UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 00-30208 __________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JALTHEUS COOPER, also known as Tweet Cooper,
Defendant-Appellant,
No. 00-30209 __________________
EDWARD FAULK, also known as Lite Bread Faulk,
Defendant-Appellant, __________________
No. 00-30210 __________________ UNITED STATES OF AMERICA,
ERNEST GREEN, also known as Serv-it Green,
No. 00-30450 __________________
JAMES ALEXANDER, also known as Coco Alexander,
Defendant-Appellant.
______________________________________________
Appeals from the United States District Court for the Eastern District of Louisiana ______________________________________________
November 26, 2001
Before KING, Chief Judge, and DUHÉ and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:
This direct criminal appeal involves four appellants who pleaded guilty to distribution of an
unspecified quantity of hero in and conspiracy to possess with intent to distribute an unspecified
2 quantity of heroin in violation of 21 U.S.C. §§ 841(a)(1) & 846. One appellant, Edward Faulk, also
pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2). The appellants raise various sentencing errors. We conclude that the district court
erroneously enhanced Edward Faulk’s sentence for possession of a firearm under U.S.S.G. §
2D1.1(b)(1) and committed plain error as to Faulk’s term of supervised release. Thus, we VACATE
and REMAND Faulk’s sentence. We AFFIRM the sentences of Jaltheus Cooper, Ernest Green, and
James Alexander.
I. BACKGROUND
This consolidated appeal arises from heroin trafficking that occurred in the St. Thomas
housing project in New Orleans. Appellants Jaltheus Cooper, Edward Faulk, Ernest Green, and
James Alexander, along with codefendant Jacqueline Thompson (not party to this appeal), were
charged in a five-count indictment with distribution of unspecified quantities of heroin in violation of
21 U.S.C. § 841(a)(1) and with conspiracy to possess with intent to distribute an unspecified quantity
of heroin in violation of 21 U.S.C. §§ 841 (a)(1) and 846. In addition, Faulk was charged with
possession of a firearm by a felon.
Cooper, Faulk, and Green, as well as Thompson, pleaded guilty and agreed to cooperate with
the government in the case against Alexander. After his codefendants agreed to plead guilty,
Alexander changed his plea to guilty on the day of his scheduled trial. Cooper, Faulk, and Green
agreed to a factual basis which contained the following information. Thompson distributed 2.5 grams
of heroin to an undercover agent and a cooperating witness. Green similarly distributed 4.2 grams.
Faulk and Cooper distributed 6.9 grams to an undercover agent and a cooperating witness. Faulk
possessed a firearm while previously having been convicted of a felony. The firearm was seized from
3 a vehicle occupied by Faulk, and Faulk personally placed it inside a motor vehicle. Cooper, Faulk,
and Green also agreed that they conspired with each other and Thompson "to possess with the intent
to distribute not more than one (1) kilogram of heroin." Alexander agreed in a separate factual basis
that he distributed 4.2 grams of heroin t o an undercover cooperating witness. Alexander further
agreed to the conspiracy to distribute "a quantity of heroin;" but he disputed the assertion that the
amount of heroin involved was at least one kilogram.
The government submitted a notice with an accompanying affidavit from the case agent to
establish that the quantity of heroin attributable to each of the co-conspirators was at least one
kilogram over the course of the conspiracy. The presentence reports (PSR’s) for each defendant
calculated the base offense level as 32 based on one kilogram of heroin attributable to the defendants.
One kilogram is the minimum amount necessary for a base offense level of 32 under U.S.S.G.
§ 2D1.1(c)(4).
Prior to the sentencing hearing for Cooper, Faulk, and Green on February 16, 2000, all
defendants joined in objecting to the PSR's attributing one kilogram of heroin to them. The district
court conducted an evidentiary hearing for the purpose of determining the drug quantity. ATF Agent
Michael Eberhardt testified at the hearing, further elaborating on his affidavit.
Eberhardt testified that the investigation of this matter was conducted by agents and officers
of the Bureau of Alcohol, Tobacco, and Firearms, and the New Orleans Police Department over the
course of 18 to 24 months beginning in March 1997, and that the quantity of heroin involved in the
conspiracy was "more than 850 grams." He further testified that his investigation began when a
reliable confidential informant identified Cooper, Faulk, Green, Alexander, and Thompson as
individuals distributing heroin in the St. Thomas housing project. Eberhardt determined the total
4 amount of heroin involved in the conspiracy by adding various quantities discovered from source
information to estimated quantities from personal observation of heroin transactions.
Eberhardt first learned that in November 1996 the Jefferson Parish Sheriff's Office seized from
the mail a package sent from New York addressed to Claude Robinson in Marrero, Louisiana. The
package contained approximately 59 "bundles" of heroin. Robinson told Eberhardt that the package
had been arranged for and belonged to Faulk and Cooper. He further said that he had received a total
of nine similar packages of heroin. Eberhardt used a conservative estimate of 0.5 grams of heroin
contained in each bundle. The total amount of heroin received by Robinson on behalf of Faulk and
Cooper was estimated to be 265.5 grams. Eberhardt testified that the seized heroin was unique in
the way it was packaged in wax papers with the number "911" or the word "Amazing" stamped in
red on the wax paper.
During the course of the investigation Eberhardt also interviewed a person named Darryl
Fisher, who identified himself as a "runner" for Green, meaning that he made hand-to-hand sales of
heroin for Green. According to Fisher, he distributed approximately one bundle of heroin per day
for ten months, or a total of 140 grams of heroin. Fisher also related to Eberhardt that Cooper,
Faulk, Green, and Alexander were distributing heroin in St. Thomas.
