United States v. Caulfield ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-31358
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL CAULFIELD, also known as
Big Mike,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 00-CR-253-9-N
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August 20, 2002
Before GARWOOD, WIENER, and DENNIS, Circuit Judges.
PER CURIAM:*
Michael Caulfield appeals his conviction and sentence for
conspiracy to possess a specified range of cocaine hydrochloride
and crack cocaine, distribution of crack cocaine, and use of a
communications facility in furtherance of a drug offense. He
contends that the Government improperly commented on his right to
testify. As Caulfield did not object to the Government’s comment
in the district court, review is for plain error. United States
*
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that this opinion should not be published and is not precedent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.
No. 01-31358
-2-
v. Zanabria, 74 F.3d 590, 592 (5th Cir. 1996). Caulfield has not
shown that the prosecutor’s “manifest intent” was to comment on
Caulfield’s failure to testify or that the jury “naturally and
necessarily” interpreted the comment as such. See United States
v. Collins, 972 F.2d 1385, 1406 (5th Cir. 1992)(internal
quotations and citation omitted).
Caulfield asserts that the district court erred in admitting
a lay witness to give opinion testimony. He has not shown that
the district court abused its discretion in allowing the case
agent to testify about the unique methods of operation that are
common to drug traffickers. FED. R. EVID. 701; United States v.
Washington, 44 F.3d 1271, 1282-83 (5th Cir. 1995).
Caulfield maintains that the district court’s use at
sentencing of a quantity near the top of the range of crack
cocaine found by the jury violated due process. As his sentence
did not exceed the statutory maximum, there was no violation of
Apprendi v. New Jersey, 530 U.S. 466 (2000). The district
court’s decision to use 49 grams of crack cocaine for sentencing
purposes was not clear error. See United States v. McWaine, 290
F.3d 269, 273 (5th Cir. 2002).
Caulfield also asserts that the district court erred in
giving him the same sentence for the conspiracy count and the
distribution count because the distribution count necessarily
involved a lower drug quantity. As he did not object to this
sentence, review is for plain error. United States v. Rodriguez,
No. 01-31358
-3-
15 F.3d 408, 418 (5th Cir. 1994). He has not shown that the
district court plainly erred in imposing the sentence for
distribution. See U.S.S.G. §§ 3D1.2(b), 3D1.3(a). Caulfield’s
convictions and sentences are AFFIRMED.