UNITED STATES COURT OF APPEALS For the Fifth Circuit
No. 98-41246
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JESSIE JOE HERNANDEZ aka “J.J.”; MICHAEL DWAYNE HOLMES aka “BIG”; JASON HERNANDEZ; JOHN MANUEL HERNANDEZ aka “TEETER”; STEVIE HERNANDEZ; CRAIG LAMARIO MOSLEY; VINCENT CARLMEL SELF aka “Carlmel”; and JAMES DWAYNE ORTEGA aka “FAT BOY”,
Defendants-Appellants.
Appeals from the United States District Court For the Eastern District of Texas Sherman Division (98-CR-14-1) May 24, 2001
Before REYNALDO G. GARZA, STEWART, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge*:
This is a direct appeal from final judgments of convictions
* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1 and sentences of nine codefendants, based on an indictment arising
from an alleged drug distribution conspiracy in McKinney, Texas.
I.
On March 13, 1998, a federal grand jury returned a 114-count
indictment against thirty defendants. The defendants were tried in
two groups, the instant case involving the trial of James Dwayne
Ortega (“Ortega”), Jesse Joe Hernandez (“JJ”), Stevie Hernandez
(“Stevie”), John Manuel Hernandez (“John”), Vincent Carlmel Self
(“Self”), Jason Hernandez (“Jason”), Craig Lamario Mosley
(“Mosley”), and Michael Dwayne Holmes (“Holmes”).
The indictment alleged that the defendants were part of a
large drug distribution ring from 1992 until March 1998, involving
the purchase, storage, processing, repackaging, and sale of a total
of more than seven kilograms of crack cocaine, twenty kilograms of
powder cocaine, three kilograms of methamphetamine, and 600 pounds
of marijuana. According to the indictment, the defendants
converted powder cocaine to crack cocaine; they relied on each
other for aid in fulfilling orders when they did not have enough
drugs on hand; they networked with each other using telephones,
cellular phones, and pagers; they stored the drugs at various stash
houses owned or leased by members of the group; and the sites of
the stash houses and distribution deals often were located within
2 1000 feet of schools, playgrounds, and other statutorily protected
zones.
Holmes and Jason allegedly were the leaders of the conspiracy,
pooling their money to increase their purchase power. Self
allegedly was the initial supplier of marijuana and powder cocaine
to the group. Stevie, JJ, Ortega, and John allegedly distributed
the drugs to users and lower level dealers. Mosley allegedly
joined the conspiracy in September 1997 when he received two large
deliveries of crack cocaine in Arkansas.
Mosley was indicted with one count of conspiracy to distribute
controlled substances and to aid and abet the distribution of
controlled substances, 21 U.S.C. § 846; he was convicted and
sentenced to 240 months imprisonment, $1000 fine, and ten years
supervised release. Jason was indicted on one count of conspiracy,
21 U.S.C. § 846; six counts of possession with intent to distribute
crack cocaine (four counts), methamphetamine (one count), and
methamphetamine/cocaine hydrochloride mixture (one count), 21
U.S.C. § 841(a); three counts of distribution within 1000 feet of
a school, public housing authority, or playground, 21 U.S.C. § 860;
and three counts of establishment of a place for storage,
manufacture, and distribution of a controlled substance, 21 U.S.C.
§ 856. He was convicted of all but two counts of possession with
intent to distribute crack, and one count of establishment of a
place for storing and distribution of a controlled substance, and
3 sentenced to life on the conspiracy charge, four twenty-year
sentences, four forty-year sentences, and one eighty-year sentence
of imprisonment, to be served concurrently. Self was charged on
the one count of conspiracy, 21 U.S.C. § 846, and found guilty; he
was sentenced to 292 months imprisonment and fined $1000. John was
charged with one count of conspiracy, 21 U.S.C. § 846, possession
with intent to distribute crack, 21 U.S.C. § 841(a), and two counts
of distribution within 1000 feet of a school, 21 U.S.C. § 860; he
was convicted on all four counts and sentenced to 120 months
imprisonment on each charge, to be served concurrently, and fined
$1000. Stevie was charged with one count of conspiracy, 21 U.S.C.
§ 846, five counts of possession with intent to distribute crack,
21 U.S.C. § 841(a), and five counts of distribution within 1000
feet of a school or playground, 21 U.S.C. § 860; he was convicted
on all but one count of possession with intent to distribute crack
and one count of distribution in a protected zone, and sentenced to
120 months imprisonment on all counts to be served concurrently.
