UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 96-20096 __________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DERRICK ANTHONY THOMAS; RONALD HARMON; ELLUARD J. JACKSON; THADDIUS CHRISTOPHER GOINS, also known as Cricket,
Defendants-Appellants.
______________________________________________
Appeals from the United States District Court for the Southern District of Texas ______________________________________________ August 19, 1997
Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:
This direct criminal appeal involves four appellants who were
convicted of conspiracy to possess with intent to distribute
cocaine base and a substantive count of possession with intent to
distribute cocaine base. The appellants make various challenges to
their convictions, including: alleged violations of the Fourth
Amendment, insufficient evidence to sustain their convictions, and
evidentiary error. Goins and Jackson also challenge their
sentences. We affirm. I. PROCEDURAL HISTORY AND BACKGROUND
A grand jury charged Thaddius Christopher Goins (Goins),
Derrick Anthony Thomas (Thomas), Ronald Harmon (Harmon), and
Elluard Jackson (Jackson) with one count of conspiracy to possess
with intent to distribute cocaine base and one count of possession
with the intent to distribute cocaine base. 21 U.S.C. §§
841(a)(1), 841(b)(1)(A), 846 and 18 U.S.C. § 2. Prior to trial,
all four defendants moved to suppress all the evidence seized
during a search of apartment #426 at 230 Uvalde in Houston.
Specifically, the police discovered crack cocaine, drug
paraphernalia, and a firearm in the apartment.
The district court held a hearing on the defendants' motions,
and the following evidence was adduced. Based on a tip from a
confidential informant that Goins would be manufacturing crack
cocaine from powder cocaine, Houston police officers set up
surveillance of the apartment at about 10 p.m. on May 4, 1995.
Approximately an hour and a half later Harmon exited the apartment
and began driving away in a white Cadillac. The officers stopped
him because he was driving without his headlights and failed to
signal. In response to police inquiries, Harmon denied having just
left the apartment. Harmon was arrested, and a search of his
person revealed a loaded firearm in his boot.
At approximately 12:50 a.m., Thomas left the apartment and was
stopped by the police because the vehicle he was driving had
outstanding warrants. The police arrested Thomas based on those
warrants. Upon questioning, Thomas admitted there was "dope" in
2 the apartment but would not say how much. Thomas also gave the
officers conflicting responses regarding whether he lived in the
apartment. He told one officer that he had no involvement with the
apartment, and he implied to another officer that it was his
girlfriend's apartment. Further investigation after the search
revealed that Thomas's name was on the apartment lease.
After Harmon's and Thomas's departures, Goins walked out of
the apartment several times, glanced at his watch, and looked
around the apartment complex, apparently awaiting the return of
Harmon and Thomas, both of whom, unbeknownst to Goins, had been
arrested. About 1:30 a.m., Goins walked across the street to use
a pay phone outside a convenience store and was arrested on
outstanding warrants. The police found $4,800 in cash on Goins's
person. Additionally, when an officer asked Goins a question
regarding the amount of "dope" in the apartment, Goins replied
"Man, you already know what's up. Why you asking me? Why do you
think I would know how much it is?"
The officers then decided to approach the apartment and try to
obtain consent to search. Officers DeBlanc and Ong proceeded
through an open gate of a privacy fence surrounding the apartment
and knocked on the front door. Someone inside responded "come in,"
and DeBlanc knocked again and identified himself as a police
officer. Ultimately, the individual who had bid the officers "come
in" opened the door and walked away from the officers.1 From their
1 Jackson testified at the suppression hearing and offered a different version of the events. Jackson claimed the officers did not identify themselves and that they just crashed through the door
3 vantage point at the front door, the officers could see into the
kitchen. Officer DeBlanc observed cocaine on the counter, a
beaker, microwave ovens, and boxes of baking soda. At that point,
Officer DeBlanc knew he had witnessed a drug offense. Upon
entering the apartment Officer Ong conducted a protective sweep to
ascertain whether there were armed individuals present. The
officers saw Jackson seated in a chair in the living room,
apparently feigning sleep.