Codefendant Thompson told Eberhardt that she sold heroin for Cooper and Faulk for
approximately ten months. She also had knowledge that Green and Alexander were selling for
Cooper and Faulk. Thompson sold approximately two bundles per day for ten months, or a total of
approximately 300 grams of heroin.
Another source of information was a New York heroin supplier named Victor Castro. Castro
told Eberhardt that on two separate occasions Cooper and Faulk had met with him in New York and
5 purchased a total of $20,000 worth of heroin. Using the street value of the heroin in New Orleans,
which is conservative compared to heroin in New York, Eberhardt estimated that Cooper and Faulk
had purchased 40 grams of heroin from Castro.
Eberhardt further discovered that the U.S. Postal Service had seized a package originating
from a "target return address" in New York containing 65 bundles of heroin. This package was sent
to Lionel Greer, who Eberhardt knew to be involved with the conspiracy. During an interview with
Eberhardt, Greer admitted that the heroin was for people in the St. Thomas project, but he did not
give any names. The heroin was packaged in wax paper with "911" or "Amazing" stamped on it,
which Eberhardt testified was unique to the Cooper and Faulk group. The total amount of heroin was
approximately 32.5 grams.
The last specific source of information was Warren Woody, who Eberhardt had determined
was Cooper and Faulk's main supplier in New York. Woody was arrested by New York police in
late 1997 while in possession of 200 bundles of heroin, each packaged in wax paper and stamped with
"911" or "Amazing." Woody also possessed a bus ticket to New Orleans at the time of his arrest, and
Woody's girlfriend told police that he had planned to meet friends in New Orleans. The amount of
heroin attributed to the Cooper and Faulk organization from Woody was estimated to be 100 grams.
The total amount of heroin derived from Robinson, Fisher, Castro, Cooper, and Woody was 878
grams.
Eberhardt also testified that beginning in March 1997, he spent approximately 700 hours
doing surveillance at the St. Thomas housing project and participating in traffic stops. He personally
witnessed numerous heroin transactions involving Green. He also stated that during the traffic stops
people would be found with small amounts of heroin, such as two or three bundles, that they had just
6 purchased. Based on the 878 grams of heroin identified from other sources and the quantities from
his own personal observation during surveillance and traffic stops, Eberhardt testified that one
kilogram was a conservative estimate of the amount of heroin involved in the conspiracy from
November 1996 through May 1999.
Based on Eberhardt's affidavit and testimony and the factual basis stating that "not more than
one (1) kilogram" of heroin was involved, the district court overruled the defendants' objections to
the amount of heroin. The district court found that the evidence showed enough activity in the
conspiracy that the defendants could have reasonably foreseen the amount of drugs distributed to be
at least one kilogram.
The government filed a motion for downward departure with respect to Cooper, Faulk, and
Green based on their substantial assistance, recommending a downward departure of ten percent of
their respective sentences. The district court granted the motion. The court sentenced: (1) Cooper
to 151 months and 5 years supervised release; (2) Faulk to 211 months and 5 years supervised
release; (3) Green to 136 months and 5 years supervised release; and (4) Alexander to 140 months
and 4 years supervised release.
Cooper, Faulk, and Green each filed a timely notice of appeal. Alexander filed a notice of
appeal that was lat er deemed untimely. Ultimately, on remand, the district court found excusable
neglect, and thus we now have jurisdiction over his appeal.
Meanwhile, after Faulk had been sentenced, the U.S. Probation Office issued a revised PSR,
deleting two criminal history points that had been erroneously attributed to Faulk, which resulted in
a lower guideline range. Faulk then filed a motion to enforce the downward departure
recommendation that the government had made with respect to his first sentencing so that he would
7 again receive a ten percent downward departure from the revised guideline range for his substantial
assistance. The government objected, and the district court imposed the original sentence of 211
months at resentencing. Faulk timely filed a supplemental notice of appeal to include the district
court's denial of his motion to enforce departure.
II. ANALYSIS
A. Amount of Heroin Attributable to the Appellants
All four appellants argue that the district court erred in finding that one kilogram of heroin
was involved in the conspiracy. Under the sentencing guidelines, the base o ffense level for a
defendant convicted of a drug offense is determined based on the amount of drugs involved. See
U.S.S.G. § 2D1.1(a)(3). The quantity includes the drugs for which the defendant is directly
responsible and the drugs that can be attributed to him in a conspiracy as relevant conduct. See §
1B1.3(a)(1). A district court's factual determination of a defendant's relevant conduct for sentencing
purposes is reviewed for clear error. See United States v. Schorovsky, 202 F.3d 727, 729 (5th Cir.
2000); United States v. Puig-Infante, 19 F.3d 929, 942 (5th Cir. 1994). A factual finding is clearly
erroneous "'when although there is evidence to support it, the reviewing court on the entire evidence
is left with the definite and firm conviction that a mistake has been committed.'" United States v. Hill,
42 F.3d 914, 918 (5th Cir. 1995)(citation omitted). A factual finding is not clearly erroneous if it is
plausible in light of the record read as a whole. Puig-Infante, 19 F.3d at 943.