JJ was charged with one count of conspiracy, 21 U.S.C. § 846, three
counts of possession with intent to distribute crack, 21 U.S.C. §
841(a), one count of use of a communication facility to commit a
controlled substance offense, 21 U.S.C. § 843(b), and three counts
of distribution within 1000 feet of a school or playground, 21
U.S.C. § 860; he was convicted on all but one count of possession
with intent to distribute and one count of distribution in a
4 protected zone and sentenced to 240 months imprisonment on each
remaining count, to be served concurrently, along with a $1000
fine. Ortega was charged with one count of conspiracy, 21 U.S.C.
§ 846, one count of possession with intent to distribute crack, 21
U.S.C. § 841(a), one count of possession with intent to distribute
cocaine, 21 U.S.C. § 841(a), one count of use of a communications
facility to commit a controlled substance offense, 21 U.S.C. §
843(b), two counts of distribution within 1000 feet of a school or
playground, 21 U.S.C. § 860, and one count of establishment of a
place to store, manufacture, and distribute controlled substances,
21 U.S.C. § 856; he was convicted of all but one count of
distribution in a protected zone and one count of using a
communication facility, and sentenced to 292 months imprisonment on
the cocaine offenses and 240 months imprisonment on the two
remaining charges, to be served concurrently, and six years
supervised release. Holmes was convicted of one count of
conspiracy, 21 U.S.C. § 846, four counts of possession with intent
to distribute crack, 21 U.S.C. § 841(a), one count of use of a
communication facility, 21 U.S.C. § 843(b), one count of
distribution within 1000 feet of a school, 21 U.S.C. § 860, and two
counts of establishing a place for storage, manufacture, and
distribution of controlled substances, 21 U.S.C. § 856; he was
sentenced to life imprisonment on the first three charges and 240
months imprisonment on the remainder, to be served concurrently.
5 All defendants filed timely notices of appeal.
II.
The defendants make the following arguments on appeal:
Regarding trial and pretrial errors, Stevie, Self, John,
Jason, Mosley, and Ortega argue that the evidence is insufficient
to sustain their convictions, each contending specifically that the
testimony of Patrick Zachery, a confidential informant, was
unreliable. Holmes argues that his motion to dismiss the
indictment for double-jeopardy reasons should have been granted.
Stevie argues that Collin County residents should have been
excluded from the jury, or that the trial should have been moved to
a different venue, for reasons of excessive pretrial publicity.
Stevie also argues that the trial court should have granted his
motion to suppress audio tapes and related transcripts as
unreliable. Self argues that the admission of acts occurring
before the date in the indictment was in plain error. Jason argues
that the admission of expert testimony about the nature of the
substances seized was in plain error. Ortega argues that the
admission of evidence surrendered to police was an abuse of
discretion.
Regarding sentencing, Stevie argues that the trial court erred
in finding him ineligible for relief under the “safety valve”
6 provision. Holmes argues that the trial court erred in finding him
to be a “leader” for sentencing guidelines purposes. JJ and Jason
argue that the trial court clearly erred in imposing sentence based
on the maximum sentence for crack cocaine, rather than the more
lenient maximum for marijuana. Jason, Stevie, Self, Mosley,
Ortega, JJ, Holmes, and John raise the issue of whether the
district court erred in finding the amount of drugs, for sentencing
purposes, by a preponderance of the evidence standard rather than
by instructing the jury to find the quantities beyond a reasonable
doubt, in contravention of Apprendi v. New Jersey, 530 U.S. 466
(2000).1
Stevie, Ortega, Holmes, and Jason argue additionally that the
record on appeal is insufficient, in that they have been denied
access to many of the motions that had been filed by their
codefendants.
III.
A. Pre-trial and trial errors
1 Mosley and Ortega also argue that the trial court clearly erred in its finding regarding the amount of drugs attributable to each of them for sentencing purposes. The appellants’ arguments based on the intervening U.S. Supreme Court decision of Apprendi subsumes these arguments, however, and our disposition of the Apprendi issue serves likewise to dispose of the initial arguments made by Ortega and Mosley regarding the drug amounts attributed to them in sentencing.
7 1. Sufficiency of the evidence
We review sufficiency of the evidence challenges by examining
the evidence and all reasonable inferences therefrom in the light
most favorable to the verdict, to determine whether a rational
trier of fact could have found the essential elements of the
offense beyond a reasonable doubt. Glasser v. United States, 315
U.S. 60 (1942); United States v. Willis, 6 F.3d 257, 264 (5th Cir.
1993).
The conspiracy convictions challenged by Stevie, Self, Jason,
John, Mosley, and Ortega have three requisite elements: (1)
existence of an agreement between two or more people to violate the
narcotics law, (2) knowledge of the conspiracy, and (3) voluntary
participation in the conspiracy. 21 U.S.C. § 846; United States v.