The officers spoke with the man who had opened the door and
discerned that he was mentally impaired and thus, could not give
consent to search. Sometime after the search, it was learned that
this man was Thomas's uncle. The officers then spoke to Jackson to
try to obtain consent to search. Jackson told the officers he was
left there to take care of the mentally impaired man. To avoid the
appearance of coercion from the influx of police officers, the
officers requested that Jackson continue the conversation in the
bedroom. Jackson did not sign the consent to search form but did
give oral consent to search. Jackson admitted that he said "Yeah,
you already in, you might as well search." At the time, Jackson
was unaware that the police taped part of the conversation. During
this conversation, Officer DeBlanc observed an open duffel bag on
the bed that contained crack cookies.
After Jackson orally consented, the officers searched the
apartment. Aside from the cocaine and paraphernalia previously
observed, the following items were seized: a semi-automatic pistol;
without being invited inside.
4 cocaine from a closet; crack cookies inside a jacket; and a plate
in a bedroom with a razor blade. It was later determined that the
bag in the bedroom contained nearly 3 kilograms of crack cocaine
cookies.
After hearing the evidence, the district court made the
following findings: there was an adequate basis to arrest Harmon
based on the officer's testimony; neither Harmon nor Goins had
standing to challenge the search of the apartment but Jackson and
Thomas did have standing; the officers reasonably believed that
Jackson, as a caretaker, had the limited authority to consent to a
search of the common areas of the apartment but not to a search of
the closets or underneath mattresses; the officers reasonably
believed that the front door of the apartment was accessible to the
public and that the uncle had consented for them to enter the
apartment; and the officers could see the contraband on the counter
top from the door. Based on these findings, the district court
suppressed the evidence, including the semi-automatic pistol,
discovered outside the common areas of the apartment and allowed
the remaining evidence.
At trial, the Government introduced evidence that earlier on
the day of the search, several officers set up surveillance of an
auto detailing shop and observed an exchange between Goins, who had
a white Cadillac, and another individual, who was driving a maroon
Oldsmobile. Upon leaving in his Oldsmobile, the individual was
stopped, and a little over $20,000 in cash and a semi-automatic
pistol were recovered from hidden compartments in the vehicle.
5 The Government also introduced the evidence from the
suppression hearing regarding the events that occurred during the
officers' surveillance and subsequent search of the apartment on
the night of May 4, 1995. The evidence seized from the apartment
was introduced before the jury. Among other things, a scale, a
metal pot, sixteen beakers, and the microwave ovens all contained
small or trace amounts of crack cocaine. One beaker contained a
cookie consisting of 24.6 grams of crack cocaine. The cookies
found in the bag in the bedroom contained 2.9 kilograms of crack
cocaine.
Officer DeBlanc testified that crack cocaine is made by mixing
baking soda and water with the powder cocaine and heating the
mixture on the stove or in the microwave. The cocaine then settles
to the bottom of the container and the adulterants or diluents rise
to the top. While still wet, the cookies are taken out of the
beaker to dry. After an hour or so, they become extremely hard.
It takes from 35 minutes to 1 hour to convert 1 kilogram of powder
cocaine into crack. Officer DeBlanc also testified that a kilogram
of cocaine costs between $17,000 and $21,000 wholesale. Street
value of a kilogram of cocaine would be in excess of $100,000. He
further testified that 2.9 kilograms of crack cocaine was an
"incredibl[y] large amount of crack cocaine" and that it would take
several individuals to cook that much cocaine because "[i]t's like
an assembly type operation." In his opinion, the cookies found in
the duffel bag had been freshly cooked.
A jury found all defendants guilty as charged, and the
6 district court imposed the following sentences: Goins, 380 months;
Thomas, 292 months; Harmon, 292 months; and Jackson, 235 months.
II. ANALYSIS
A. SUFFICIENCY OF THE EVIDENCE
Goins, Harmon, and Jackson contend that the evidence was
insufficient to sustain their convictions. When reviewing the
sufficiency of the evidence, we view all evidence, whether
circumstantial or direct, in the light most favorable to the
Government with all reasonable inferences to be made in support of
the jury's verdict. United States v. Salazar, 958 F.2d 1285, 1290-
91 (5th Cir.), cert. denied, 506 U.S. 863, 113 S.Ct. 185 (1992).
The evidence is sufficient to support a conviction if a rational
trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. Id. The evidence need not exclude
every reasonable hypothesis of innocence or be completely
inconsistent with every conclusion except guilt, so long as a
reasonable trier of fact could find that the evidence established
guilt beyond a reasonable doubt. United States v. Faulkner, 17
F.3d 745, 768 (5th Cir.), cert. denied, 513 U.S. 870, 115 S.Ct. 193
(1994).
