United States v. Fields , 138 F. App'x 622 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 16, 2005
Charles R. Fulbruge III
Clerk
No. 04-10266
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSEPH HORACE FIELDS, also known as Ding-Ding;
JASON DEJUAN LEATCH, also known as Criptonite;
DONALD TERRELL BANKS, also known as T-Blue,
Defendants-Appellants.
--------------------
Appeal from the United States District Court
for the Northern District of Texas, Dallas
3:03-CR-78-14-N
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Before GARWOOD, GARZA and BENAVIDES, Circuit Judges.
*
FORTUNATO P. BENAVIDES, Circuit Judge:
Defendants-Appellants Joseph Horace Fields, Jason Dejuan
Leatch, and Donald Terrell Banks appeal their convictions and
sentences for participation in a drug conspiracy. For the
foregoing reasons, we affirm all convictions. We also affirm the
sentences of Fields and Banks. We vacate Leatch’s sentence and
*
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that this opinion should not be published and is not precedent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.
1
remand to the district court for re-sentencing.
I. FACTUAL BACKGROUND
Appellants Joseph Horace Fields, Jason Dejuan Leatch, and
Donald Terrell Banks were all involved with street gangs fueled
by illegal trade in controlled substances. Fields and Leatch
belonged to a gang known as the “Underground Nigger Crips”
(“UNC”) which operated on Cymbal Drive in Dallas, Texas. UNC
members, who identified themselves by wearing the colors of the
University of North Carolina at Chapel Hill, held specific ranks
within the organization, corresponding to each member’s
seniority. The most experienced gang members were identified as
“Original Gangsters” (“OGs”); the mid-level members received the
rank of “Young Crips Original Gangsters” (“YCOGs”); and the
lowest level for newer members was “Young Crips” (“YCs”). Leatch
was a YC, having only joined the gang in 2000. Fields joined UNC
in 1995 and held the rank of OG.
Banks was a member of the Pleasant Grove Crips (“PGC”),
which shared a common lineage with UNC, and also operated an
illegal narcotics business on Cymbal Drive. PGC, whose members
signaled their allegiance by wearing Duke University apparel,
adopted a ranking system similar to UNC’s. The newest members
were known as “Young Devils” (“YDs”); in the middle were “Young
Devil Original Devils” (“YDODs”); and the most senior were
“Original Devils” (“ODs”). Banks was a YDOD. Through an
2
alliance, PGC and UNC completely controlled the drug activity on
Cymbal Drive, such that no one could sell drugs there without
their permission.
Following a two-year investigation, a federal grand jury
indicted fourteen defendants for the drug activity on Cymbal
Drive. Thirteen of the defendants were members of UNC or PGC.
The indictment alleged that all fourteen defendants conspired to
possess and distribute more than 50 grams of crack cocaine in
violation of 21 U.S.C. § 846 (21 U.S.C. §§ 841(a)(1) &
841(b)(1)(A)). The thirty-four other counts reflected actual
individual undercover buys made by law enforcement officers
during the investigation.
Fields was also indicted for violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(c) for possession of cocaine base with
intent to distribute. Leatch was indicted on two counts for
distributing cocaine base in violation of 21 U.S.C. §§ 841(a)(1)
and 841(b)(1)(c). Banks was also indicted for distributing
cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(c). Finally, Fields and Leatch were indicted for
distribution of cocaine base and aiding and abetting in violation
of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(c) and 18 U.S.C. § 2.
Fields, Leatch, and Banks pled guilty to all counts except
for the conspiracy charge. After a five day trial, the jury
found them guilty of the conspiracy count, as well.
3
The Presentence Report (“PSR”) found that Fields had a base
offense level of 36 pursuant to U.S.S.G. § 2D1.1(a)(3) because he
was accountable for 1,301.1 grams of cocaine base. It enhanced
his sentence by two points in accordance with U.S.S.G. §
2D1.1(b)(1) due to the weapons in and around Cymbal Drive used by
the gangs. The resulting U.S. Sentencing Guideline range was 292
to 365 months and the district court sentenced Fields to 292
months in prison for conspiracy to run concurrently with a 240
month sentence for the possession and distribution counts.
The PSR treated Banks’s two convictions similarly to
Fields’s. It assigned him a base level of 36 for the conspiracy
count with a two-point enhancement for possession of a dangerous
weapon. The Sentencing Guidelines directed that Banks, with a
criminal history category of V, could receive 360 months to life
in prison. The district court sentenced Banks to 360 months for
conspiracy and 240 months for the distribution count to run
concurrently.
Likewise, Leatch was assigned a base level of 36 with the
same two-point enhancement. The district court granted Leatch a
downward departure in criminal history from a category of V to a
category of IV. The corresponding Sentencing Guideline range was
324 to 405 months. The court sentenced Leatch to 324 months for
conspiracy and 240 months for the distribution charges to run
concurrently.
Leatch, Banks, and Fields appeal their conspiracy
4
convictions and sentences.