Mitchell, 31 F.3d 271, 274 (5th Cir. 1994). The agreement may be
tacit, and the jury may infer its existence from circumstantial
evidence. United States v. Gallardo-Trapero, 185 F.3d 307, 317 (5th
Cir. 1999). The defendant’s knowledge need only encompass the
essential purpose of the conspiracy. United States v. Osgood, 794
F.2d 1087, 1094 (5th Cir. 1986). The jurors may draw inferences
from familial relationships and “mere knowing presence” to support
the conspiracy conviction. United States v. Burton, 126 F.3d 666,
670 (5th Cir. 1997).
The possession with intent to distribute crack convictions
8 challenged by Stevie and John have as requisite elements (1)
knowing possession of crack cocaine, and (2) intent to distribute
it. 21 U.S.C. § 841(a)(1); United States v. Gonzalez, 79 F.3d 413,
423 (5th Cir. 1996). Proof of possession may be inferential or
circumstantial. Id.
The distribution in a protected zone convictions challenged by
Stevie, John, and Ortega require proof of (1) knowing possession of
crack cocaine, (2) within 1000 feet of a protected zone. 21 U.S.C.
§ 860; United States v. Sparks, 2 F.3d 574, 580 (5th Cir. 1993).
Stevie and John also challenge their convictions for aiding
and abetting in these drug offenses. The requisite elements are
(1) association in the criminal activity, and (2) some action to
help the activity succeed. United States v. Pedroza, 78 F.3d 179,
183 (5th Cir. 1996). Neither actual nor constructive possession of
the drugs is required. United States v. Salazar, 958 F.2d 1285,
1292 (5th Cir. 1992).
Viewing the evidence in the light most favorable to the
verdict, the testimony presented against each of the defendants, as
outlined below, appears uncontradicted and sufficient to support
the convictions:
a. Testimony of Zachery
Rather than showing that the evidence against them had been
9 contradicted or had not shown one of the requisite elements, the
defendants argue the insufficiency of the evidence by disparaging
the reliability of the testimony against them. The defendants
complain that Zachery’s uncorroborated testimony is not strong
enough to base their convictions on, because Zachery was shown to
have lied about his identity to his police handlers, and to have
been an addict who was using and selling crack during the period of
his cooperation with the police investigation.
However, “the uncorroborated testimony of an accomplice may
support a conviction if it is not incredible or otherwise
unsubstantiated on its face.” United States v. Cravero, 530 F.2d
666, 670 (5th Cir. 1976). Moreover, Zachery’s testimony was
corroborated by the testimony of other accomplice witnesses and law
enforcement agents, all of whom were subject to thorough cross-
examination. In light of this corroboration, and in the absence of
arguments by the defendants that Zachery’s testimony was incredible
on its face, we hold that Zachery’s testimony supports the
convictions.
b. Sufficiency of evidence to support Stevie’s convictions
Five witnesses testified to Stevie’s activities (that he
tested and sold methamphetamines, stored drugs in his leased house,
beat up someone to extract a drug debt, pooled money with Jason to
10 buy one pound of methamphetamines, divided and processed drugs,
delivered drugs, ordered payment of a crack debt, vandalized
Zachery’s car in revenge for a drug debt, and sold crack in
controlled buys). Additionally, Stevie was watched and tape
recorded by police during the controlled buys. Officer Cogwell
corroborated the occurrence of the controlled buys and Stevie’s
participation in them. Maps generated using aerial photographs
show that the stash house was within 1000 feet of two public
playgrounds and a school. This evidence is sufficient to meet the
elements of Stevie’s convictions on conspiracy, possession with
intent to distribute, and distribution within 1000 feet of a
protected zone.
c. Sufficiency of evidence to support Self’s conspiracy
conviction
Four witnesses testified regarding the relationship between
Self and Holmes (that Self was Holmes’s cousin, that he delivered
crack to Holmes and had crack picked up for delivery to Holmes,
that he was seen with Holmes during drug transactions, that he and
Holmes alternately would fulfill drug orders for customers). Self
argues that some of the testimony regarded extrinsic acts; the
government contends that this evidence was expressly admitted for
the legitimate purpose of showing the formation of the conspiracy,
11 identity of the conspirators, relationship of the conspirators, and
duration of the conspiracy. See United States v. Lokey, 945 F.2d
825, 834 (5th Cir. 1991). We agree with the government’s
contention, and hold that the testimony against Self was sufficient
to support his convictions.
