 (5th Cir. 1991). 6 United States v. Galvan, 693 F.2d 417, 419 (5th Cir. 1982) (quoting United States v. DeSimone, 660 F.2d 532, 537 (5th Cir.1981)). 7 Gallo, 927 F.2d at 820. 8 United States v. Wieschenberg, 604 F.2d 326, 331-32 (5th Cir. 1979).
7 the identifying agent was not sufficiently familiar with Brown’s
voice and had no special expertise or training in voice
identification. A witness need not possess such expertise or
training to identify a recorded voice as long as the witness is
well familiar with the voice he is identifying.9 Here, the
identifying agent had been in Brown’s presence two or three times
totaling several hours, giving sufficient familiarity.
Viewing the wiretap conversations in the light most favorable
to the jury’s verdict, they clearly establish Brown’s role in the
drug conspiracy. The recordings show that Brown repeatedly engaged
in conversations with his alleged source of supply, Cage, regarding
debts and dropping off checks. Surveillance performed in
conjunction with the wiretap verified that money was placed in
Cage’s mailbox in a manner and in amounts consistent with the drop-
offs discussed between Brown and Cage. For instance, during the
recorded conversations between those two, a number of references
were made to drops at the Georgetown apartments in New Orleans. On
the date of Cage’s arrest, a search executed pursuant to a search
warrant produced $1,150 found in the mailbox;10 prior to that date,
Cage had told Brown that he owed him $1,200. Earlier, Cage and
9 See United States v. Biggins, 551 F.2d 64, 68 (5th Cir. 1977) (pursuant to Fed R. Evid. 901(b)(5), a witness’s familiarity with the voice sought to be identified is sufficient to ensure reliable voice identification). 10 During that same search, packaging materials were found in Cage’s apartment with a cocaine residue.
8 Brown discussed the number “9” during a recorded conversation and,
subsequently, a search incident to a traffic stop of Cage produced
$900 in cash. Viewed in combination with the other evidence
presented at trial, the jury could reasonably conclude that these
recorded discussions contained coded references to drug
transactions. The jury’s verdict is bolstered by Easterling’s
testimony that the quality of cocaine was tested for him by Brown
at Cage’s request and direction.
Finally, Brown argues that the jury had no basis from which to
conclude that he should be held liable for the full extent of the
conspiracy because he was unaware of many of its details, notably,
Cage’s trip to Houston to pick up approximately two kilograms of
cocaine. Brown’s ignorance of Cage’s trip to Houston or any other
specific details of the conspiracy is irrelevant. “The government
does not have to prove that the defendant knew all of the details
of the unlawful enterprise . . . as long as there is evidence from
which the jury could reasonably infer that the defendant knowingly
participated in some manner in the overall objective of the
conspiracy.”11 Clearly, the government presented sufficient
evidence to that effect at trial.
B. Admission of the Wiretap Evidence
Defendants advance two reasons why the district court erred in
11 United States v. Posada-Rios, 158 F.3d 832, 858 (5th Cir. 1998).
9 denying their motion to suppress the wiretap evidence. They first
contend that the affidavits presented in support of the wiretap
failed to satisfy the “necessity” requirement of 18 U.S.C. §
2518(1)(c). We review for clear error a district court’s decision
regarding a motion to suppress recorded conversations on the ground
of alleged deficiencies in affidavits offered to support
authorization of a wiretap.12
18 U.S.C. § 2518(1)(c) requires that wiretaps be allowed only
when the supporting affidavits provide “a full and complete
statement as to whether or not other investigative procedures have
been tried and failed or why they reasonably appear to be unlikely
to succeed if tried or to be too dangerous.”13 To satisfy this
requirement, the applicant must demonstrate that normal
investigative techniques, employing a normal quantity of resources,
have not made a case for prosecution within a reasonable period of
time.14 We make that determination on a flexible, case-by-case
basis: “What the provision envisions is that the showing be tested
in a practical and commonsense fashion.”15
Here, the applications asserted that “[n]ormal investigative
techniques have been tried, have not been successful, and appear
12 United States v. Tomblin, 46 F.3d 1369, 1376 (5th Cir. 1995). 13 18 U.S.C. § 2518(1)(c) (2001). 14 United States v. Krout, 66 F.3d 1420 (5th Cir. 1995). 15 United States v. Hyde, 574 F.2d 856, 867 (5th Cir. 1978).