To establish a conspiracy offense under 21 U.S.C. § 846, the
Government must establish: "1) the existence of an agreement
between two or more persons; 2) the defendant's knowledge of the
agreement; and 3) the defendant's voluntary participation in the
conspiracy." United States v. Brown, 29 F.3d 953, 958 (5th Cir.),
cert. denied, 513 U.S. 1021, 115 S.Ct. 587 (1994). To sustain a
7 conviction for the possession of crack cocaine with intent to
distribute, the Government must establish "the 1) knowing; 2)
possession of a controlled substance; 3) with the intent to
distribute it." Id.
Goins, Harmon, and Jackson argue that the evidence
demonstrated only their "mere presence" at the apartment, and thus,
the evidence was insufficient to establish their knowing
participation in either the conspiracy or the substantive offense.
We begin with examining the evidence implicating Goins. On
the day of the instant offense, several officers set up
surveillance of an auto detailing shop and observed an exchange
between Goins and another individual. Upon leaving, the individual
was stopped, and approximately $20,000 in cash and a semi-automatic
pistol were recovered from hidden compartments in the vehicle.
Later that night, the officers began surveillance of Thomas's
apartment. After Harmon's and Thomas's departure, Goins walked out
of the apartment several times and would glance at his watch and
then look around the apartment complex, apparently awaiting the
return of Harmon and Thomas, both of whom, unbeknownst to Goins,
had been arrested. Goins subsequently walked to a pay phone near
the apartment and was arrested on outstanding warrants. The police
found $4,800 in cash on Goins's person. Additionally, when an
officer made inquiries regarding drugs in the apartment, Goins made
an incriminating statement to the effect that because the police
already knew of the drug activity, they need not ask him.
The above evidence, when examined in light of the cocaine and
8 drug paraphernalia found in the apartment, would allow the jury to
conclude that Goins purchased one kilogram of cocaine from the
unidentified individual at the detail shop2 and brought it to
Thomas's apartment to "cook" it. The evidence of Goins's actions
after Harmon's and Thomas's departure would also allow the jury to
conclude that Goins anxiously awaited their return. We are
confident that the evidence of Goins's behavior, his incriminating
statement to the police, and the evidence found on Goins's person
and in the apartment demonstrate more than Goins's mere presence at
the crime scene. The evidence is sufficient to prove beyond a
reasonable doubt that Goins was a knowing member of the drug
conspiracy and that he possessed with intent to distribute the
cocaine found in the apartment.
As for Harmon, the evidence demonstrated that he was already
in the apartment at the time the police began surveillance at 10:00
p.m., and he left about an hour and a half later. Harmon was then
arrested, and a search of his person revealed a loaded handgun.
Recognizing that for drug dealers, firearms are "tools of the
trade," this Court has explained that possession of a gun is
"highly probative in proving criminal intent." United States v.
Martinez, 808 F.2d 1050, 1057 (5th Cir.), cert. denied, 481 U.S.
1032, 107 S.Ct. 1962 (1987). Also, when questioned by the officer,
Harmon denied having just left the apartment; instead, he claimed
that "he was just in the area riding around." This patently false
2 The Government introduced evidence that one kilogram of cocaine costs $20,000.
9 statement is circumstantial evidence of Harmon's guilty knowledge.
United States v. Richardson, 848 F.2d 509, 513 (5th Cir. 1988).
Also, the evidence of Goins's behavior in awaiting Harmon's return
implicates Harmon in the conspiracy. Viewed in the light most
favorable to the Government, this evidence, together with the
evidence regarding the amount of time and number of people involved
in the cooking process, is sufficient to sustain Harmon's
convictions.
Finally, we examine the evidence implicating Jackson. At the
time the police entered the apartment Jackson was the only
remaining responsible adult, and the water was "on" in the kitchen.
The officers also noticed the "pungent" odor of the recently cooked
cocaine and the cocaine and drug paraphernalia that was visible as
soon as one entered the apartment. Additionally, Jackson never
left the apartment during the time that the jury could infer the
nearly three kilograms of crack cookies were being cooked. This
evidence shows Jackson's knowledge of the crack laboratory and also
indicates that the cooking process, which required several
participants, was ongoing. As the Government points out, Jackson's
codefendants left him alone in the apartment with a small fortune
in cocaine. Although Jackson argues that he was merely present in
the apartment, we have explained that "[t]he implicit rationale
behind the `mere presence' argument is the theory that there may
often be innocent parties who on occasion unwittingly associate
with guilty parties at the scene of their criminal activity."