d. Sufficiency of evidence to sustain Jason’s conspiracy
Three law enforcement agents testified that they observed
Jason direct a confidential informant to Holmes in order to
purchase crack. One witness testified that Jason tried to recruit
him into the drug ring. Other witnesses testified that Jason had
others store drugs for him, that he delivered drugs for his co-
conspirators, that he picked up drugs from suppliers listed in the
indictment, that he beat up and had others beat up drug debtors,
that he referred potential buyers to his co-conspirators, that he
divided and processed drugs, and that he directed others to deliver
drugs. This testimony was sufficient to sustain Jason’s
e. Sufficiency of evidence to sustain John’s convictions
Six witnesses testified that John sold marijuana. Two
12 testified that he delivered the marijuana on behalf of his brother
Jason. Zachery testified that John sold him crack in two controlled
buys within 1000 feet of an elementary school. This testimony is
sufficient to sustain John’s convictions.
f. Sufficiency of evidence to support Mosley’s conspiracy
One witness, corroborated by telephone records for the hotel
room phone where Mosley was staying and for his pager, testified
that he made two deliveries to Mosley of crack cocaine. This
corroborated testimony is sufficient to support Mosley’s
g. Sufficiency of evidence to support Ortega’s convictions
Evidence showed that one of the stash houses, used for
storage, manufacture, and distribution of crack and
methamphetamine, was leased to and maintained by Ortega. Zachery,
corroborated by tape recordings, testified to a controlled buy
involving Ortega. The aerial maps reveal that the site of the buy
was within 1000 feet of a protected zone. Another controlled buy
was testified to by the informant and by a police officer. This
evidence was sufficient to support Ortega’s convictions.
13 2. Holmes’s double jeopardy argument
Holmes argues that he was subjected to double jeopardy because
the federal and state prosecutions against him were intertwined
such that the state prosecution was a “sham prosecution” that
should bar the federal prosecution. See United States v. Paul, 853
F.2d 308 (5th Cir. 1988). Holmes had pleaded guilty in state court
to one of the actions charged as an overt act in his federal
conspiracy charge. He argues that the testimony in his federal
prosecution of Officer Cogwell, a state law enforcement officer,
and the testimony of the confidential informants used by Officer
Cogwell in his local investigation, showed that the federal and
state investigations were impermissibly intertwined. The
government argues that a defendant may be prosecuted by dual
sovereigns when his actions violate the laws of each. See Heath v.
Alabama, 474 U.S. 82, 89-90 (1985). Holmes has the burden of
proving a prima facie double jeopardy claim, and we review the
district court’s factual findings for clear error. United States
v. McKinney, 53 F.3d 664, 676 (5th Cir. 1995).
The district court found that there was no evidence of
collusion between the federal and state authorities sufficient to
meet Holmes’s prima facie burden. Joint federal/state cooperation
is permissible and does not automatically trigger the sham
prosecution rule. United States v. Moore, 958 F.2d 646, 650 (5th
14 Cir. 1992). Holmes must show not just that the two sovereigns
shared resources, but that one of them dominated or controlled the
prosecution of the defendant by the other. Id. Holmes never
showed that a federal agent participated in his state court plea
bargain. Thus, he has not shown clear error in the district
court’s finding that he had not proven a prima facie case of a sham
prosecution.
3. Stevie’s challenge to jury composition/trial venue
We review a trial court’s exercise of substantial discretion
regarding venue change and issues regarding pretrial publicity for
abuse of that discretion. United States v. Parker, 877 F.2d 327,
330 (5th Cir. 1989).
Stevie contends that the jurors must have been prejudiced by
pretrial publicity. The McKinney Courier Gazette ran two front-
page stories regarding the arrests of the alleged drug
conspirators, picturing Stevie on the front page and identifying
him as one of the leaders of the conspiracy (a retraction was later
printed on the interior of the newspaper regarding Stevie being a
leader of the conspiracy). McKinney is in Collin County, one of
seven counties from which members for the jury venire were
selected. Stevie argues, with no record support, that one-third of
the jurors were from Collin County.
15 The court asked the jury panel (1) if any of them had heard of
the case, (2) if any of them subscribed to the McKinney Courier-
Gazette, (3) if any of them subscribed to any McKinney newspapers.
No venire-member answered affirmatively. One venire-person
admitted that he would be prejudiced because of publicity regarding
a heroin problem in Plano, and was dismissed. Stevie’s counsel,
when given the opportunity, asked no further questions of the panel
members. He did not object when the jury was empaneled.