10 reasonably unlikely to succeed under the circumstances of this
investigation.” The supporting affidavits of the applying officers
asserted that “[e]mployment of normal investigative techniques,
i.e. normal surveillance, confidential informants, has not resulted
in the direct evidence to determine the inner operations of this
operation” and that a wiretap was the only remaining alternative
not yet employed. The affidavits stated that “[n]ormal
investigative techniques have not resulted in the arrest of
individuals within this organization who are willing to testify
against the remaining members of the organization,” that
confidential informants were unwilling to testify, and that
interviews with those informants would be unsuccessful because the
“persons knowledgeable about narcotic transactions or the contents
of conversations regarding illicit transactions are the parties who
are direct participants and targets of this investigation.”
The agents further explained in their affidavits that not only
were confidential informants unwilling to testify but their
information had proven to be unreliable, and, moreover, such
testimony, without corroboration by evidence gathered by wiretap,
would be insufficient for a successful prosecution. They also
stated that it would be impossible for an undercover agent to
infiltrate the organization because Cage was wary of meeting new
persons and there was “no informant in a position to introduce an
undercover agent to the members of the organization.”
These statements do not merely reflect in conclusory fashion
11 that a wiretap was necessary here, as Defendants contend, but
instead explain precisely which techniques had been unsuccessful
and why. In United States v. Krout, we upheld a wiretap
authorization order on facts similar to those present here.
Notably, we stated that:
The affidavits contained detailed accounts of the investigative techniques . . .. Specifically, the affidavits asserted that informants or undercover agents could not infiltrate the conspiracy at high enough levels to obtain sufficient evidence to prosecute managers of the organization. This court has previously affirmed wiretap orders based upon similar affidavits.16 These affidavits amply established an inability to fully develop a case from informants’ knowledge, inability to infiltrate with undercover agents, lack of access to primary targets, the limited value of searches in proving these offenses, and informants’ fear and unwillingness to testify.17
The instant facts fall well within the boundaries established in
Krout. We conclude therefore that the district court did not
clearly err in denying Defendants’ motion to suppress the wiretap
evidence on this ground.
Defendants also contend that the wiretap order violated
Louisiana law, rendered applicable by 18 U.S.C. § 2516(2). It
specifies that when a wiretap order is sought in state court, as is
the case here, the state judge may authorize a wiretap “in
conformity with section 2518 of this chapter and with the
16 Krout, 66 F.3d at 1425 (citing United States v. Guerra-Marez, 928 F.2d 665, 671 (5th Cir. 1991); United States v. Webster, 734 F.2d 1048, 1055 (5th Cir. 1984)). 17 Krout, 66 F.3d at 1425
12 applicable state statute.”18 Defendants contend that the wiretap
was authorized in violation of Louisiana law because there is no
evidence that the authorizing judge examined the confidential
informants, as required by La. R.S. 15:1310(A)(3). Because
Defendants did not raise this issue before the district court,
merely challenging the admission of the wiretap evidence generally
and on other grounds, we review this claim for plain error.19 Under
that standard, we may reverse a district court’s decision only if
we conclude that (1) the district court committed an error, (2)
that was clear and obvious, and (3) that affected a defendant’s
substantial rights.20 Only if these elements are satisfied may we
exercise our discretion to correct the error, and then only if it
“‘seriously affect[s] the fairness, integrity, or public reputation
of judicial proceedings.’”21
“Error is defined as a deviation from a legal rule in the
absence of a valid waiver.”22 We cannot credit the government’s
argument that Defendants’ failure to raise this issue before the
18 United States v. Nelligan, 573 F.2d 251, 254 (5th Cir. 1978) (holding that 28 U.S.C. § 2516 explicitly “provides for state court authorizations of interceptions [to be conducted] in conformity with the applicable state statute”). 19 United States v. Calverley, 37 F.3d 160, 163 (5th Cir. 1994) (en banc); United States v. Buchanon, 72 F.3d 1217 (6th Cir. 1995). 20 United States v. Dupre, 117 F.3d 810, 817 (5th Cir. 1997). 21 Calverley, 37 F.3d at 164 (quoting United States v. Olano, 507 U.S. 725, 732 (1993)). 22 Calverley, 37 F.3d at 162.
