United States v. Thomas

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 9, 2003
• Docket: 02-40284
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40284

UNITED STATES OF AMERICA,

Plaintiff- Appellee

v.

LATORSHA JINENE THOMAS,

Defendant - Appellant

Appeal from the United States District Court For the Eastern District of Texas, Beaumont 1:01-CR-11-ALL __________________________________________________

January 8, 2003

Before HIGGINBOTHAM, DAVIS, Circuit Judges, and Hudspeth, District Judge.*

PER CURIAM:**

I.

Thomas appeals her conviction for conspiracy to distribute,

and to possess with the intent to distribute, fifty grams or more

* District Judge of the Western District of Texas, sitting by designation. ** 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. of cocaine base in violation of 21 U.S.C. §§ 841(a)(1)and 846.

Following a jury trial, the district court sentenced Thomas to

235 months in prison and five years of supervised release.

Thomas appeals her conviction on several grounds. First,

Thomas contends there was insufficient evidence to support her

conviction and that the district court erred in overruling her

motion for an instructed verdict. Second, Thomas contends that

the district court erred in calculating the drug quantity for

sentencing purposes and erred in overruling her objection to the

Presentence Investigation Report which she alleges attributed an

excessive amount of controlled substance to Thomas. Third,

Thomas contends the district court erred in denying her motion

for a downward departure based on her family circumstances. We

affirm both Thomas’s conviction and sentence.

II.

Beaumont police officers stopped Ronald Ross and Greginald

Jones on Interstate Highway 10 in March 2000. During the stop,

police searched the vehicle and discovered 305 grams of crack

cocaine. The police arrested both men.

Shortly after his arrest, Ross decided to cooperate with the

police and named Thomas as his source for the drugs. Ross

informed investigators that he and Jones had purchased crack

cocaine from Thomas in Houston on several occasions. Ross

2 explained that the parties coordinated the drug transactions

using cellular phones, and that he would travel from Crowley,

Louisiana, to Houston, Texas, to retrieve the drugs from Thomas.

Ross contacted Thomas as part of a sting operation and

arranged another purchase of crack cocaine. Although Ross and

Thomas never completed the transaction, police made recordings of

telephone conversations concerning the transaction.

A grand jury indicted Thomas for conspiracy to distribute

crack cocaine in violation of 21 U.S.C. § 846. Both Ross and

Jones testified about the conspiracy at Thomas’s trial. A jury

convicted Thomas, and the district court sentenced Thomas at the

minimum guideline range of 235 months in prison and five years of

supervised release.

III.

Thomas contends there was insufficient evidence to support

her conviction and the district court erred in overruling her

motion for an instructed verdict. Although Thomas moved for a

judgment of acquittal after the Government presented its case-in-

chief, she failed to renew her motion after she presented her

defense and at the close of all the evidence. Therefore, this

court’s review of the sufficiency of the evidence is limited to

determining “whether there was a manifest miscarriage of

justice.” United States v. McIntosh, 280 F.3d 479, 483 (5th

3 Circ. 2002) (internal citation omitted). “That occurs only where

the record is devoid of evidence pointing to guilt or contains

evidence on a key element of the offense [that is] so tenuous

that a conviction would be shocking.” Id. (internal quotation

marks and citation omitted).

Thomas argues that the evidence was insufficient to

support her conviction because the Government failed to establish

that there was a conspiracy or that she participated in it. At

Thomas’s trial, Ronald Ross and Greginald Jones testified that on

three occasions in March 2000, Thomas “fronted” them various

amounts of cocaine base, including the 305 grams of cocaine base

authorities seized from Ross and Jones on March 14, 2000. Ross

and Jones identified Thomas’s voice on recordings made by the

Government in the sting operation. The Government presented

telephone records showing a pattern of telephone activity

corroborating the testimony of Ross and Jones. The record thus

contained sufficient evidence to establish that Thomas conspired

with Ross and Jones to distribute, and to possess with the intent

to distribute, cocaine base. Additionally, Thomas argues that

the Government presented insufficient evidence to prove that

venue in the Eastern District of Texas was proper. However,

Thomas waived this issue on appeal by failing to raise a proper

objection to venue before the jury’s verdict. See United States

4 v. Carbajal, 290 F.3d 277, 288-89, (5th Cir. 2002), petition for

cert. filed (U.S. Jul. 18, 2002) (No. 02-5898).

For these reasons, Thomas failed to demonstrate that her

conviction based on the evidence presented was a manifest

miscarriage of justice. We therefore affirm Thomas’s conviction.

IV.

Thomas contends next that the district court clearly erred

in calculating her drug quantity for sentencing purposes. Thomas

argues that the testimony of Ross and Jones, both of whom were

admitted drug dealers seeking favorable treatment, was not

sufficiently reliable to permit the district court to calculate

a specific quantity of drugs.