II. DISCUSSION
Appellants assert that the evidence presented at trial was
insufficient for the jury to find them guilty on the conspiracy
count. They also argue that the district court should have
granted their motions for a new trial because the verdict was
against the great weight of evidence. Additionally, appellants
contend that the district court committed reversible error by
admitting into evidence a videotape of gang members.
Appellants also advance several arguments that their
sentences are in error. First, they argue that the sentences
violated their Sixth Amendment rights by being based, in part, on
evidence not found by a jury. They also contend that the
district court erred in calculating the amount of illegal
narcotics sold by the conspiracy and in enhancing their sentences
for weapons possession. Finally, Leatch argues that the district
court erred by denying his requested two-level downward departure
for acceptance of responsibility.
We address each of these arguments in turn.
A. Sufficiency of Evidence
1. Standard of Review
“This Court reviews jury verdicts with great deference and
evaluates the evidence in the light most favorable to the verdict
and affords the government the benefit of all reasonable
5
inferences and credibility choices.” United States v. McCauley,
253 F.3d 815, 818 (5th Cir. 2001) (citations and internal
quotation marks omitted). We affirm the lower court’s decision
“if a rational trier of fact could have found that the evidence
establishes the essential elements of the offense beyond a
reasonable doubt.” United States v. Williams, 985 F.2d 749, 753
(5th Cir. 1993).
2. Discussion
“To prove a conspiracy to possess and distribute a
controlled substance, the government must prove beyond a
reasonable doubt (1) the existence of an agreement between two or
more persons to violate narcotics laws, (2) knowledge of the
conspiracy and intent to join it, and (3) voluntary participation
in the conspiracy.” United States v. Peters, 283 F.3d 300, 307
(5th Cir. 2002). When determining the defendant’s guilt, the
jury may consider if he acted in concert with others and take
into account his “presence among or association with drug
conspirators.” Id. “Of course, mere presence or association
with drug conspirators alone cannot establish that a person has
voluntarily joined that conspiracy.” Id. “The agreement, a
defendant’s guilty knowledge and a defendant’s participation in
the conspiracy all may be inferred from the development and
collocation of circumstances.” United States v. Maltos, 985 F.2d
743, 746 (5th Cir. 1992) (citations and internal quotation marks
6
omitted). However, “the government may not prove up a conspiracy
merely by presenting evidence placing the defendant in ‘a climate
of activity that reeks of something foul.’” Id. (quoting United
States v. Jackson, 700 F.2d 181, 185 (5th Cir. 1983)).
We note that evidence presented at trial showed the
following: UNC and PGC had exclusive control over the illegal
narcotics business on Cymbal Drive; the gangs used houses on
Cymbal Drive for gun and drug storage; UNC and PGC policed the
use of drugs among members; gang members did not fight over drug
sales on Cymbal and in fact cooperated to fill drug orders; UNC
and PGC used lookouts and counter-surveillance to avoid police
interference; and a videotape filmed by UNC and PGC members
showed them counting their drug money and bragging about how
lucrative their arrangement was. This evidence is qualitatively
similar to that which this Court deemed sufficient to find a drug
conspiracy in United States v. Wilson, 116 F.3d 1066 (5th Cir.
1997).1
Like the panel in Wilson, we find the evidence in the
instant case sufficient for the jury to find a conspiracy. As in
the instant case, the gang in Wilson controlled who could sell
drugs on its territory and dealt with hostile parties violently.
Id. at 1074. In both cases, the gangs’ exclusive control of
1
This opinion was later vacated only as to one count against
Defendant Alfred A. Brown. See United States v. Brown, 161 F.3d
256, 257 n.1 (5th Cir. 1998).
7
their territory combined with the fact that the defendants all
sold drugs on the gangs’ turf could allow “[a] rational jury [to]
infer voluntary participation in the conspiracy.” Id. Even
though, in both cases, “individual dealers sold in competition
with one another,” this “does not preclude a finding of a single
conspiracy.” Id. at 1076. Thus, we find that the evidence in
the instant case permits a reasonable trier of fact to find
beyond a reasonable doubt that Appellants engaged in a conspiracy
to sell illegal drugs.
B. Verdict Against the Weight of Evidence
1. Standard of Review
“The decision to grant or deny a motion for new trial based
on the weight of the evidence is within the sound discretion of
the trial court. An appellate court may reverse only if it finds
the decision to be a ‘clear abuse of discretion.’” United States
v. Dula, 989 F.2d 772, 778 (5th Cir. 1993) (quoting United States
v. Martinez, 763 F.2d 1297, 1312 (11th Cir. 1985)).
2. Discussion
Federal Rule of Criminal Procedure 33 states: “Upon the
defendant’s motion, the court may vacate any judgment and grant a
new trial if the interest of justice so requires.” Fed. R. Crim.