13 district court constitutes waiver of the district court’s error;
instead, we perceive this to be an instance of forfeiture.
“Waiver, the intentional relinquishment or abandonment of a known
right is distinguishable from forfeiture, the failure to make the
timely assertion of a right. Whereas the former results in no
error, the latter does not extinguish the error . . . [and] may be
reviewable [under the plain error standard] if it qualifies.”23
Clearly, this is an instance when Defendants did not knowingly
relinquish their claim but merely failed timely to register their
objection.
Under these conditions we must first ask whether the district
court’s denial of Defendants’ motion to suppress the wiretap
evidence was error at all. The Louisiana Supreme Court has
interpreted La. R.S. 15:1310(A)(3) as requiring that information
garnered via the wiretap authorization be suppressed only when (1)
the authorizing judge fails to examine the confidential informants
and (2) the confidential informants’ information is essential to
the requisite probable cause finding.24 Our examination of the
record indicates that it is likely that both prongs are satisfied
here: Not only did the state judge fail to examine the confidential
informants but it appears that their information was essential to
23 Calverley, 37 F.3d 162 (internal quotations and citations omitted). 24 State v. Neisler, 98-1384 (La. 1/16/96) 666 So.2d 1064, 1068-69.
14 the finding of probable cause on which the wiretap authorization
was based. We therefore assume that the district court’s failure
to suppress the wiretap evidence was error.
Our next plain error inquiry is whether this error was
“plain,” that is, whether the error was “‘obvious,’ ‘clear,’ or
‘readily apparent.’”25 Put another way, plain errors “are errors
which [sic] are so conspicuous that ‘the trial judge and prosecutor
were derelict in countenancing [them], even absent the defendant’s
timely assistance in detecting [them].’”26 Defendants have failed
to establish that the instant error satisfies this standard. The
error complained of was essentially a violation of state law, made
applicable by the relevant federal wiretap statute. The error was
not apparent on the face of the wiretap authorization which, to the
contrary, was supported by probable cause and valid under all
federal law excepting the provision that makes the Louisiana
statute applicable. It would be unreasonable to expect a federal
district court (or even a federal prosecutor) to be sufficiently
aware of Louisiana state law to notice this defect on its own.
This is especially true given that Defendants, represented by
Louisiana counsel, not only failed to raise this claim before the
district court but argued strenuously for suppression of the
wiretap evidence solely on the ground that the federal “necessity”
25 Calverley, 37 F.3d at 163 (internal citations omitted). 26 Id. (quoting United States v. Frady, 456 U.S. 152, 163 (1982)).
15 requirement had not been met. This technical, state-law defect in
the wiretap evidence was anything but “obvious” or “readily
apparent.”27
C. Sentencing
Defendants raise several challenges, both individual and
common, to the district court’s sentencing determinations. We
examine “the district court’s interpretation or application of the
sentencing guidelines de novo and its findings [of fact] . . . for
clear error.”28 For sentencing purposes, the district court need
only determine its factual findings “by a preponderance of the
relevant and sufficiently reliable evidence.”29
1. Quantity of cocaine involved
Defendants, for different reasons, contest the district
court’s finding that the quantity of drugs attributable to them for
sentencing purposes is between two and 3.5 kilograms. United
States Sentencing Guidelines (“USSG”) § 1B1.3(a)(1)-(2) provides
that a defendant’s sentence is to be determined on the basis of all
27 We note that even if we were to conclude that the instant error was “plain” and, moreover, that it affected Defendants’ substantial rights, we would decline to exercise our discretion to reverse the district court’s refusal to suppress the wiretap evidence because this error is not one that calls into doubt the “‘fairness, integrity, or public reputation of judicial proceedings.’” Calverley, 37 F.2d at 64 (quoting United States v. Atkinson, 297 U.S. 157, 160 (1936)). 28 United States v. Huerta, 182 F.3d 361, 364 (5th Cir. 1999). 29 United States v. Huskey, 137 F.3d 283, 291 (5th Cir. 1998).