Pretrial publicity can be harmful only when the publicity has
so saturated the community that the inability to obtain a fair jury
can be presumed. United States v. Williams, 523 F.2d 1203, 1208
(5th Cir. 1975). Otherwise, the defendant must prove actual
prejudice. United States v. Partin, 552 F.2d 621, 640 (5th Cir.
1977). The responses of the jury venire indicate no actual
prejudice resulting from the two newspaper stories. Therefore, we
hold that the district court did not abuse its discretion in
neither omitting Collins County citizens from the jury nor
transferring venue.
4. Stevie’s motion to suppress audio tapes/transcripts
Admission of evidence is reviewed for abuse of discretion.
United States v. Thompson, 130 F.3d 676, 683 (5th Cir. 1997). We
will reverse the district court’s decision to admit evidence only
16 when it has relied on an incorrect view of the law or a clearly
erroneous factual finding. Id. The government has the burden of
laying the foundation for the accuracy of the tape recordings; once
the foundation has been laid, Stevie has the burden of proving
their inaccuracy. United States v. Polk, 56 F.3d 613, 631 (5th Cir.
1995). When a participant in a taped conversation testifies that
the transcript of the conversation is accurate, the foundation for
admission has been established. United States v. Rochan, 563 F.2d
1246, 1251 (5th Cir. 1997).
Stevie complains that the recordings resulting from the taping
of Zachery’s controlled buys were unintelligible, and that the
transcripts were unreliable. The district court had found that
portions of the tapes were unintelligible, but cited Fifth Circuit
precedent that this would not render the tapes unreliable “unless
these portions [we]re so substantial as to render the recording as
a whole untrustworthy, and that is a determination that is left to
the sound discretion of the trial judge.” United States v.
Mendoza, 574 F.2d 1373, 1378 (5th Cir. 1978). Zachery testified
that he spent more than eleven hours reviewing the tapes and the
transcripts, and testified that, based on his review, the
transcripts were accurate. This establishes the government’s
burden of authentication, which Stevie does not counter by
identifying any particular inaccuracies. His complaint about the
unintelligibility of certain portions does not affect the
17 admissibility of the tapes and transcripts, but only affects the
weight the jury might have accorded those tapes and transcripts
during their deliberations. We hold, therefore, that the district
court did not abuse its discretion in admitting the tapes and
transcripts.
5. Ortega’s challenge to the admissibility of evidence
surrendered to police
This evidentiary ruling is reviewed for abuse of discretion.
United States v. Haese, 162 F.3d 359, 364 (5th Cir. 1998). Ortega
argues that his conviction resulted from the introduction into
evidence cocaine seized from a rental car. This argument is
without merit. Another co-conspirator had a rental car
repossessed. At the car dealership, the dealership employees found
crack and powder cocaine secreted in the trunk compartment, called
police and surrendered it to them. The dealership employees were
acting as the private owners of the car, not at the behest of the
government, so the Fourth Amendment protections do not apply here
to protect Ortega. See, e.g., United States v. King, 55 F.3d 1193,
1196 (6th Cir. 1995). Moreover, the cocaine surrendered by the
dealership to the police was not used as an exhibit against Ortega,
nor was he implicated in the indictment or the trial proof with the
cocaine found in the rental car. His conviction was supported with
18 the cocaine surrendered by Zachery after the controlled buy.
Therefore, Ortega’s complaint regarding the seizure of this
evidence is without merit.
6. Self’s challenge to admission of acts occurring prior to the
time of the indictment
Self did not object at the time of the introduction of the
evidence of crack sales prior to 1992, so his challenge to this
admission is reviewed only for plain error. United States v.
Vesich, 724 F.2d 451, 462 (5th Cir. 1984). We reverse for plain
error only if “(1) there was error (2) that was clear and obvious
and (3) that affected a defendant’s substantial rights.” United
States v. Dupre, 117 F.3d 810, 817 (5th Cir. 1997).
Self contends that the admission of testimony by two of his
co-conspirators that he cooked down powder cocaine into crack and
distributed it to others prior to 1992, the time identified in the
indictment as the commencement of the conspiracy, violated Federal
Rule of Evidence 404(b). The government argues that the testimony
was admitted to show Self’s role in the conspiracy, how the
conspiracy was structured, and how the co-conspirators were
introduced to each other. See Lokey, 945 F.2d at 834. When the
evidence assists the jury by explaining the context, set-up, or
motive of the charged crime, or forms “an integral and natural part
19 of an account of the crime,” it is not extrinsic and excludable
under 404(b). United States v. Campbell, 49 F.3d 1079, 1084 (5th
Cir. 1995). Here, the district court did not commit plain error in
admitting the testimony.