United States v. Martinez-Moncivais, 14 F.3d 1030, 1034 (5th Cir.),
10 cert. denied, 513 U.S. 816, 115 S.Ct. 72 (1994). Here, the crime
scene does not support Jackson's defense of unwitting association
with his codefendants. Certainly, the jury was entitled to reject
such a defense. The evidence was sufficient to sustain Jackson's
B. STANDING
Goins argues that the district court erred in finding that he
did not have standing to challenge the warrantless search of the
apartment. Goins has the burden of demonstrating that he has
standing. United States v. Wilson, 36 F.3d 1298, 1302 (5th Cir.
1994). He must show (1) an actual, subjective expectation of
privacy with respect to the place searched or things seized, and
(2) that the expectation is such that society would recognize it as
reasonable. Id. at 1302-03.
To make this showing, Goins relies on his presence in the
apartment prior to his arrest and information from a confidential
informant indicating that he had control over the apartment. The
evidence established that Goins was present at the apartment prior
to his arrest; however, contrary to Goins's assertion, the district
court did not find that Goins had control over the apartment.
Instead, the district court found that "the only information [from
the confidential informant] that Officer Campbell had was that Mr.
Goins was believed to be the custodian of the cocaine who was being
allowed to use the apartment to process the cocaine." As such,
Goins failed to make the requisite showing. The district court
properly concluded that Goins lacked standing to challenge the
11 search of the apartment.
C. CURTILAGE OF THE APARTMENT
Thomas and Jackson both argue that their Fourth Amendment
rights were violated when the officers, without a warrant, entered
through the gate of the privacy fence surrounding the apartment.
We disagree.
The Fourth Amendment extends to protect the “curtilage” of a
home from unconstitutional searches. United States v. Dunn, 480
U.S. 294, 300, 107 S.Ct. 1134, 1139 (1987). The “curtilage”
constitutes the area within which a person “reasonably may expect
that the area in question should be treated as the home itself.”
Id. In determining whether an area outside the home is curtilage,
we must consider four factors: the proximity of the area to the
home, whether it is within an enclosure surrounding the home, the
nature of the uses to which the area is put, and the steps taken by
the resident to protect the area from outside observation. Id. at
301, 107 S.Ct. at 1139. The Supreme Court explained that these
factors are not to be "mechanically applied;" instead they are
helpful to the extent they shed light on the ultimate inquiry of
“whether the area in question is so intimately tied to the home
itself that it should be placed under the home’s ‘umbrella’ of
Fourth Amendment protection.” Id. at 301, 107 S.Ct. at 1140.
In the instant case, after hearing the evidence on the motion
to suppress, the district court found that the gate was open when
the officers entered the area. The court further found there was
no indication "that [the gate] was meant to be used by any person
12 approaching that dwelling as . . . a place to which permission to
enter had to be given. It was -- the gate was hanging open.
There's no door bell there. There is no knocker there." "From the
photographs and the testimony, it appears that there was -- it was
certainly reasonable for the officers to believe the front door was
readily accessible to the general public; and it was the principal
means of access to the dwelling."
In regard to the first two factors, the proximity to the home
and whether the area was within an enclosure surrounding the home,
there was testimony that a fence surrounded the apartment and that
it was approximately three feet away from the door of the
apartment. Those two factors weigh in favor of the appellants.
The next two factors, the nature of the uses to which the area is
put and the steps taken by the resident to protect the area from
outside observation, strongly indicate that the area is not
curtilage. As found by the district court, the gate was left
hanging open, and the resident had not taken any steps to indicate
that the gate was an entry to a place that permission had to be
given to enter. Because there is evidence to support those
findings, they are not clearly erroneous.
Based on those findings, the district court properly concluded
that the officers could reasonably believe that the gate provided
the principal means of access to the apartment, through which they
could approach the front door. See United States v. James, 40 F.3d
850, 862 (7th Cir. 1994), modified on other grounds, 79 F.3d 553
(7th Cir. 1996). Under these circumstances, the police did not
13 violate the Fourth Amendment by approaching the front door.