16 criminal acts he participated in during the offense of conviction
as well as all criminal acts that were part of the same course of
conduct as the offense of conviction. Defendants were convicted of
individually possessing with the intent to distribute and
conspiracy to possess with the intent to distribute cocaine over an
extended period of time, encompassing several distinct
transactions. The district court made its determinations of drug
quantity by adopting the presentencing report (“PSR”), finding that
the PSR was well-supported by the evidence adduced at trial.
The PSR stated that it was accurate to hold Cage responsible
for between two and 3.5 kilograms by adding (1) the two kilograms
he was found with on his return trip from Houston, (2) “the ½
kilogram that he obtained from an unindicted coconspirator and
[(3)] the fourteen ounces [392 grams] that he sold to Calvin Brown
during the course of the conspiracy.” Cage objects to this
finding, contending that the district court clearly erred in
finding that the packages found in his possession when he was
stopped on his return from Houston contained two kilograms of
cocaine. He argues that the district court had no basis for that
finding because only one of the packages was tested for cocaine and
that neither was weighed. Therefore, he contends, the record at
best supports an inference that the packages amounted to
approximately 1½ kilograms because that was the amount Easterling,
the apparent prospective purchaser of these packages of cocaine,
testified that he was buying.
17 We note first that the district court was well within its
discretion in crediting the testimony of the forensic chemist from
the Louisiana Police Crime Lab that both packages had been tested
(positively) for cocaine. Cage correctly points out, however, that
there is no proof in the record that the packages were ever
weighed. Although Cage argues on appeal that he properly objected
to the district court’s adoption of the PSR’s finding of the weight
of those packages,30 our conclusion need not turn on the efficacy
of Cage’s purported objection: His claim fails on the merits as
well. The record contains sufficient evidence to support a
conclusion by the district court that the packages contained at
least 1.5 kilograms, as Cage concedes. In conjunction with the
court’s other undisputed findings, the record clearly contains
sufficient evidence to support the finding that Cage should be held
responsible for more than two kilograms of cocaine.
30 Cage did argue before the district court, during sentencing, that the government had not presented evidence that the packages in question had been weighed. However, he did not do so in the context of objecting to the PSR’s finding regarding the quantity of drugs but rather in the course of arguing for a sentencing reduction for an acceptance of responsibility. Specifically, he argued that he was willing to enter into a plea bargain for the quantity of drugs that he was charged with and ultimately convicted for being responsible for —— between two and 3.5 kilograms —— but was unwilling to accept the government’s plea offer because it required him to accept responsibility for five kilograms of cocaine. In the course of his explanation of why accepting responsibility for that larger amount was unacceptable to him, he mentioned in passing that even though the government had not shown at trial that he should be responsible for even two kilograms, he had been willing to acknowledge responsibility for two to 3.5 kilograms, implying the accuracy of that range.
18 The district court found that Cage was responsible for at
least 0.9 kilograms of additional cocaine. This finding was
adopted by the district from the PSR, specifically its statement
that Cage had obtained one-half a kilogram from an unindicted
coconspirator and had sold at least 14 ounces (392 grams) to Brown.
“The PSR generally bears sufficient indicia of reliability to be
considered as evidence by the district court in resolving disputed
facts. A district court may thus adopt facts contained in the PSR
without further inquiry if the facts have an adequate evidentiary
basis and the defendant does not present rebuttal evidence.”31
Because Cage presents no such rebuttal evidence regarding the
attribution of the one-half kilogram that he is said to have
obtained from the unindicted coconspirator or the 392 grams that he
allegedly sold to Brown, the district court was free to adopt the
PSR’s finding.
Accordingly, we find that the district court did not clearly
err in adopting the PSR’s findings that Cage was responsible for
more than two kilograms of cocaine. In combination with the
finding that Cage possessed approximately 1.5 kilograms when his
vehicle was stopped, the finding that he was responsible for an
additional 0.9 kilograms clearly supports the district court’s
determination that Cage was responsible for more than two kilograms
of cocaine.