7. Jason’s Daubert challenge to the testimony regarding nature of
seized substances
Jason did not object at trial to the testimony of, nor seek
cross-examination on the qualifications of, the forensic chemist
who tested and identified the seized drugs as methamphetamines.
Therefore, we review his Daubert challenge for plain error.
Rushing v. Kansas City Southern Ry. Co., 185 F.3d 496, 506 (5th Cir.
1999).
The chemist testified regarding her experience,
qualifications, and the specific tests she conducted in identifying
the substance at issue. The results of those tests, in addition to
her testimony, were admitted without objection or challenge on
cross-examination. There is no clear and obvious error in the
district court’s decision to admit this testimony.
B. Sentencing issues
1. JJ’s and Jason’s challenge to sentence based on general
20 verdict form
JJ and Jason contend that, because the general verdict form
did not specify which of the four drugs listed in the indictment
their conspiracy charges were based on, they should be re-sentenced
based only on the statutory maximum for the most lenient drug
involved, marijuana. See Edwards v. United States, 523 U.S. 511
(1998). They did not raise this issue in the district court, so we
review it for plain error. United States v. Brooks, 166 F.3d 723,
725 (5th Cir. 1999).
Our court has interpreted Edwards to mean that, where none of
the evidence presented could suggest that the defendant was
involved in just one object-offense to the exclusion of other, more
serious object-offenses, “the sentencing court can still conclude
that the jury found, beyond a reasonable doubt, guilt for more than
just one object-offense.” United States v. Green, 180 F.3d 216,
226-27 (5th Cir. 1999). Here, there was testimony presented at
trial that the conspiracy that JJ and Jason were alleged to be
involved in processed, stored, and distributed cocaine, crack
cocaine, methamphetamines, and marijuana. Neither JJ nor Jason
point to any evidence that suggests their involvement in the
conspiracy was limited only to the distribution of marijuana.
Therefore, we find their Edwards claims to be without merit.
21 2. Stevie’s challenge to the non-application of the “safety
valve” provision
The “safety valve” provision allows for relief from the
otherwise applicable mandatory minimum sentence if the defendant
proves (1) he does not have more than one criminal history point,
(2) he did not use violence or threats of violence in connection
with the offense, (3) the offense did not result in death or
serious bodily injury to another, (4) he was not a leader or
organizer in the offense, and (5) he truthfully provided all
information and evidence to the government concerning the offense.
18 U.S.C. § 3553(f). A court’s decision not to apply this
provision is reviewed for clear error. United States v. Flanagan,
80 F.3d 143, 145 (5th Cir. 1996).
Stevie argues that he attempted to fulfill the last
requirement, providing information to the government, but that the
government refused to speak with him, and that he should not be
punished for the government’s refusal. The government counters
that it had an appointment to speak with Stevie, Stevie moved the
appointment, then on the day of the rescheduled appointment he
canceled it. Therefore, the government contends it was not at
fault in Stevie’s inability to fulfill the final safety valve
provision requirement. Moreover, as the government points out,
Stevie did not fulfill the other requirements for application of
22 the safety valve. The evidence demonstrates that he beat up one
drug debtor and vandalized the car of another, constituting the use
or threat of violence in commission of the offense. Also, Stevie
received criminal history points at sentencing for obstructing
justice. In light of these facts, the court’s refusal to apply the
safety valve provision was not clearly erroneous.
3. Holmes’s challenge to finding that he was a “leader”
Holmes’s sentencing guideline level was increased four levels
by the finding that he was a leader of the conspiracy. U.S.S.G. §
3b1.1(a). The district court’s application of the sentencing
guidelines is given great deference. United States v. Goynes, 175
F.3d 350, 353 (5th Cir. 1999). We review factual findings for clear
error, and the application of the guidelines de novo. Id.
Holmes’s challenge to the finding that he was a “leader”
consists entirely of his assertion that the evidence was
insufficient to support the finding. The evidence supporting this
finding includes (1) testimony regarding weekly purchases of seven
pounds of marijuana by Holmes during 1992, (2) testimony regarding
pooled money between Holmes and Jason for purposes of operating the
drug conspiracy, (3) testimony regarding payment of money to five
individuals to pick up, store, and transport drugs for him, and (4)
testimony from various accomplices that Holmes ordered transfers of
23 drugs, that he divided and processed drugs, and that he recruited
people into the organization. Holmes’s assertion to the contrary
is not sufficient to convince us that the district court’s finding
that Holmes was a leader was clearly erroneous.