1. Cooper
Cooper's only argument on appeal is that the district court was clearly erroneous in its finding
that one kilogram of heroin was involved in the conspiracy. Cooper concedes that Eberhardt's
testimony was well-founded as to 745.5 grams of heroin. He asserts that the testimony was dubious
8 and/or speculative as to the remaining amounts up to one kilogram. Cooper contests the 32.5 grams
that were seized from the package addressed to Lionel Greer, arguing that although Greer said the
heroin was intended for the St. Thomas housing project, he could not provide any names. Cooper
further argues that the 100 grams seized from Warren Woody in New York was unreasonably linked
to the conspiracy based only on the fact that Woody possessed a bus ticket to New Orleans when he
was arrested. He further challenges the remaining 192 grams of heroin on the basis that Eberhardt's
testimony was unverifiable conjecture. Finally, Cooper argues that nothing in the record supports
Eberhardt's testimony concerning the packaging of the heroin that shows such packaging was unique
to this conspiracy.
Ordinarily, a PSR bears sufficient indicia of reliability to be considered as evidence by the
sentencing judge when making factual determinations. See United States v. Narviz-Guerra, 148 F.3d
530, 537 (5th Cir. 1998). The district court may adopt the facts contained in the PSR without further
inquiry if the facts have an adequate evidentiary basis and the defendant does not present rebuttal
evidence. See United States v. Alford, 142 F.3d 825, 832 (5th Cir. 1998). Although he cross-
examined Eberhardt, Cooper presented no rebuttal evidence to the PSR's calculation based on one
kilogram of heroin. In addition to the PSR, however, the district court had the benefit of an affidavit
and live testimony from Eberhardt concerning the investigation into the Faulk and Cooper
organization.
The evidence was sufficient to link the 32.5 grams of heroin addressed to Lionel Greer to this
conspiracy. First, Greer admitted to Eberhardt that the heroin was meant to be distributed in St.
Thomas. Despite Cooper's assertion that Greer "could not provide any names," Eberhardt's
testimony was that Greer "did not" specifically name anyone. Eberhardt testified, however, that the
9 package was sent from a New York address that had been targeted as part of the investigation into
the present conspiracy. He also testified that he knew Greer "to be involved in the conspiracy to an
extent." Finally, the heroin was packaged in wax paper with the telltale "911" and "Amazing"
stamped on it, which Eberhardt testified was unique to this conspiracy. Eberhardt testified that heroin
sold in other parts of the city was packaged in foil, rather than wax paper, and that the packaging
helps identify the group to which it belongs.
As for the 100 grams of heroin seized from Woody, Eberhardt testified that he had identified
Woody as Cooper and Faulk's main New York supplier. Woody was on his way to New Orleans
"to meet friends" when he was arrested with the heroin, as evidenced by his possession of the bus
ticket. The heroin also was in the same unique wax paper packaging as the heroin sold by Cooper
and Faulk.
It is true, as intimated by Cooper, that heroin packaged in wax paper conceivably could have
been destined for others in New Orleans. Cooper's argument would be stronger if the packaging was
the only link between the heroin and this conspiracy. However, when the heroin also originates from
people who are identified as Cooper and Faulk's main supplier (Woody) and as being involved in the
conspiracy (Greer), it is not implausible that the heroin was meant for Cooper and Faulk. Puig-
Infante, 19 F.3d at 942. There is no clear error in the district court's finding.
As for the remaining amounts of heroin, Eberhardt testified that he spent numerous hours of
surveillance observing the members of the conspiracy engaged in heroin transactions. He received
daily reports from confidential informants concerning the drug activity of the defendants. He
arranged for a confidential informant to make purchases directly from each of the defendants, which
totaled approximately 13.6 grams. He further participated in numerous traffic stops of individuals
10 who had just purchased between two and three bundles of heroin from the defendants. Eberhardt
testified that the traffic stops would "easily" bring the total amount of heroin "to near 1,000 [grams],
if not over." Finally, Eberhardt testified that his calculation of the amounts seized from the various
sources used a "very, very conservative estimate" of .5 grams per bundle and that one kilogram was
"a conservative estimate" of the total amount for the conspiracy from November 1996 to May 1999.
A district court may consider "'estimates of the quantity of drugs for sentencing purposes.'"
Alford, 142 F.3d at 832 (quoting United States v. Sherrod, 964 F.2d 1501, 1508 (5th Cir. 1992)).
Eberhardt made clear that his numbers were estimates and that they were on the conservative side.
The district judge stated that she "believe[d] the agent's estimate." See also Puig-Infante, 19 F.3d
at 943 (upholding drug quantity finding where district court explicitly stated that it relied not only on
the PSR but also the testimony from the witness stand). As such, Cooper has not shown clear error
in the district court's finding that one kilogram of heroin was attributable to the conspiracy.
2. Faulk
Faulk asserts that the district court erroneously used one kilogram as the amount of drugs
involved rather than the 13.6 grams of heroin admitted in the factual basis. Faulk argues that
Eberhardt's testimony that Faulk and Cooper were the main suppliers was based on uncorroborated
hearsay by informants. He contends that Eberhardt's testimony concerning the quantity of heroin is
therefore speculative.
A district court has wide discretion in determining which evidence to consider and to credit
for sentencing purposes. See United States v. Davis, 76 F.3d 82, 84 (5th Cir. 1996). The defendant
bears the burden of showing that the information relied upon by the district court is materially untrue.
Id. As outlined above with respect to Cooper, the district court did not err in determining the amount
11 heroin to be one kilogram.
3. Green
Green also argues that the district court erred in determining that one kilogram of heroin was
attributable to the defendants. Green asserts that Eberhardt failed to testify directly that the amount
of heroin was one kilogram and merely agreed with a leading question from the prosecutor. Green's
argument is unavailing. As noted in detail above with respect to Cooper, Eberhardt's testimony was
extensive concerning t he amounts of heroin involved. The district court also had the benefit of
Eberhardt's affidavit, which likewise stated that the amount involved was "at least one kilogram."