31 United States v. Brown, 54 F.3d 234, 241 (5th Cir. 1995) (citations omitted).
19 As for Brown, he too contests the district court’s attribution
to him of more than two kilograms of cocaine. The court predicated
its findings on the PSR’s conclusion that Brown should be found
responsible for at least two kilograms of cocaine, based on (1) the
approximately 1.5 kilograms32 that Cage obtained in Houston and was
arrested with, (2) the 14 ounces (392 grams) that Brown purchased
from Cage during the conspiracy, and (3) the two ounces (56 grams)
discarded by Brown while he was being chased immediately prior to
his arrest.
For sentencing purposes, a defendant convicted of being part
of a drug conspiracy is responsible not only “for the drugs with
which [he] was directly involved but also those that can be
attributable to him as part of his ‘relevant conduct’ under § 1B1.3
of the Sentencing Guidelines.”33 “Relevant conduct” includes
“reasonably foreseen acts and omissions of others in furtherance of
the jointly undertaken criminal activity.”34
Brown first argues that the district court committed clear
32 Brown does not challenge the weight of the packages of cocaine that Cage was found to have in his possession. As we discussed regarding the quantity of drugs for which Cage was held responsible, for sentencing purposes, the district court found that those packages contained two kilograms of cocaine. Because the issue is slightly in doubt but is ultimately immaterial to our inquiry, however, we will assume that the packages of cocaine weighed only 1.5 kilograms of cocaine, the amount that Cage concedes they contained. 33 United States v. Gallardo-Trapero, 185 F.3d 307, 325 (5th Cir. 1999). 34 USSG § 1B1.3.
20 error in finding that it was foreseeable to him that Cage would
obtain 1.6 kilograms of cocaine from his source in Houston. Brown
points out that (1) the agent who testified regarding the meaning
of the wiretap conversations stated that he did not think Brown
knew that Cage was going to Houston to obtain cocaine from his
supplier, and (2) the wiretap evidence produced by the government
did not show that Brown knew Cage was going to Houston to obtain
cocaine. This argument misapprehends the applicable law. Although
it is unlikely that Brown knew all the details of Cage’s plans or
the quantities of cocaine Cage intended to procure from his
sources, the district court was only required to find that Brown
was aware that Cage undertook other actions in furtherance of the
conspiracy, especially plans and actions to obtain cocaine from his
sources. Such a finding is well supported by the evidence.
Brown next challenges the sentencing court’s finding that he
had purchased 14 ounces of cocaine from Cage, a finding based on
police analysis of the wiretap conversations. Again, we disagree.
The district court was free to infer, as did the jury, that the
numbers discussed during the recorded conversations referred to
money and drugs. Moreover, Brown’s contentions to the contrary
notwithstanding, the wiretap evidence reasonably supports the PSR’s
conclusion that Brown purchased at least 14 ounces of cocaine from
Cage because the district court was free to credit the agent’s
testimony to that effect, including his interpretation of the
“coded” recorded conversation. As with Cage, in combination these
21 separate findings support the district court’s determination that
Brown was responsible for more than two kilograms of cocaine.
The district court’s finding of drug quantities for which
Defendants should be held responsible is reasonably supported by
the record evidence or, in some instances, by unchallenged
statements of the PSR. We are satisfied not only that the district
court did not commit clear error in attributing between two and 3.5
kilograms of cocaine to both Brown and Cage, but that the court
affirmatively reached the correct results.
2. Defendants’ Apprendi Claims
We review “the defendants’ challenges to their sentences for
plain error in light of their failure to raise the objections
below.”35
Defendants argue that, in two respects the district court’s
determination of the quantity of cocaine involved without
submitting the issue to the jury, resulted in their being sentenced
in violation of their constitutional rights as clarified by the
Supreme Court in Apprendi v. New Jersey.36 They first challenge
their respective terms of imprisonment, although in doing so, they
35 United States v. Meshack, 225 F.3d 556, 575 (5th Cir. 2000), cert. denied, 121 S.Ct. 834 (2001), petition for reh’g, 244 F.3d 367 (citing Johnson v. United States, 520 U.S. 461, 467 (1997) (reviewing for plain error even though the case on which the defendants relied had not been decided at the time of trial)). 36 530 U.S. 466 (2000).