4. Apprendi challenge
Jason, Stevie, Self, Mosley, JJ, Ortega, Holmes, and John
argue that their sentences should be vacated because the jury did
not find the quantity of controlled substances used in determining
their sentences beyond a reasonable doubt. “Other 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 v. New Jersey, 530
U.S. 466, 490 (2000). Pursuant to Apprendi, we have found drug
quantity to be an element of the offense that “should be expressly
stated by the district court in its instructions to the jury as an
element which must be found beyond a reasonable doubt.” United
States v. Slaughter, 238 F.3d 580, 583 (5th Cir. 2000) (citing
United States v. Keith, 230 F.3d 784 (5th Cir. 2000); United States
v. Doggett, 230 F.3d 160 (5th Cir. 2000); United States v. Meshack,
225 F.3d 556 (5th Cir. 2000), on reh’g, 244 F.3d 367, 2001 WL 224656
(March 7, 2001)).
However, we have read Apprendi narrowly, such that the
24 omission of drug quantities from jury instructions will only rise
to the level of an Apprendi error if the drug quantity finding by
the sentencing judge increases the defendant’s sentence beyond the
statutory maximum. Slaughter, 238 F.3d at 583 (“[A] fact used in
sentencing that does not increase the penalty beyond the statutory
maximum for the crime charged and proven need not be alleged in the
indictment and proved to a jury beyond a reasonable doubt.”).
Regarding drug possession charged pursuant to the quantity-specific
sections 841(b)(1)(A) and (B), we will “construe[] the jury’s
guilty verdict as authorizing a sentence pursuant to the statutory
range contained in § 841(b)(1)(C),” which establishes a lower
sentencing range without reference to specified drug quantities.
Slaughter, 238 F.3d at 582-83.
The statutory maximum sentence provided by section
841(b)(1)(C)–which applies to the defendants’ possession with
intent to distribute controlled substances counts and to their
conspiracy counts–is 20 years imprisonment and at least 3 years
supervised release. 21 U.S.C. § 841(b)(1)(C). Self’s prior
criminal history increases his maximum sentence for possession with
intent to distribute to 30 years imprisonment and at least 6 years
supervised release. Id. Without enhancing for quantity of drugs,
the statutory maximum for distribution in a protected zone–of which
Stevie, John, JJ, Ortega, Holmes, and Jason were found guilty–is 40
years imprisonment and at least 6 years supervised release. 21
25 U.S.C. § 860.
In this case, none of the defendants objected during trial to
the omission of an instruction to the jury to determine the amount
of drugs involved in the conspiracy and possession with intent to
distribute charges. Therefore, we review the omission of a drug
quantity instruction, raised here for the first time on appeal, for
plain error. Under the plain error standard,
before an appellate court can correct an error not raised
at trial, there must be (1) error, (2) that is plain, and
(3) that affects substantial rights. If all three
conditions are met, an appellate court may then exercise
its discretion to notice a forfeited error, but only if
(4) the error seriously affects the fairness, integrity,
or public reputation of judicial proceedings.
Johnson v. United States, 520 U.S. 461, 466-67 (1997) (citations,
alterations, and internal quotations omitted). An error affects
“substantial rights” when it alters the outcome of the judicial
proceedings. United States v. Olano, 507 U.S. 725, 734 (1993).
If an Apprendi error rises to the level of plain error, we
must examine it further to determine if that error is harmless.
United States v. Green, — F.3d —, —, 2001 WL 290041, *4 (5th Cir.
March 26, 2001); Slaughter, 238 F.3d at 583-84 (5th Cir. 2000); see
26 also Neder v. United States, 527 U.S. 1, 9-10 (1999) (holding that
the omission of an element of an offense from the jury charge must
be reviewed for harmlessness). An Apprendi error is not harmless
if “the record contains evidence that could rationally lead to a
contrary finding with respect to the omitted element.” Neder, 527
U.S. at 19.
Here, Stevie, John, JJ, Ortega, and Self have not shown that
the finding of drug quantities by the sentencing judge by a
preponderance of the evidence–rather than by the jury beyond a
reasonable doubt–enhanced their sentences beyond the statutory
maximum. These defendants received sentences within the statutory
range, considering each defendant’s prior criminal history.2
Because none of these defendants’ sentences exceeded the statutory
maximum, we find that there was no Apprendi error in the district
court’s failure to instruct the jury to determine the drug
quantities beyond a reasonable doubt. Slaughter, 238 F.3d at 583.