D. CONSENT TO SEARCH
Thomas and Jackson challenge the validity of the consent
obtained to enter and search the apartment. They first argue that
because the officers failed to identify themselves as police, they
could not have reasonably believed that anyone opening the door was
consenting to the police entering the apartment. Contrary to the
appellants' position, the district court credited the following
testimony of Officer DeBlanc, who testified that he did announce
"police" and that "after the first two knocks, each time a voice
from the inside of the apartment told them to come in." The court
also credited Officer DeBlanc's testimony that, after the third
knock, a person opened the door from the inside and immediately
walked away, which provided the officers with a view of the
contraband prior to entering the apartment. Upon entering the
apartment and speaking to the man who opened the door, the officers
realized the man was not capable of giving proper consent for a
search. They then approached Jackson to request his consent to
search the apartment.
The district court's decision to credit Officer DeBlanc's
testimony over Jackson's was not clearly erroneous. United States
v. Bass, 10 F.3d 256 (5th Cir 1993). Under the circumstances
outlined above, we conclude that the officers reasonably believed
that they had received consent to enter the apartment.
Thomas and Jackson next contend that Jackson did not have the
authority to consent to a search of the apartment. The district
14 court concluded that Jackson had apparent authority to consent to
a search of the common areas of the apartment and found that:
Mr. Jackson's testimony and the testimony of the officers is that he was simply there as a babysitter. As a babysitter, he would have a right of access to and of mutual use of the common areas, which would include, given his description of what he was charged with doing, the bedrooms, the bathrooms; but I don't see any basis that would enable me to say that he had the authority to consent to the insides of closets, underneath mattresses, or areas that would be beyond those areas in which an individual who is there as a babysitter would have a right of access.
[I]t is the Court's conclusion that Mr. Jackson's ability to give consent -- apparent consent that the officers would have reasonably believed he had the authority to give would be an authority limited to the common areas and the bedroom areas of the apartment, the areas in which he testified he was permitted to use and was given free access to as a babysitter. I do not believe that it extends to a reasonable appearance of authority to search inside closets or underneath mattresses.
We agree that the officers reasonably relied on Jackson's
apparent authority to consent to their search of the common areas
of the apartment. See United States v. Jenkins, 46 F.3d 447, 458
(5th Cir. 1995).3
3 In the court below, after the suppression hearing, the Government conceded that Thomas was arrested based on a nonexistent traffic warrant. The appellants contend that although the police knew that Thomas lived in the apartment, instead of asking for his consent to search, they obtained consent from the remaining persons in the apartment. Thomas and Jackson thus argue the officers could not have reasonably believed that the remaining occupants could validly consent to search. Initially, it should be noted that the officers had conflicting information regarding whether Thomas lived in the apartment. One officer testified that Thomas denied any knowledge of the apartment when he was arrested. In any event, it is well established that valid consent may be obtained from a third party with joint access to and control of the property. United States v. Rizk, 842 F.2d 111, 112 (5th Cir.), cert. denied, 488 U.S. 832, 109 S.Ct. 90 (1988). Thus, Thomas and Jackson have not shown that the
15 Finally, after considering the relevant portion of the record,
briefs and arguments of counsel, we find the remaining challenges
to the search of the apartment to be without merit.
E. SEARCH OF HARMON INCIDENT TO ARREST
Harmon challenges the district court's denial of his motion to
suppress the evidence obtained as a result of a search incident to
his arrest. Specifically, he moved to suppress a statement he made
to the police4 and a pistol found in his boot.
The thrust of Harmon's argument is that the initial stop was
illegal because driving in a private parking lot without headlights
did not violate any Texas law. Citing Texas statutes that provide
the definition of the terms "highway" and "roadway," he contends
that "[t]here was no justifying of a custodial arrest . . . for
driving in the apartment parking lot with his parking lights on."
This argument ignores that the district court found the testimony
given by Officer Campbell to be credible. Officer Campbell
testified that he "saw [Harmon] go into the roadway without his
lights on." Officer Campbell further testified that Harmon failed
to signal and was not wearing a seat belt. The factual premise of
Harmon's argument is incorrect. Harmon therefore has failed to
show that the stop was illegal. Whren v. United States, __ U.S.
__, 116 S.Ct. 1769 (1996) (traffic stop reasonable where probable
cause to believe traffic code violated). Further, a peace officer
district court erred in concluding that the officers reasonably believed the remaining occupants could consent to search. 4 He denied that he had just left the apartment.
