IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT _______________
No. 95-40238 Summary Calendar _______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
RODNEY PIPPENS,
Defendant-Appellant.
* * * * * * * * * * * * * * * * * * * *
_______________
No. 95-40239 Summary Calendar _______________
RAYMOND JENKINS,
_________________________
Appeals from the United States District Court for the Eastern District of Texas _________________________ September 22, 1995 Before KING, SMITH, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Rodney Pippens and Raymond Jenkins appeal the sentences they
received following their respective pleas of guilty of possession
of crack cocaine with intent to distribute in violation of
21 U.S.C. § 841(a)(1). Finding no error, we affirm.
I.
The Plano police department conducted an investigation in-
volving the sale of crack cocaine out of a residence at 1501
Francis Lane. Between April and August 1994, undercover police
officer Paul Cogwell frequented the house and purchased crack
cocaine from a variety of individuals, including Pippens and
Jenkins.
Pippens pleaded guilty to one count of possession of crack
cocaine with intent to distribute. Originally, the probation
officer preparing Pippens's presentence report ("PSR")
recommended holding him responsible for the 18.93 grams of crack
cocaine purchased by Cogwell during the conspiracy. The
government objected to the amount, arguing that Pippens should be
held accountable for the 59.25 grams of crack cocaine seized from
Jenkins, Christopher Taylor, and Chester Dumas on August 25,
* Local Rule 47.5.1 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well- settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that rule, the court has determined that this opinion should not be published.
2 1994. Pippens objected to the 18.93 grams, arguing that he
should not be held responsible for any transactions that occurred
between July 6 and August 6 and after August 16 because he was in
custody during those periods. The probation officer amended the
PSR to recommend holding Pippens responsible for the original
18.93 grams plus the 59.25 grams seized on August 25, for a total
of 78.18 grams.
At the sentencing hearing, Pippens objected to the quantity
of crack cocaine attributed to him, specifically challenging the
recommendation that he be held responsible for the 59.25 grams
from the August 25 transaction. The district court determined
that, even without holding Pippens responsible for the August 25
transaction, there was sufficient evidence that more than fifty
grams was sold from the house during the pendency of the
conspiracy and overruled the objection.
Jenkins also pleaded guilty to one count of possession of
crack cocaine with intent to distribute. The probation officer
preparing his PSR recommended holding Jenkins responsible for the
same 78.18 grams of cocaine. Jenkins objected to the quantity of
crack cocaine attributed to him. He contended that the 59.25
grams in his possession on August 25 cannot be relevant conduct
because that crack cocaine was not related to the count of
conviction. The district court overruled his objections because
it found that Jenkins was responsible for the sale or
distribution of at least fifty grams.
3 II.
A.
Pippens argues that the district court improperly attributed
more than fifty grams of crack cocaine to him because there is
insufficient evidence to support that quantity. We uphold a
district court's factual findings regarding the determination of
a defendant's relevant conduct unless they are clearly erroneous.
United States v. Puig-Infante, 19 F.3d 929, 942 (5th Cir.), cert.
denied, 115 S. Ct. 180 (1994).
At the sentencing hearing, Cogwell testified that during the
period between April and August 1994, he made 114 drug buys at
the Francis Lane residence. He estimated that during this
period, approximately 40 or 50 sales of crack cocaine occurred
per day at the house and that one dosage of crack cocaine was 1.5
grams. Conservatively estimating only four sales of one-tenth
gram per day during the conspiracy, Cogwell testified that more
than fifty grams of crack cocaine were sold from the house during
the conspiracy.
Pippens was an active participant in the conspiracy and even
bragged that he was selling crack cocaine while he was supposed
to be under house arrest. The district court properly concluded
that Pippens was responsible for more than fifty grams of crack
cocaine. See United States v. Sherrod, 964 F.2d 1501, 1507 (5th
Cir.) (holding that district court may include estimates of
quantity of drugs for sentencing purposes), cert. denied, 113 S.
Ct. 832, 834 (1992) and 113 S. Ct. 1367, 1422, 1834 (1993).
4 Pippens argues that, even if there is sufficient evidence to
support the finding that he was responsible for more than fifty
grams of crack cocaine, he did not have adequate notice that the
district court would consider Cogwell's testimony. A defendant
must receive notice of any facts that may affect his sentence and
a meaningful opportunity to respond. FED. R. CRIM. P. 32(a)(1);
United States v. George, 911 F.2d 1028, 1029 (5th Cir. 1990).
Under FED. R. CRIM. P. 32, the district court may base sentencing
decisions on matters outside the PSR if the defendant is given an
opportunity to address the issue. George, 911 F.2d at 1029.