22 expressly concede that this argument is barred by our recent
precedent applying Apprendi to similar cases.37 As we are bound by
this precedent, we are precluded from considering these claims.
We do, however, find merit in Brown’s claim that the district
court committed plain error by sentencing him to eight years of
supervised release as specified in 21 U.S.C. § 841(b)(1)(B) (the
penalty provision corresponding to § 841(a)(1) requiring a showing
that the defendant’s drug offense involved between at least 500
grams of cocaine). Because Apprendi requires that Brown be
sentenced under § 841(b)(1)(C) (the penalty provision corresponding
to § 841(a)(1) which does not require the showing of a quantity of
drugs) and that provision, as interpreted by our decision in United
States v. Meshack,38 allows a maximum of six years’ supervised
release irrespective of drug amount —— in light of the fact that he
was convicted of a prior offense39 —— Brown’s eight-year term of
supervised release cannot stand. Therefore, because Brown was
37 See, e.g., United States v. Doggett, 230 F.3d 160 (5th Cir. 2000); United States v. Keith, 230 F.3d 784 (5th Cir. 2000). 38 225 F.3d 556 (5th Cir. 2000). 39 Meshack, 225 F.3d at 578. There, we reconciled the apparent discrepancy between the requirement of 21 U.S.C. § 841(b)(1)(C) that the period of supervised release be “at least 6 years” (emphasis added) and the requirement of the applicable sentencing guideline, 18 U.S.C. § 3583(b)(2), that the period of supervised release be “no more than five years” (emphasis added) permitting a defendant convicted pursuant to § 841(b)(1)(C) to be sentenced to no more than six years of supervised release. 225 F.3d at 578 (citing United States v. Kelly, 974 F.2d 22, 24-25 (5th Cir. 1992)).
23 sentenced to an eight-year term of supervised release, the district
court plainly erred.40
Although Cage did not expressly raise a similar objection, he
did voice a general challenge that his term of imprisonment
violated Apprendi. It is at least arguable that this challenge
should be construed as encompassing any and all Apprendi errors
committed by the district court in the course of sentencing Cage.
Moreover, even if the manner in which Cage presented this challenge
was too general to have raised the specific issue of Apprendi’s
effect on his term of supervised release, “we have discretion to
suspend the Federal Rules of Appellate Procedure ‘for good cause
shown.’”41 On those occasions in which we are concerned that it
would be “anomalous” to correct an error preserved as to only one
defendant “when all defendants suffer from the same error, we
consider the argument[] to be adopted [by all]. This adoption does
not prejudice the government which had the opportunity to fully
brief all issues in response to the various contentions of the
defendants.”42 We find this to be an appropriate instance in which
to exercise that discretion.
As with Brown, Apprendi requires us to consider Cage’s
conviction as occurring pursuant to § 841(b)(1)(C) which, under our
40 Meshack, 225 F.3d at 578. 41 United Sates v. Gray, 626 F.2d 494, 497 (5th Cir. 1980). 42 Id. (citations omitted).
24 interpretation of Apprendi in United States v. Meshack,43 here
allows for a maximum period of supervised release of six years. We
are therefore constrained to conclude, as we did with Brown, that
the district court plainly erred in sentencing Cage to eight years
of supervised release. We thus vacate the terms of supervised
release of both Defendants and remand to the district court so that
it may modify this aspect of their sentences in accordance with our
decisions in Meshack and United States v. Kelly,44 to fall somewhere
from the minimum term of five years specified in 18 U.S.C.
§ 3583(b)(2) (the applicable sentencing guideline provisions for
class B felonies, the offense class under which a violation of §
841(b)(1)(C) falls) to the maximum of six years specified in §
841(b)(1)(C).
3. Cage’s Role as a Leader/Organizer
Cage asserts that the district court erred in assessing him a
two level increase for his role as a leader/organizer pursuant to
USSG § 3B1.1. He essentially argues that the record evidence,
which he insists demonstrates only that he purchased and re-sold
cocaine, is insufficient to support the district court’s
determination that he was a leader/organizer and the resulting
imposition of a two level increase of his offense level. Such an
43 225 F.3d 556 (5th Cir. 2000). 44 974 F.2d 22 (5th Cir. 1992).