4. Alexander
Alexander argues that the district court erred in attributing one kilogram of heroin to him
because: (1) the evidence was insufficient to prove the amount was one kilogram, as the PSR's
calculation was founded on a factual basis agreed to by the other defendants who were more culpable
and more involved in the conspiracy;1 (2) his role in the conspiracy was limited in that he was
incarcerated on unrelated charges prior to October 30, 1996 and reincarcerated in1998, and thus
could not be held responsible for amounts of heroin involved while he was in prison; (3) the
government's evidence showed he was involved in only one transaction involving 4.2 grams of heroin;
and (4) he presented evidence showing that he had withdrawn from the conspiracy. In the district
court, Alexander challenged the amount of drugs involved in the conspiracy and presented evidence
at an evidentiary hearing in an attempt to rebut the PSR’s findings with respect to the amount of
drugs attributable specifically to him.
1 The factual basis signed by Alexander provided that the amount of heroin was in dispute. The factual basis with respect to the other appellants provided that “not more than one (1) kilogram of heroin” was involved in the drug offenses.
12 It is well established that relevant conduct under the sentencing guidelines includes all
reasonably foreseeable acts of coconspirators in furtherance of the conspiracy. See § 1B1.3(a)(1)(B).
Nonetheless, “the reaso nable foreseeability of all drug sales does not automatically follow from
membership in the conspiracy.” United States v. Wilson,116 F.3d 1066, 1077 (5th Cir. 1997),
vacated in part sub. nom. United States v. Brown, 123 F.3d 213 (5th Cir.1997) (en banc).2 To
determine a defendant’s sentence for participation in a drug conspiracy, the district court must make
the following findings: (1) when the defendant joined the conspiracy; (2) the quantities of drugs that
were within the scope of the agreement; and (3) the quantities the defendant could reasonably foresee
being distributed by the conspiracy. Id. at 1076.
The conspiracy count (to which Alexander pleaded guilty) alleged that the conspiracy began
“at a time unknown, but prior to in or about November 1996, and continuing through the filing of this
indictment,” which occurred on May 21, 1999. It is undisputed that Alexander was released from
prison in October of 1996. He was reincarcerated sometime in 1998.3 At the evidentiary hearing,
Eberhardt testified that the first time he was able to corroborate Alexander’s involvement in the
conspiracy through his confidential informant was on April 24, 1997. On cross examination, Agent
Eberhardt admitted that he could “only prove that [Alexander] distributed heroin on one occasion.”
Eberhardt was referring to the 4.2 grams o f heroin he witnessed Alexander sell on May 7, 1997.
That conduct formed the basis of the distribution count in the indictment to which Alexander pleaded
2 The relevant portion of the panel opinion “remain[ed] unaffected.” United States v. Brown, 161 F.3d 256, 257 n.1 (5th Cir. 1998) (en banc). 3 In its statement of reasons for imposing sentence, the district court indicated that Alexander was reincarcerated in May of 1998. The PSR indicates that Alexander was arrested on October 21, 1998 on a state charge of possession of heroin.
13 guilty. Eberhardt further testified that, as compared to codefendant Ernest Green, Alexander was not
a “regular” selling drugs on the corner.
Additionally, in an affidavit, Eberhardt provided that during his investigation he interviewed
codefendant Thompson, who stated that she had personal knowledge of Alexander selling heroin for
Faulk and Cooper. Eberhardt’s affidavit further provided that he interviewed Daryl Fisher, a heroin
dealer who worked for Green, and Fisher stated that he had personal knowledge that Faulk, Cooper,
Green, and Alexander were all involved in the distribution of heroin.
In rebuttal, Alexander called as a witness Richard Krumm, who had been the general manager
of a New Orleans rest aurant called Metro Bistro. Krumm testified that Alexander worked as a
dishwasher at the Metro Bistro “at least 30 to 40 hours a week” from October of 1997 until May of
1998. Business records were also introduced that corroborated this testimony. In contrast, the
evidence at the hearing and in the PSR indicates that the other defendants were not gainfully
employed.
Alexander also called as a witness Reverend Torin Sanders, who was a pastor at the Sixth
Baptist Church in New Orleans. Reverend Sanders testified that Alexander became an active member
in late 1996 after being released from prison. Alexander was involved in the drug ministry and
attended meetings on Monday night s and also attended Reverend Sanders’ monthly service at the
parish prison. Alexander stopped attending in March or April of 1997 and became active again in the
ministry in the summer of 1998.
After hearing t his evidence, the district court issued a statement of reasons for imposing
sentence, which provided in part as follows:
Defendant objects to the finding that the readily provable amount attributable to the
14 conspiracy for sentencing purposes is one kilogram. Defendant has objected to the quantity of heroin attributed to him. Defendant asserts that the amount of one kilogram was a negotiated weight for sentencing purposes for other defendants who played greater roles in the conspiracy and were members of the conspiracy for longer periods of time. Defendant states that his role was limited in time and activity, as shown by the fact that he was incarcerated until October 26, 1996, and further, that the government’s evidence reveals that he was observed during only a single transaction on May 7, 1997.
Pursuant to the evidence adduced at the defendant’s evidentiary hearing and the affidavit of Special Agent Eberhardt, the Court finds that defendant Alexander could foresee the sale of at least one kilogram of heroin by the co nspiracy. The Court finds sufficient evidence in support of Alexander’s participation in the drug conspiracy, to which Alexander plead guilty, for the period between his release from custody in October 1996, and his reincarceration in May, 1998, such that Alexander could reasonably foresee the sale of at least one kilogram of heroin in connection with the joint criminal activities of the Faulk conspiracy. In addition, the Court finds that defendant’s involvement in drug ministry and/or full-time employment does not preclude his involvement in the Faulk drug conspiracy.