Pippens received notice, in the addendum to the PSR and the
revised PSR, that the government sought to hold him responsible
for more than fifty grams of cocaine, and more specifically, for
all of the crack cocaine sold as part of the conspiracy. He also
was given an opportunity to cross-examine Cogwell. Pippens
received adequate notice under rule 32. See id., 911 F.2d at
1029.
B.
Jenkins argues that the district court made insufficient
findings of fact during the sentencing hearing in violation of
FED. R. CRIM. P. 32(c)(3)(D). If the defendant objects to the
findings of fact in the PSR, the district court must resolve the
specifically-disputed issues of fact if it intends to rely upon
those facts at sentencing. United States v. Smith, 13 F.3d 860,
867 (5th Cir.), cert. denied, 114 S. Ct. 2151 (1994). In
5 complying with rule 32, the court may accept the facts in the PSR
even if they are in dispute. United States v. Mora, 994
F.2d 1129, 1141 (5th Cir.), cert. denied, 114 S. Ct. 417 (1993).
At sentencing, Jenkins objected to the inclusion of the
crack cocaine seized during his August 25 arrest. The district
court overruled the objection and adopted the findings of the
PSR.
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT _______________
No. 95-40238 Summary Calendar _______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
RODNEY PIPPENS,
Defendant-Appellant.
* * * * * * * * * * * * * * * * * * * *
_______________
No. 95-40239 Summary Calendar _______________
RAYMOND JENKINS,
_________________________
Appeals from the United States District Court for the Eastern District of Texas _________________________ September 22, 1995 Before KING, SMITH, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Rodney Pippens and Raymond Jenkins appeal the sentences they
received following their respective pleas of guilty of possession
of crack cocaine with intent to distribute in violation of
21 U.S.C. § 841(a)(1). Finding no error, we affirm.
I.
The Plano police department conducted an investigation in-
volving the sale of crack cocaine out of a residence at 1501
Francis Lane. Between April and August 1994, undercover police
officer Paul Cogwell frequented the house and purchased crack
cocaine from a variety of individuals, including Pippens and
Jenkins.
Pippens pleaded guilty to one count of possession of crack
cocaine with intent to distribute. Originally, the probation
officer preparing Pippens's presentence report ("PSR")
recommended holding him responsible for the 18.93 grams of crack
cocaine purchased by Cogwell during the conspiracy. The
government objected to the amount, arguing that Pippens should be
held accountable for the 59.25 grams of crack cocaine seized from
Jenkins, Christopher Taylor, and Chester Dumas on August 25,
* Local Rule 47.5.1 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well- settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that rule, the court has determined that this opinion should not be published.
2 1994. Pippens objected to the 18.93 grams, arguing that he
should not be held responsible for any transactions that occurred
between July 6 and August 6 and after August 16 because he was in
custody during those periods. The probation officer amended the
PSR to recommend holding Pippens responsible for the original
18.93 grams plus the 59.25 grams seized on August 25, for a total
of 78.18 grams.
At the sentencing hearing, Pippens objected to the quantity
of crack cocaine attributed to him, specifically challenging the
recommendation that he be held responsible for the 59.25 grams
from the August 25 transaction. The district court determined
that, even without holding Pippens responsible for the August 25
transaction, there was sufficient evidence that more than fifty
grams was sold from the house during the pendency of the
conspiracy and overruled the objection.
Jenkins also pleaded guilty to one count of possession of
crack cocaine with intent to distribute. The probation officer
preparing his PSR recommended holding Jenkins responsible for the
same 78.18 grams of cocaine. Jenkins objected to the quantity of
crack cocaine attributed to him. He contended that the 59.25
grams in his possession on August 25 cannot be relevant conduct
because that crack cocaine was not related to the count of
conviction. The district court overruled his objections because
it found that Jenkins was responsible for the sale or
distribution of at least fifty grams.
3 II.
A.
Pippens argues that the district court improperly attributed
more than fifty grams of crack cocaine to him because there is
insufficient evidence to support that quantity. We uphold a
district court's factual findings regarding the determination of
a defendant's relevant conduct unless they are clearly erroneous.
United States v. Puig-Infante, 19 F.3d 929, 942 (5th Cir.), cert.
denied, 115 S. Ct. 180 (1994).
At the sentencing hearing, Cogwell testified that during the
period between April and August 1994, he made 114 drug buys at
the Francis Lane residence. He estimated that during this
period, approximately 40 or 50 sales of crack cocaine occurred
per day at the house and that one dosage of crack cocaine was 1.5
grams. Conservatively estimating only four sales of one-tenth
gram per day during the conspiracy, Cogwell testified that more
than fifty grams of crack cocaine were sold from the house during
the conspiracy.