16 may arrest without a warrant if the officer observes the individual
commit a traffic violation. Tex. Rev. Civ. Stat. Ann. art. 6701d,
§ 153 (Vernon 1977) (current version codified at Tex. Transp. Code
Ann. § 543.001 (Vernon 1995)).5 Once an officer makes such a valid
arrest, the officer is entitled to conduct a search of the
arrestee's person. Gustafson v. Florida, 414 U.S. 260, 266, 94
S.Ct. 488, 492 (1973).
Finally, Harmon argues that the arrest was pretextual. That
argument is entirely without merit. United States v. Robinson, 414
U.S. 218, 94 S.Ct. 467 (1973) (explaining that arrest for traffic
violation not rendered invalid because it was a pretext for a
narcotics search). The district court properly denied Harmon's
motion to suppress.
F. ADMISSION OF EVIDENCE UNDER RULE 403
Goins argues that the district court erred in overruling his
objection to the admission of evidence relating to the seizure of
$20,000 in cash and a semi-automatic pistol from the maroon
Oldsmobile that was stopped on the afternoon of May 4, 1995, after
the driver was observed making an exchange with Goins. We are not
persuaded that the probative value of this evidence was
"substantially outweighed" by the risk of undue prejudice. Fed. R.
Evid. 403. The district court therefore did not abuse its
5 Harmon asserts that he "was arrested on the pistol." Officer DeBlanc testified that Harmon was arrested because "[h]e drove without his lights and there was some traffic violations and he was found in possession of a handgun." The district court credited Officer DeBlanc’s account of the arrest, and this decision is not clearly erroneous. Accordingly, we assume that Harmon was arrested prior to the search that disclosed the weapon on his person.
17 discretion in allowing this evidence. United States v. Morris, 79
F.3d 409, 411-12 (5th Cir. 1996).
G. IMPROPER COMMENTS
In his final challenge to his convictions, Goins argues that
the district court erred in failing to grant his request for a
mistrial on two separate occasions. He contends that both a
comment made by defense counsel during cross-examination and
certain improper remarks made by the Government during closing
argument warranted the granting of a mistrial.6 Goins promptly
objected to both the prosecutor's and defense counsel's challenged
remarks, and the district court instructed the jury to disregard
same. We are satisfied that the instruction to disregard cured any
error occasioned by the comments. The district court did not abuse
its discretion in denying Goins' motions for a mistrial. See
United States v. Limones, 8 F.3d 1004, 1007-08 (5th Cir. 1993),
cert. denied, 511 U.S. 1033, 114 S.Ct. 1543 (1994).
F. POSSESSION OF A DANGEROUS WEAPON UNDER § 2D1.1(b)(1)
Goins and Jackson argue that the district court erred in
assessing them two points for possessing a dangerous weapon under
§ 2D1.1(b)(1). This assessment should be given if the weapon was
present, unless it is clearly improbable that the weapon was
connected to the offense. United States v. Sparks, 2 F.3d 574, 587
6 By adoption, Jackson attempts to raise these two claims. However, because it was Jackson's counsel who made the challenged comments during cross-examination, he is not entitled to raise that particular issue. He is entitled to adopt the challenge to the Government’s closing argument. This latter claim is rejected for the same reason that we reject Goins’ challenge.
18 (5th Cir. 1993) (citing § 2D1.1, comment. (n.3)), cert. denied, 510
U.S. 1056, 114 S.Ct. 720 (1994).
Both appellants argue that there is no evidence that they had
knowledge of their codefendants' possession of weapons.
"[S]entencing courts may hold a defendant accountable for a co-
defendant's reasonably foreseeable possession of a firearm during
the commission of a narcotics trafficking offense, pursuant to
section 2D1.1(b)(1)." United States v. Aguilera-Zapata, 901 F.2d
1209, 1215 (5th Cir. 1990). If the Government establishes that
another codefendant knowingly possessed a gun at the time "he and
the defendant committed the offense by jointly engaging in
concerted criminal activity involving a quantity of narcotics
sufficient to support an inference of intent to distribute," then
a sentencing court may infer that a defendant should have foreseen
a codefendant's possession of a dangerous weapon. Id.
Here, the Government met its burden of demonstrating that, on
May 4-5, 1995, the defendants were jointly engaged in the crime of
possession with intent to distribute a very large amount of cocaine
at the apartment. Jackson and Goins do not dispute that Harmon had
possession of one weapon and another was found at the apartment.