25 adjustment “is proper only if [Cage] was ‘the organizer or leader
of at least one other participant in the crime and if he asserted
control or influence over at least that one participant.’”45 We
have previously observed that
[t]he commentary to sentencing guideline section 3B1.1 suggests that the court consider the following factors in making the organizer, leader, manager, supervisor determination: (1) the exercise of decision-making authority; (2) the nature of participation in the commission of the offense; (3) the recruitment of accomplices; (4) the claimed right to a larger share of the fruits of the crime; (5) the degree of participation in planning or organizing the offense; (6) the nature and scope of the illegal activity; and (7) the degree of control and authority exercised over others.46
With these factors in mind, we conclude that the district court did
not clearly err in determining that the evidence adduced at trial
demonstrated that Cage was a leader/organizer within the meaning of
USSG § 3B1.1. The wiretap recordings show that Brown reported his
progress to Cage on a number of occasions and that Cage instructed
Brown as to amounts owed and the actions he was to take in
furtherance of the drug conspiracy. Moreover, when Brown confirmed
to Cage and Easterling the poor quality of some cocaine, he did so
at Cage’s direction. The district court was on firm ground in its
assessment of Cage’s role in the conspiracy.
45 United States v. Perkins, 105 F.3d 976, 980 (5th Cir. 1997) (quoting United States v. Jobe, 101 F.3d 1046, 1065 (5th Cir. 1996)). 46 United States v. Barretto, 871 F.2d 511, 512 (5th Cir. 1989) (quoting Application Note 3, S 3B1.1).
26 C. Cage’s Ineffective Assistance of Counsel Claim
Cage contends, for the first time on appeal, that he was
prejudiced by the ineffective assistance provided by his counsel,
in violation of his Sixth Amendment rights.47 “The general rule in
this circuit is that a claim of ineffective assistance of counsel
cannot be resolved on direct appeal when the claim has not been
raised before the district court since no opportunity existed to
develop the record on the merits of the allegations.”48 We have
“undertaken to resolve claims of inadequate representation on
direct appeal only in rare cases where the record allowed us to
evaluate fairly the merits of the claim.”49 Because Cage did not
raise this issue before the district court and the record is not
sufficiently developed to allow us to review his claim, we decline
to do so. We therefore dismiss his claim without prejudice to his
right to raise the issue in an application for collateral relief
under 28 U.S.C. § 2255.50
III. Conclusion
47 See Strickland v. Washington, 466 U.S. 668 (1984). 48 United States v. Higdon, 832 F.2d 312, 313-14 (5th Cir. 1987); see also United States v. Glinsey, 209 F.3d 286, 392 (5th Cir. 2000). 49 Higdon, 832 F.2d at 314. 50 Id. at 314 (citing United States v. McClure, 786 F.2d 1286, 1291 (5th Cir. 1986); United States v. Rodriguez, 582 1015, 1016 (5th Cir. 1978)).
27 Defendants challenge their drug convictions on numerous
grounds. We hold these challenges to be without merit, concluding
that there is sufficient evidence to support Defendants’
convictions. We also hold that the district court did not clearly
err in (1) refusing to suppress the wiretap evidence, (2)
determining the quantity of drugs for which each defendant was
responsible, and (3) assessing Cage a two level increase for his
role as a leader/organizer. We do find merit, however, in
Defendants’ claims that they were sentenced in violation of their
constitutional rights as clarified in Apprendi, but only as far as
supervised release is concerned. We therefore vacate the
supervised release portion of the sentences and remand to the
district court to modify Defendants’ sentences accordingly.
Finally, we agree with the government that it would be
inappropriate for us to review Cage’s ineffective assistance of
counsel claim at this juncture, so we dismiss that claim without
prejudice. In sum, we affirm Defendants’ convictions, and we
affirm their sentences in all respects other than their terms of
supervised release, which we vacate and remand to the district
court for modification consistent with this opinion and for
resentencing to supervised release as thus modified.
AFFIRMED in part; VACATED and REMANDED in part.