In short, the district court expressly considered Alexander’s arguments and evidence but
nevertheless concluded that he participated in the conspiracy from October of 1996 through May of
1998 and based on that participation, could have reasonably foreseen the sale of at least one kilogram.
Our review of the evidence indicates that Alexander certainly was not as involved in the
conspiracy as Faulk, Cooper, or even Green. The evidence indicates that Faulk and Cooper received
a greater share of the profits and were in charge of the organization. Also, Alexander’s evidence
regarding his employment and drug ministry participation tends to limit his role in the conspiracy and
the scope of his agreement. The district court, however, considered that evidence and expressly
found that Alexander’s involvement in the drug ministry and his full time employment did not
preclude his involvement in the conspiracy.
Additionally, we are mindful that a district court should consider whether a defendant’s
15 incarceration limited the foreseeability of any of the transactions that occurred after the defendant is
incarcerated. Puig-Infante, 19 F.3d at 945. Again, however, the district court expressly took into
consideration the time period in which Alexander was incarcerated.
Under the above described circumstances, the district court’s finding is plausible in light of
the record as a whole. Therefore, we do not believe that the district court’s finding is clearly
erroneous.
B. Apprendi challenge to prison sentences.
Relying on Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), Alexander, Faulk,
and Green argue that their sentences must be vacated and remanded for resentencing.4 The Supreme
Court held last year that "[o]ther than the fact of a prior conviction, any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond
a reasonable doubt." Apprendi, 120 S. Ct. at 2362-63. This Court has applied Apprendi's holding
to the sentencing scheme for drug convictions under 21 U.S.C. § 841(b). See United States v.
Doggett, 230 F.3d 160, 164-65 (5th Cir. 2000). In Doggett, we held "that if the government seeks
enhanced penalties based on the amount of drugs under 21 U.S.C. § 841(b)(1)(A) or (B), the quantity
must be stated in the indictment and submitted to a jury for a finding of proof beyond a reasonable
doubt." Id.
In the present case, the amount of heroin involved in the conspiracy count was not stated in
4 Alexander raised this issue in his initial brief. This Court allowed Faulk to file a supplemental brief in which he raised this issue. In a letter to this Court filed on December 26, 2000, Green adopted the arguments of his codefendants on appeal.
16 the indictment.5 Error under Apprendi requires reversal only if a defendant's sentence exceeds the
statutory maximum. See United States v. Keith, 230 F.3d 784, 787 (5th Cir. 2000); Doggett, 230
F.3d at 165 (stating that even if a drug amount is not alleged in the indictment, Apprendi does not
apply where the sentence is less than the statutory maximum provided by 21 U.S.C. § 841(b)(1)(C)).
Section 841(b)(1)(C) sets the statutory maximum for an offense involving an unspecified amount of
a Schedule I substance at 20 years in prison. Heroin is a Schedule I substance. See United States v.
Hernandez-Avalos, 251 F.3d 505, 508 (5th Cir. 2001); § 812(c), Schedule I(b)(10). The appellants’
sentences of imprisonment do not exceed the statutory maximum: 211 months (Faulk) 140 months
(Alexander); and 136 months (Green). Apprendi therefore offers no succor with respect to the
sentences of imprisonment.
C. Apprendi challenge to supervised terms of release.
In Faulk’s supplemental brief, he sets forth his Apprendi argument and concludes by generally
challenging the length of the term of supervised release imposed under the charging statute, 21 U.S.C.
§ 841. And, as previously noted, Green adopted all applicable arguments made by the other
appellants. Faulk and Green thus have adequately challenged their terms of supervised release.
Faulk and Green pleaded guilty to distribution of heroin and conspiracy to possess with intent
to distribute heroin in violation of 21 U.S.C. §§ 841(a)(1) and 846. Because the indictment did not
set forth the quantity of heroin, the appellants are guilty of a Class C felony. Title 18 § 3583(b)(2)
provides that “[e]xcept as otherwise provided, the authorized terms of supervised release are . . . for
a class C or D felony, not more than three years . . . .” (emphasis added). This Court has recognized
5 We note that the factual basis agreed to by Cooper, Faulk, and Green stated that the amount of heroin involved was "not more than one (1) kilogram."
17 that § 3583(b) is a default supervised release statute. United States v. Meshack, 225 F.3d 556, 578
(5th Cir. 2000). In the case at bar, the appellants were convicted under 21 U.S.C. § 841(a)(1). The
corresponding penalty section, § 841(b)(1)(C), provides that in the case of a controlled substance
in schedule I (here, heroin), a defendant with no prior felony drug conviction shall receive a term of
supervised release of “at least three years.” This Court has recognized the differing language in the
two statutes, § 3583(b)(2) and § 841(b)(1)(C), and determined that a defendant with no prior felony
drug conviction is “required to receive a supervised release term of not less than nor more than three
years.” United States v. Kelly, 974 F.2d 22, 24 (5th Cir.1992). However, if a defendant does have
a prior felony drug conviction that has become final, § 841(b)(1)(C) provides that the court must
“impose a term of supervised release of at least 6 years in addition to such term of imprisonment.”
The record indicates that Faulk does not have a prior felony drug conviction but that Green
does have such a prior conviction. Under these circumstances, Green is not entitled to relief; Faulk,
however, should have received a three-year term of supervised release. Faulk did not object.
Nevertheless, “[u]nder plain error review, we correct overlong terms of supervised release.”
