United States v. McCuiston , 183 F. App'x 474 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 28, 2006
Charles R. Fulbruge III
Clerk
No. 05-40908
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BRIAN MCCUISTON,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
No. 2:04-CR-676-2
--------------------
Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Brian McCuiston challenges his conviction for conspiracy
to possess with intent to distribute more than 500 grams of
methamphetamine. The indictment alleged that the conspiracy
began on January 1, 1993, and continued until the time of the
indictment, November 23, 2004. McCuiston argues that a fatal
variance existed between the indictment, which alleged a single
*
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this opinion should not be published and is not precedent except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. 05-40908
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conspiracy, and the proof at trial, which purportedly
established multiple conspiracies. Viewed in the light most
favorable to the Government, McCuiston and his coconspirators
became friends in childhood when they began selling small
amounts of methamphetamine under the supervision of others in
the CC Mob. When the CC Mob collapsed the three friends banded
together and moved to Oregon and then Kansas to escape law
enforcement and to continue to sell methamphetamine. As time
went on the three continued their concerted methamphetamine
distributing to the point where they operated in different
cities. This view of the evidence would not preclude a finding
of a single conspiracy beyond a reasonable doubt. United
States v. Morrow, 177 F.3d 272, 291 (5th Cir. 1999); United
States v. DeVarona, 872 F.2d 114, 118 (5th Cir. 1989).
McCuiston argues, based on his assertion that there were
multiple conspiracies, that the district court did not have
jurisdiction over a prosecution for his acts as a juvenile.
McCuiston concedes that if that the Government did prove a
single conspiracy, his argument is defeated by United States
v. Tolliver, 61 F.3d 1189, 1196 (5th Cir. 1995), vacated and
remanded on other grounds, 516 U.S. 1105 (1996)(remanded for
further consideration in light of Bailey v. United States, 516
U.S. 137 (1995))
No. 05-40908
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McCuiston argues that the district court should have
instructed the jury that they could not consider those acts
when determining guilt. McCuiston concedes that he did not
raise this issue in the district court and that it may be
reviewed only for plain error. As McCuiston also concedes that
the circuits are split on whether a jury may consider juvenile
conduct when assessing guilt for a conspiracy that was ratified
after the age of majority, it is not plain that a failure to
instruct the jury as now suggested by McCuiston is error. See
United States v. Olano, 507 U.S. 725, 731-37 (1993).
McCuiston argues that the district court erred by allowing
testimony regarding his gang, CC Mob, affiliation. He argues
that the gang evidence was extrinsic to his offense and that
the evidence should have been excluded under FED. R. EVID.
404(b), as it was irrelevant to any issue other than character
and its prejudicial impact substantially outweighed any
probative nature. This court reviews the district court’s
admission of testimony for an abuse of discretion. United
States v. Clements, 73 F.3d 1330, 1334 (5th Cir. 1996).
“Evidence that is inextricably intertwined with the evidence
used to prove a crime charged is not extrinsic evidence under
Rule 404(b). Such evidence is considered intrinsic and is
admissible so that the jury may evaluate all the circumstances
No. 05-40908
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under which the defendant acted.” United States v. Royal, 972
F.2d 643, 647 (5th Cir. 1992)(citation and quotation omitted).
That McCuiston and his coconspirators were all initiated into
the business of selling methamphetamine and other drugs at ages
as early as 12 as part of the CC Mob is part of the
relationship formed between these three men and would help the
jury to determine the nature of that bond. The evidence was
intrinsic to showing that McCuiston, Daniel, and Mott were
involved in the same conspiracy that spanned so many years and
endured under changing conditions. United States v. Stovall,
825 F.2d 817, 825 (5th Cir.), amended, 833 F.2d 526 (1987).
Additionally, the district court gave the jury a limiting
instruction regarding the gang evidence. The jury was
instructed that it could not consider the gang evidence as
evidence of guilt generally and could consider it only to
determine whether McCuiston participated in the conspiracy.
Jurors are presumed to follow their instructions. United
States v. Wyly, 193 F.3d 289, 299 (5th Cir. 1999). McCuiston
has not shown that the district court abused its discretion in
admitting the evidence and instructing the jury on how to use
it.
McCuiston argues that the district court erred by using
more than 500 grams of methamphetamine, the amount charged in
No. 05-40908
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the indictment, to calculate his base offense level. After
Booker, the court continues to review the district court’s
interpretation and application of the Guidelines de novo and
its factual determinations for clear error. United States v.
Charon, 442 F.3d 881, 887 (5th Cir. 2006). The district
court’s determination of the amount of methamphetamine relevant
to the conspiracy was based on facts contained in the
presentence report (PSR). On appeal, McCuiston does not assert
that the information in the PSR was materially untrue,
inaccurate, or unreliable. United States v. Huerta, 182 F.3d
361, 364 (5th Cir. 1999).
McCuiston argues that the district court somehow erred in
sentencing him because the court “did not feel able to treat
the Guidelines as truly advisory.” In this case, the district
court noted that consideration of the factors in 18 U.S.C.
§ 3553 had persuaded the court to impose a sentence that was
44 months below the bottom of the applicable range. Contrary
to McCuiston’s argument, it is plain from the record that the
district court was aware that the Guidelines were advisory
after Booker. The Government has not appealed the sentence and
McCuiston has not shown that the sentence imposed by the
district court was unreasonable. United States v. Mares, 402
No. 05-40908
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F.3d 511, 519 (5th Cir. 2005), cert. denied, 126 S. Ct. 43(2005).
AFFIRMED.