Thus, the sentencing court did not err in finding that it was
reasonably foreseeable to Jackson and Goins that their codefendants
would have possession of a dangerous weapon.
G. AGGRAVATED ROLE IN THE OFFENSE UNDER § 3B1.1(c)
Goins argues that the district court erred in finding that he
had an aggravated role in the offense under § 3B1.1(c). "If the
19 defendant was an organizer, leader, manager, or supervisor in any
criminal activity" involving less than five participants, a two
level increase is warranted. U.S.S.G. § 3B1.1(c). We review such
a factual finding for clear error. United States v. Giraldo, 111
F.3d 21 (5th Cir. 1997).
In view of the evidence before the district court regarding
Goins's purchase of a large amount of cocaine in exchange for
approximately $20,000 in cash, his behavior during the officers'
surveillance of the apartment, and his attempt to contact Harmon by
beeper after Harmon left the apartment7 we are satisfied that the
district court's finding that Goins was a manager or leader is not
clearly erroneous.
H. ACCEPTANCE OF RESPONSIBILITY
Goins contends that the district court erroneously denied him
a two-point reduction in his sentence for acceptance of
responsibility. U.S.S.G. § 3E1.1(a). If a defendant "clearly
demonstrates acceptance of responsibility for his offense," the
sentencing guidelines instruct the district court to decrease the
defendant's offense level by two points. U.S.S.G. § 3E1.1(a).
Because of the district court's unique position to evaluate whether
the defendant has demonstrated acceptance of responsibility, we
7 After Harmon and Thomas left the apartment (and unbeknownst to Goins) were arrested, Goins walked out of the apartment several times and looked anxiously towards the entrance of the complex, apparently awaiting the return of Harmon and Thomas. Using his cellular phone, Goins attempted to locate Harmon by calling Harmon's beeper. Also, at the time the officers arrested Goins, he had walked across the street to use a pay phone near the apartment.
20 review such a determination under a standard of review more
deferential than that of clear error. United States v. Diaz, 39
F.3d 568, 571 (5th Cir. 1994). The defendant bears the burden of
proving that he is entitled to a downward adjustment. United
States v. Kinder, 946 F.2d 362, 367 (5th Cir. 1991), cert. denied,
503 U.S. 987, 112 S.Ct. 1677 & 2290 (1992).
To shoulder this burden, Goins relies on the inculpatory
statement he made to the police upon his arrest. Although Goins's
statement to the effect that he did not know the quantity of drugs
in the apartment was incriminating, it is hardly a statement of
contrition. Goins also contends that he should not be denied this
reduction in sentence because he exercised his right to trial in
order to preserve, among other things, the issue regarding the
admissibility of his statement to the police.8 Goins correctly
contends that he should not be denied the reduction simply because
he exercised his right to a trial by jury. United States v Siebe,
58 F.3d 161, 163 (5th Cir. 1995). The record reveals that that is
not what happened. At sentencing, the district court expressly
recognized the commentary to § 3E1.1 that provides that a defendant
who goes to trial may be accorded a reduction for his acceptance of
responsibility. § 3E1.1, comment. (n.2). Reading from that
commentary, the district court further recognized that "in each
such instance, however, a determination that a defendant has
accepted responsibility will be based primarily upon pretrial
8 Of course, as the Government points out, Goins does not challenge on appeal the admission of his statement to the police.
21 statements and conduct." The district court then found that there
had been no pretrial statements of acceptance of responsibility.9
See United States v. Diaz, 39 F.3d 568, 572 (5th Cir. 1994)
(timeliness is properly taken into consideration to determine
whether defendant accepted responsibility). Goins has not shown
that the district court's conclusion that Goins had not accepted
responsibility was clearly erroneous.
I. REFUSAL TO DEPARTURE DOWNWARD
Goins argues that the district court erred in failing to grant
a downward departure under § 5K2.0, based on the fact that the
Sentencing Commission did not take into consideration the racially
discriminatory effect of the application of the sentencing
guidelines regarding cocaine base or "crack." Because this Court
recently rejected this argument, Goins is precluded from prevailing
on this claim. United States v. Fonts, 95 F.3d 372, 374 (5th Cir.
1996).
For the above reasons, the convictions and sentences of the
four appellants are AFFIRMED.
9 Although Goins does not refer to it on appeal, he apparently wrote the court a letter in an attempt to demonstrate his acceptance of responsibility after he had been convicted.