Meshack, 225 F.3d at 578 (citing Kelly, 974 F.2d at 24-25).6 This Court has modified terms of
supervised release that exceeded the statutory maximum without remanding for resentencing. See
Doggett, 230 F.3d at 165 n.2. However, as set forth below, because we are vacating Faulk’s
6 Although Alexander raised an Apprendi challenge, he did not specifically challenge his term of supervised release. Cooper did not raise any Apprendi challenge. Nevertheless, we have raised sua sponte Apprendi issues in other cases. See United States v. Gonzalez, 259 F.3d 355, vacated for rehearing en banc, 2001 WL 946413 (Aug. 15, 2001); United States v. Vasquez-Zamora, 253 F.3d 211, 214 (5th Cir. 2001); United States v. Garcia, 242 F.3d 593, 599 (5th Cir. 2001). We decline to review on our own motion an Apprendi challenge to Cooper and Alexander’s terms of supervised release. We note that even if we exercised our discretion to do so in this case, the record indicates there was no plain error.
18 sentence on another ground, the district court will have the opportunity on remand to correct the term
of supervised release to the statutorily mandated three-year term.
D. Faulk’s Enhancement for Possession of a Firearm under § 2D1.1(b)(1).
Faulk argues that the district court erroneously enhanced his sentence based on possession
of a firearm under U.S.S.G. § 2D1.1(b)(1),7 which provides that “[i]f a dangerous weapon (including
a firearm) was possessed, increase by 2 levels.” Although in the instant case he pleaded guilty to the
offense of being a felon in possession of a gun in violation of 18 U.S.C. § 922(g)(1), he argues that
the gun he illegally possessed had no connection to the heroin offenses. Faulk states that when he
was arrested and the gun was seized from the vehicle there was no heroin found in the vehicle and
there was no evidence linking the car to the heroin trafficking. Without such a nexus, Faulk argues,
the enhancement was unwarranted.
As indicated, the sentencing guidelines pro vide that the defendant's sentence should be
increased by two levels whenever, in a crime involving the manufacture, import, export, trafficking,
or possession of drugs, t he defendant possessed a dangerous weapon. See § 2D1.1(b)(1); United
States v. Gaytan, 74 F.3d 545, 559 (5th Cir. 1996). “The government has the burden of proof under
§ 2D1.1 of showing by a preponderance of the evidence ‘that a temporal and spatial relation existed
between the weapon, the drug trafficking activity, and the defendant.’” United States v. Vasquez, 161
F.3d 909, 912 (5th Cir. 1998) (quoting United States v. Eastland, 989 F.2d 760, 770 (5th Cir.
1993)). Under this standard, the government must show that "the weapon was found in the same
location where drugs or drug paraphernalia are stored or where part of the transaction occurred."
7 Section 2D1.1 is entitled “Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy.”
19 Eastland, 989 F.2d at 770 (internal quotation marks and citation omitted). This is a factual finding
and thus reviewed for clear error. United States v. Jacquinot, 258 F.3d 423, 430 (5th Cir. 2001).
Faulk correctly asserts that in cases dealing with an enhancement for possession of a firearm
there has been evidence affirmatively linking the drug trafficking activity to the weapon or the place
where the weapon was found. In United States v. Brown, this Court upheld the two-level
enhancement pursuant to § 2D1.1(b)(1) where police found a shotgun in the trunk of the defendant's
car during the course of their investigation. 217 F.3d 247, 261 (5th Cir. 2000), remanded on other
grounds, Randle v. United States, __ U.S. __, 121 S.Ct. 1072 (2001). Witnesses provided the
necessary link between the gun and the drug t rafficking by testifying that the defendant used the
vehicle to transport crack cocaine. Similarly, in Vasquez, guns kept at the defendant's place of
business were used to enhance the sentence because the district court found that the defendant used
the business as a location to store drugs and the proceeds of drug sales. Vasquez, 161 F.3d at 912;
United States v. Flucas, 99 F.3d 177, 178-79 (5th Cir. 1996) (enhancement applied where gun and
cocaine both found under defendant's car seat); United States v. Myers, 150 F.3d 459, 465 (5th Cir.
1998) (gun found in apartment where transactions related to drug conspiracy took place).
In contrast to the facts of Brown and Vasquez, no heroin or paraphernalia was found in the
vehicle when the firearm was seized, and there is nothing in the record showing that Faulk used that
vehicle to transport heroin or to conduct any other activities associated with the conspiracy.
Although a codefendant’s affidavit provides that Faulk would “usually” deliver heroin to her while
driving a black “Trans Am,” the record on appeal does not indicate that Faulk was in that Trans Am
on February 2, 1997, when the firearm was seized. Likewise, the codefendant’s affidavit does not
indicate that Faulk ever possessed a firearm in the Trans Am. It is undisputed that Faulk did not own
20 the vehicle in which he was a passenger at the time the gun was seized. It thus appears unlikely that
the Trans Am in which he usually delivered the heroin was the vehicle from which the gun was seized.
In any event, it was not proven by a preponderance of the evidence.
The government responds that when Faulk was arrested on February 2, 1997, he was in
possession of the firearm during the time line of the charged conspiracy, which ran from “prior to in
or about November 1996" to May 1999. It is true that Faulk possessed the gun at a point in time
during which the government charged that the conspiracy was still in progress. However, our
research has revealed no cases in which the enhancement was applied without drugs being found with
the weapon or evidence presented that the location of the weapon was used in connection with drug
trafficking activities. As a practical matter, the government's argument would result in an
enhancement any time a drug offender is found with a gun regardless of whether drugs are also found
or otherwise connected to the gun's location as long as the government alleges that the defendant is
involved in an ongoing conspiracy. Of course, such a holding would relieve the government of its
burden of proving that a temporal and spatial relation existed between the weapon, the drug
trafficking activity, and the defendant.