A district court’s determination regarding the quantity of

drugs on which the defendant’s sentence should be based is a

factual finding reviewed for clear error. United States v.

Morris, 46 F.3d 410, 422 (5th Cir. 1995)(citing United States v.

Mitchell, 964 F.2d 454, 457 (5th Cir. 1992)). In making its

sentencing decisions, a "district court may consider any relevant

evidence ‘without regard to its admissibility under the rules of

evidence applicable at trial, provided that the information has

sufficient indicia of reliability to support its probable

accuracy.’" United States v. Davis, 76 F.3d 82, 84 (5th Cir.

1996) (citing U.S.S.G. § 6a1.3; United States v. Michael, 894

5 F.2d 1457, 1461-62 (5th Cir. 1990)).

A Presentence Report (“PSR”) is considered reliable and may

be treated as evidence by the court when making sentencing

determinations. United States v. Vital, 68 F.3d 114, 120 (5th

Cir. 1995). If no rebuttal evidence is submitted to refute the

information in the PSR, the sentencing court is free to adopt

that information as its findings without further inquiry or

explanation. Id. The defendant bears the burden of

demonstrating that information the district court relied on at

sentencing is “materially untrue.” Davis, 76 F.3d at 84 (citing

United States v. Vela, 927 F.2d 197, 201 (5th Cir. 1991)).

The PSR determined that Thomas had conspired with Ross and

Jones to distribute 1,139 grams, or 1.13 kilograms, of cocaine

base. Thomas objected at trial to the PSR’s drug-quantity

determination, arguing that although the PSR related that she

delivered cocaine base to Ross on four occasions in October 1999,

she could not have done so because, as the PSR also indicated,

she was incarcerated during October 1999. Thomas further

asserted that there was no scientific evidence regarding any

amounts of cocaine base other than the 305 grams seized from Ross

and Jones on March 14, 2000. The PSR addendum stated that the

probation officer’s drug-quantity determination was based upon

statements provided by Ross during debriefings with Drug

6 Enforcement Administration agents and the United States

Attorney’s Office and that those statements were corroborated by

the trial testimony of Ross and Jones and other evidence

presented at trial, such as phone records.

At sentencing, Thomas renewed her objection to the PSR’s

drug-quantity determination, but did not present any rebuttal

evidence. Concluding that the PSR was based upon information of

sufficient trustworthiness and reliability, the district court

adopted the PSR’s drug-quantity determination and overruled

Thomas’s objection.

The district court was free to adopt the PSR’s determination

without further inquiry because Thomas failed to present any

evidence at sentencing to support her objection to the PSR’s

drug-quantity determination. Accordingly, the district court did

not clearly err in determining the amount of drugs attributable

to Thomas for sentencing purposes.

Finally, Thomas argues that the district court erred in

denying her motion for a downward departure based on her family

circumstances. Thomas asserts that the district court failed

even to consider family obligations as a circumstance that could

lead to a departure.

This court lacks jurisdiction to review a defendant’s

7 challenge to his sentence based upon mere dissatisfaction with

the district court’s refusal to grant a downward departure.

United States v. DiMarco, 46 F.3d 476, 477 (5th Cir. 1995).

Jurisdiction will lie, however, if the sentencing court’s refusal

to depart downward was the result of a violation of law in that

the court mistakenly assumed that it lacked the authority to

depart. United States v. Landerman, 167 F.3d 895, 899 (5th Cir.

1999). But to establish such a violation of law, the record

must indicate that the district court held the erroneous belief

that it lacked the authority to depart. Id.

“Family ties and responsibilities . . . are not ordinarily

relevant in determining whether a sentence should be outside the

applicable guideline range.” U.S.S.G. § 5H1.6, p.s. (2002).

Unless there are unique or extraordinary circumstances, it is

improper for the district court to depart downward from the

guideline range based on the defendant’s parental

responsibilities. United States v. Brown, 29 F.3d 953, 961 (5th

Cir. 1994).

Thomas contends that the district court’s belief that it had

no authority to consider family circumstances as a possible

ground for departure is evidenced by the district court’s

statement that:

And there’s a lot of literature on this recently on family obligations, whether they should or

8 should not play any part, and that is even going to be the subject of some forthcoming possible change in the guidelines. But they’ve not changed yet, and they’re to be treated equally, . . . depending on the drug amount.

We disagree. We do not read Judge Howell Cobb’s statement as

expressing a belief that the court could not downwardly depart;

rather, we view this as a statement that literature and guideline

changes were available or expected to give guidance to the court

on when a departure is justified because of family circumstances.

We therefore affirm the district court’s denial of Thomas’s

motion for a downward departure based on her family

circumstances.

VI.

For the reasons stated above, we affirm Thomas’s conviction

and sentence.

AFFIRMED.