Pippens was an active participant in the conspiracy and even
bragged that he was selling crack cocaine while he was supposed
to be under house arrest. The district court properly concluded
that Pippens was responsible for more than fifty grams of crack
cocaine. See United States v. Sherrod, 964 F.2d 1501, 1507 (5th
Cir.) (holding that district court may include estimates of
quantity of drugs for sentencing purposes), cert. denied, 113 S.
Ct. 832, 834 (1992) and 113 S. Ct. 1367, 1422, 1834 (1993).
4 Pippens argues that, even if there is sufficient evidence to
support the finding that he was responsible for more than fifty
grams of crack cocaine, he did not have adequate notice that the
district court would consider Cogwell's testimony. A defendant
must receive notice of any facts that may affect his sentence and
a meaningful opportunity to respond. FED. R. CRIM. P. 32(a)(1);
United States v. George, 911 F.2d 1028, 1029 (5th Cir. 1990).
Under FED. R. CRIM. P. 32, the district court may base sentencing
decisions on matters outside the PSR if the defendant is given an
opportunity to address the issue. George, 911 F.2d at 1029.
Pippens received notice, in the addendum to the PSR and the
revised PSR, that the government sought to hold him responsible
for more than fifty grams of cocaine, and more specifically, for
all of the crack cocaine sold as part of the conspiracy. He also
was given an opportunity to cross-examine Cogwell. Pippens
received adequate notice under rule 32. See id., 911 F.2d at
1029.
B.
Jenkins argues that the district court made insufficient
findings of fact during the sentencing hearing in violation of
FED. R. CRIM. P. 32(c)(3)(D). If the defendant objects to the
findings of fact in the PSR, the district court must resolve the
specifically-disputed issues of fact if it intends to rely upon
those facts at sentencing. United States v. Smith, 13 F.3d 860,
867 (5th Cir.), cert. denied, 114 S. Ct. 2151 (1994). In
5 complying with rule 32, the court may accept the facts in the PSR
even if they are in dispute. United States v. Mora, 994
F.2d 1129, 1141 (5th Cir.), cert. denied, 114 S. Ct. 417 (1993).
At sentencing, Jenkins objected to the inclusion of the
crack cocaine seized during his August 25 arrest. The district
court overruled the objection and adopted the findings of the
PSR. These findings were sufficient to comply with rule 32.
Mora, 994 F.2d at 1141.
Jenkins also argues that the district court improperly
included as relevant conduct the 59.25 grams of crack cocaine he
possessed when he was arrested. He contends that he pleaded
guilty to a substantive count associated with the Francis Lane
conspiracy and that the 59.25 grams were not related to that
conspiracy.
We review for clear error the district court's finding that
the August 25, 1994, incident is relevant conduct. United States
v. Bryant, 991 F.2d 171, 177 (5th Cir. 1993). To determine a
defendant's base offense level, the district court may consider
relevant conduct that includes "quantities of drugs not specified
in the count of conviction if they were part of the same course
of conduct or part of a common scheme or plan as the count of
conviction." Id. (internal quotations and citation omitted); see
§ 1B1.3, comment. (n.9). Offenses that are not part of a common
scheme or plan constitute the "same course of conduct" if they
are "sufficiently connected or related to each other as to
warrant the conclusion that they are part of a single episode,
6 spree, or ongoing series of offenses." Section 1B1.3, comment.
(n.9(B)).
In drug cases, we have broadly defined what constitutes the
"same course of conduct" or "common scheme or plan." Id. To
qualify as a relevant conduct, there must be "sufficient
similarity and temporal proximity to reasonably suggest that
repeated instances of criminal behavior constitute a pattern of
criminal conduct." United States v. Bethley, 973 F.2d 396, 401
(5th Cir. 1992) (internal quotations and citation omitted), cert.
denied, 113 S. Ct. 1323 (1993).
The evidence established that Jenkins was selling crack
cocaine from the Francis Lane house and that during the pendency
of the conspiracy he was arrested in possession of 59.25 grams of
crack cocaine. Although the 59.25 grams may not have been part
of the "common scheme or plan" of the Francis Lane conspiracy,
this conduct constitutes the same course of conduct as the count
of conviction. As with the count of conviction, Jenkins
possessed the 59.25 grams of crack cocaine with the intent to
distribute it. See United States v. Hernandez-Palacios, 838
F.2d 1346, 1349 (5th Cir. 1988) (holding that court may infer
intent to distribute from proof of possession of a large quantity
of drugs). The district court properly considered the 59.25
grams of crack cocaine in determining relevant conduct.
AFFIRMED.