However, Mosley’s, Jason’s, and Holmes’s actual sentences
2 Following are each defendant’s actual sentence, with the statutory maximum for that defendant in parentheses, making allowance for prior criminal history but without factoring in enhancements for drug quantities: Stevie, 120 months imprisonment/6 years supervised release (240 months imprisonment/10 years supervised release); John, 120 months imprisonment/6 years supervised release (240 months imprisonment/10 years supervised release); JJ, 240 months imprisonment/10 years supervised release (240 months imprisonment/10 years supervised release); Ortega, 292 months imprisonment/6 years supervised release (480 months imprisonment/6 years supervised release); Self, 292 months imprisonment/5 years supervised release (480 months imprisonment/5 years supervised release).
27 exceeded the statutory maximums in 21 U.S.C. §§ 841(b)(1)(C) and
860: Although Mosley’s 240-month prison term was within the
statutory maximum, his 10-year term of supervised release was
beyond the maximum of 6 years. Holmes’s and Jason’s life terms
were enhanced beyond the maximum provided by 21 U.S.C. §§
841(b)(1)(C) and 860 to the maximum of life imprisonment provided
by 21 U.S.C. § 841(b)(1)(A) due to the drug quantity found by the
sentencing judge by a preponderance of the evidence. However,
assuming these Apprendi errors to be plain, we are compelled to
find that they are harmless under the Neder standard used by this
court in similar cases involving drug quantity Apprendi errors.
See Green, — F.3d at —, 2001 WL 290041 at *4; Slaughter, 238 F.3d
at 583-84.
Upon a review of the record, our analysis from Green appears
equally applicable here:
We have reviewed the record of this case and are
convinced that it contains no evidence that could
rationally lead to a conclusion contrary to the charge
that [the defendants were] involved in a conspiracy
involving at least the amount of drugs specifically
charged in the indictment. At trial, there was
extensive, detailed, and uncontroverted testimony
regarding the scope of the alleged conspiracy and the
28 quantities of the various drugs involved therein.
As was the case in Slaughter, the jury had with it
during deliberations a copy of the indictment setting
forth the specific quantities of drugs which would
support the sentence imposed by the district court.
Furthermore, the district court explicitly instructed as
part of the first conspiracy element that the jury must
find that [the defendants] agreed to commit the crime of
distribution of the named drugs ‘as charged in the
indictment.’ The relevant conspiracy count in [the
defendants’] indictment included the specific quantities
of drugs supporting the district court’s sentence, and we
conclude that implicit in the jury’s finding on the first
element is also a finding of the specific quantities
charged in the indictment.
Green, — F.3d at —, 2001 WL 290041 at *4. Similarly, here the
trial court instructed the jury to “first determine, from all of
the testimony and evidence in the case, whether or not the
conspiracy existed as charged.” The indictment, which the jury had
during their deliberations, contained a detailed description of the
conspiracy, including specific drug quantities. In the absence of
evidence on the record indicating that drug quantities different
from those alleged in the indictment were involved, we must find
29 that any Apprendi error was harmless.3 The conspiracy and
possession charges in the indictment referred to specific drug
quantities, which were testified to during the trial. While the
defendants attempted to contest their personal involvement in the
conspiracy and drug possession charges, they at no point offered
evidence or testimony controverting the amounts of drugs involved.
C. Sufficiency of record on appeal
The defendants also argue that the record on appeal does not
include all the motions filed during the trial by their
codefendants, and that their representation on appeal is therefore
inadequate. The government counters that all motions were listed
on the docket sheet, and that each of the defendants were given the
3 However, we do not hold, as the Green court did, that the jury implicitly found the drug quantities stated in the indictment. Though the inclusion of the specific drug quantities in the indictment and the instruction to the jury to first find that the conspiracy existed “as charged,” in combination with the dearth of evidence indicating drug quantities contrary to those charged in the indictment, compel a holding that the Apprendi errors here are harmless under Neder, they cannot support a holding that the jury made an implicit finding of drug amounts such that there was no Apprendi error. Here, the trial court instructed the jury that “[t]he evidence in this case need not establish that a particular amount or quantity of [controlled substances] was involved, as alleged in the Indictment, but only that some amount of [controlled substances] was in fact the subject of the acts charged in the Indictment.” Even under the narrow reading of Apprendi adopted in this Circuit, such an instruction is plain Apprendi error when the drug amounts were subsequently used to enhance the defendants’ sentences. Therefore, we only hold that such error, in this case, was harmless.
30 opportunity to supplement the record by requesting that any motion
listed on the docket sheet be included in the record. In this
light, and because defendants have the burden to create the record
on appeal, United States v. Myers, 198 F.3d 160, 168 (5th Cir.
1999), we find no merit in this argument.
IV.
For the foregoing reasons, the convictions and sentences of
the defendants are AFFIRMED.