Our decision in United States v. Siebe, 58 F.3d 161 (5th Cir. 1995), is instructive on this
issue. In that case, the appellant asserted that the district court erred in assessing two points under
§ 2D1.1(b)(1) based solely on the presumption that he possessed a firearm because he was a police
officer. We explained that absent the presumption there was no evidence that Siebe possessed a
firearm during the commission of the offense. While we acknowledged that the FBI had discovered
90 guns in Siebe’s residence, there was no evidence of drug trafficking activities at the residence. As
such, we concluded that the government had not shouldered its burden of proving the requisite
21 connection between the firearm and the drug trafficking. Thus, we remanded for resentencing
without the two point enhancement.
We have recognized that firearms are "tools of the trade" in drug conspiracies. United States
v. Mergerson, 4 F.3d 337, 350 (5th Cir. 1993). Nonetheless, in the instant case, the government
failed to demonstrate that a temporal and spatial relation existed between the weapon, the drug
trafficking activity, and the defendant. Under these circumstances, the district court clearly erred in
finding the enhancement under § 2D1.1(b)(1) applies.8 We therefore vacate Faulk’s sentence and
remand for resentencing without the enhancement.
E. Faulk’s Enhancement as an Organizer or Leader.
Faulk argues that the district court erred by finding that he was the organizer or leader of a
criminal enterprise and by enhancing his sentence four levels. He argues that rather than being a
leader or organizer of criminal activity he was merely a co-supplier of heroin along with Cooper.
According to Faulk, he merely distributed the drugs to the codefendants, who could then resell it to
anyone they wished. He contends that there was no evidence that he controlled any of the other
defendants or claimed a greater percentage of the profit from the drug sales.
"If the defendant was an organizer or leader of a criminal activity that involved five or more
8 Paraphrasing § 2D1.1, comment. (n.3), the district court stated that “[b]ecause the weapon was present, and it is not clearly improbable that the weapon was connected with the offense, the enhancement is warranted.” As set forth above, however, the government did not establish that Faulk possessed the weapon within this Court’s interpretation of § 2D1.1, i.e. a temporal and spatial relation must exist between the weapon, the drug trafficking activity, and the defendant. Thus, the burden had not yet shifted to Faulk to prove that it was clearly improbable that the weapon was connected with the offense. Cf. United States v. Marmolejo, 106 F.3d 1213, 1216 (5th Cir. 1997) (explaining that the firearm was possessed during the commission of a drug offense and the defendant had failed to bear his burden of proving that it was "clearly improbable" that the gun was connected to the offense).
22 participants or was otherwise extensive" a four-level increase is warranted. See § 3B1.1(a). In
determining whether a defendant is a leader, a court should consider the following factors: "the
exercise of decision making authority, the nature of participation in the commission of the offense,
the recruitment of acco mplices, the claimed right to a larger share of the fruits of the crime, the
degree of participation in planning or organizing the offense, the nature and scope of the illegal
activity, and the degree of control and authority exercised over others." § 3B1.1, comment. (n.4).
We review such a factual finding for clear error. United States v. Thomas, 120 F.3d 564, 574 (5th
Cir. 1997).
Contrary to Faulk's arguments, the evidence showed that both Faulk and Cooper were the
leaders and organizers of the heroin distribution. At least five participants in the criminal activity are
found by looking at the codefendants: Cooper, Faulk, Green, Alexander, and Thompson. See United
States v. Wilder, 15 F.3d 1292, 1299 (5th Cir. 1994) (defendant may be included among the five
participants). Eberhardt testified that Claude Robinson told him the heroin bundles he received had
been arranged for, purchased by, and belonged to Faulk and Cooper. Faulk and Cooper further
traveled to New York to obtain heroin from Victor Castro, one of their New York suppliers. Faulk
and Cooper in turn supplied Green, Alexander, and Thompson. Eberhardt testified that Thompson
told him that she sold heroin on behalf of Faulk and Cooper. Thompson also signed an affidavit
stating that Faulk had asked her if she wanted to sell heroin herself since she had been referring
customers to him. This affidavit provides that Faulk recruited Thompson to sell for him. Moreover,
Thompson's affidavit states that she received 5 packs of heroin at a time from Faulk and Green, which
she then sold for approximately $1,250. Faulk allowed her to keep $150 of the sale. This
arrangement shows that Faulk received a greater share of the profits.
23 Proof that the defendant supervised only one other culpable participant is sufficient to make
the defendant eligible for the enhancement. See United States v. Washington, 44 F.3d 1271, 1281
(5th Cir. 1995); United States v. Okoli, 20 F.3d 615, 616 (5th Cir. 1994). There can also be more
than one person who qualifies as a leader or organizer of a criminal association or conspiracy. See
§ 3B1.1, comment. (n.4). Given Faulk and Cooper's arrangement for the heroin deliveries, their
supplying of the other defendants, Faulk's recruitment and control of Thompson, and his claim to a
greater portion of profit from Thompson's sales, the district court did not err in finding that Faulk was
a leader or organizer. See § 3B1.1, comment. (n.4); United States v. Ocana, 204 F.3d 585, 592 (5th
Cir. 2000).9
F. Downward Departure
Faulk argues that the district court erred by failing to actually depart from his applicable
guideline range after granting the government’s § 5K1.1 motion based on substantial assistance.10
Specifically, he argues that although the district court initially granted the government’s §5K1.1
motion to allow a ten percent reduction in sentence, after an error in the PSR was corrected at
resentencing, the court erroneously refused to provide the reduction.
9 Faulk also argues that one point was erroneously added to his criminal history pursuant to U.S.S.G. § 4A1.1(e) for co mmitting the offense less than two years after being released from imprisonment. He contends that because the indictment states the offense commenced on or about November 1996 and he was released from prison on October 28, 1994, he committed the offense more than two years after his release. The indictment actually states that the conspiracy began "at a time unknown, but prior to in or about November 1996." (emphasis added). In any event, Faulk concedes in his brief that even if the one point added to his criminal history were removed his sentence would not change. Accordingly, any error is harmless. 10 In pertinent part, U.S.S.G. § 5K1.1 provides that “[u]pon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines.”
24 A district court has almost complete discretion to determine the extent of a departure under
§ 5K1.1. United States v. Alvarez, 51 F.3d 36, 41 (5th Cir. 1995). The district court also has almost
complete discretion to deny the government's § 5K1.1 motion. Myers, 150 F.3d at 463. This Court
has jurisdiction to review a challenge to a sentence only if it was (1) imposed in violation of law,
(2) imposed as a result of an incorrect application of the guidelines, (3) resulted from an upward
departure, or (4) was unreasonably imposed for an offense not covered by the guidelines. United
States v. Yanez-Huerta, 207 F.3d 746, 748 (5th Cir. 2000). We lack jurisdiction to review the district
court's refusal to depart downward, unless the district court's refusal was based on a mistaken belief
that it lacked the power to depart downward. Id. "A refusal to grant a downward departure is a
violation of law only if the court mistakenly assumes that it lacks authority to depart." Id.
Based on the initial PSR, Faulk’s guideline range was 235 to 293 months. After granting the
government’s § 5K1.1 motion for a ten percent departure, the court sentenced Faulk to 211 months.
Subsequently, the probation office revised Faulk’s criminal history category in the PSR, resulting in
an applicable guideline range o f 210 to 262 months. Faulk asserts that after the revision he was
entitled to a sentence of 189 months with the § 5K1.1 departure (ten percent). However, the
government did not reurge its § 5K1.1 motion at resentencing. Instead, it filed a supplemental motion
and memorandum urging the district court “to maintain the current sentence [of 211 months] in light
of the very serious nature of this offense along with considerations of the defendant’s cooperation.”
In the court’s revised statement of reasons for imposing sentence, it agreed with the government and
“decline[d] to modify defendant’s sentence.” The court resentenced Faulk to the original sentence,
211 months.
Faulk, relying on the following language also contained in the court’s revised statement of
25 reasons for imposing sentence, argues that the court in fact granted the government’s motion: “The
Court finds that the nature, extent, significance, and timeliness of the assistance rendered by the
defendant warrant a downward departure.” It is unclear but it appears this language may have been
inadvertently left in the document from the original sentencing.
Our interpretation of these events is that the government rescinded its § 5K1.1 motion at
Faulk’s resentencing and thus, the district court did not have the authori ty to depart downward.
"Absent a motion for downward departure made by the [g]overnment, a sentencing court is without
authority to grant a downward departure on the basis of substantial assistance under § 5K1.1."
United States v. Price, 95 F.3d 364, 367 (5th Cir. 1996); see also Wade v. United States, 504 U.S.
181, 112 S.Ct. 1840, 1843, 118 L.Ed.2d 524 (1992) (stating that "upon motion of the government"
is a condition limiting the court's authority to depart under § 5K1.1).11 Because the district court did
not have authority to grant the departure, it could not have erred in refusing to do so.
Even assuming the government’s § 5K1.1 motion was not rescinded, another interpretation
of the events would be that the district court denied the motion and simply refused to depart
downward. Under that scenario, we have no jurisdiction to review the decision unless the district
court was mistaken about its authority to do so, and there is no indication of that in the instant case.
Yanez-Huerta, 207 F.3d at 748.
Another alternative scenario, again assuming a properly filed § 5K1.1 motion, would be that
the district court granted the motion, but failed to depart downward. If so, this scenario would be
11 "[A] district court may review the Government's refusal to move for a downward departure if the refusal is based on an unconstitutional motive." United States v. Solis, 169 F.3d 224, 226 (5th Cir. 1999). There has been no assertion that the government ’s refusal to move for a downward departure at resentencing was based on an unconstitutional motive.
26 controlled by United States v. Hashimoto, 193 F.3d 840, 843 (5th Cir. 1999). In Hashimoto, the
government filed a § 5K1.1 motion at the defendant’s resentencing after appeal and remand. The
district court granted the motion, expressly stated that it was granting the departure, and yet imposed
a sentence within the guideline range. Id. at 843. The defendant appealed, contending that his
sentence must be vacated because although the district court granted the §5K1.1 motion it did not
depart downward. This Court held that because the defendant was not challenging the extent of an
actual downward departure or the denial of a § 5K1.1 motion, “our rule that we will not review the
denial of a § 5K1.1 motion does not apply.” Id. The question was whether, after granting that
motion, the district court was required to depart downward. This Court held that although the
district court erred in not departing after granting the § 5K1.1 motion, the error was harmless because
the sentence imposed was authorized. Likewise, here any error is harmless because the district court
was authorized to impose the sentence Faulk received. Accordingly, our precedent precludes Faulk
from obtaining relief on this claim.
III. CONCLUSION
For the above reasons, we VACATE and REMAND Faulk’s sentence. We AFFIRM the
sentences of Cooper, Green and Alexander.
AFFIRMED in part, VACATED in part, and REMANDED.