P. 33. In order for a district court to exercise its discretion,
“[t]he evidence must preponderate heavily against the verdict,
such that it would be a miscarriage of justice to let the verdict
8
stand.” United States v. Robertson, 110 F.3d 1113, 1118 (5th
Cir. 1997). The verdict in this case was clearly not a
miscarriage of justice. Thus, we find that the district court
did not abuse its discretion in declining to grant new trials.
C. Authentication of Evidence
1. Standard of Review
We review district courts’ evidentiary rulings for abuse of
discretion. United States v. Sanders, 343 F.3d 511, 517 (5th
Cir. 2003). If we find an abuse of discretion, we review the
error under the harmless error doctrine. Id.
2. Discussion
Appellants objected to a videotape made by UNC and PGC gang
members being admitted into evidence. Law enforcement officers
recovered the tape during a different drug enforcement operation.
The detective who discovered it testified that it had not been
altered in any way since she first obtained it. Since the
original operator of the video camera was murdered, a different
gang member testified as to the identity of the individuals on
the tape – UNC and PGC gang members on Cymbal Drive.
Federal Rule of Evidence 901(a) mandates that “[t]he
requirement of authentication or identification as a condition
precedent to admissibility is satisfied by evidence sufficient to
support a finding that the matter in question is what its
proponent claims.” Fed. R. Evid. 901(a). We find that the
9
district court did not abuse its discretion by admitting the
videotape into evidence. Appellants do not call into question
the tape’s accuracy and there is no evidence that it was altered
in any way. We also remain unpersuaded that its admission
meaningfully prejudiced the defendants, as the evidence in this
case was quite strong without the videotape.
D. Sixth Amendment Violation
1. Standard of Review
For Appellants who do not raise the Booker issue in the
district court, thereby preserving the error, the proper standard
of review is plain error. United States v. Mares, 402 F.3d 511,
520 (5th Cir. 2005). Under that standard we will reverse if an
appellant can show that (1) there is error; (2) the error is
plain; and (3) the error affects “substantial rights,” i.e., the
error “must have affected the outcome of the district court
proceedings.” United States v. Olano, 507 U.S. 725, 732-34
(1993). “‘If all three conditions are met, an appellate court
may then exercise its discretion to notice a forfeited error, but
only if (4) the error “seriously affects the fairness, integrity,
or public reputation of judicial proceedings.”’” United States
v. Cotton, 535 U.S. 625, 631 (2002) (quoting Johnson v. United
States, 520 U.S. 461, 467 (1997)).
2. Discussion
Appellants argue that their sentences violated the Sixth
10
Amendment per United States v. Booker, 125 S. Ct. 738 (2005).
The government concedes that the sentences were plainly in error.
Therefore, the first question that must be answered is whether
Appellants preserved their Booker objections to the district
court’s sentencing under the U.S. Sentencing Guidelines. While
Fields and Banks objected orally and in writing to their
sentences, they never voiced their objections in such a manner so
as to advise the district court they were complaining about Sixth
Amendment violations or used any terms that would implicate the
error complained of in Booker. We require more than just an
objection to factual findings presented in the PSR. See United
States v. Bringier, 405 F.3d 310, 316 (5th Cir. 2005) (finding
error was not preserved where objections to “sentence were not
expressed in terms of Blakely or the Sixth Amendment”).
This is not the case for Leatch. In addition to
substantively complaining about the calculation of drug totals
involved in this case, his motion to the district court for
downward departure included a complaint that implicitly
referenced the constitutional problem at issue in Booker: “Mr.
Leach also moves for a downward departure on the basis of
uncharged conduct being used to dramatically raise his sentence.
See United States v. White, 240 F.3d 127, 136 ([2d] Cir. 2001).”2
2
The appellant in White, objecting to the quantity of
cocaine base applied in sentencing, argued that the district
court violated Apprendi v. New Jersey, 530 U.S. 466 (2000), by
11
His attorney voiced this complaint during the sentencing hearing
as well: “Also we move for a downward departure based upon the
uncharged conduct dramatically raising a sentence . . . .” We
think these statements successfully preserved the Booker error.
Since the government cannot identify “record evidence that would
prove beyond a reasonable doubt that the district court would not
have sentenced [Appellant] differently had it acted under an
advisory Guidelines regime,” we vacate Leatch’s sentence and
remand to the district court. United States v. Akpan, 407 F.3d
360, 377 (5th Cir. 2005).3
As they did not preserve their error, we review the
sentences of Fields and Banks for plain error. The government
contends that Appellants’ substantial rights were not affected by
the Booker error. In order to show that substantial rights were
affected, Appellants must “demonstrate[] that the sentencing
judge--sentencing under an advisory scheme rather than a
mandatory one--would have reached a significantly different
result.” Mares, 402 F.3d at 521. A review of the sentencing
hearing does not yield any evidence that the sentencing judge
“us[ing] facts not before the jury to impose a sentence.” 240
F.3d at 136. We have held that an Apprendi-based objection
preserves Booker error. See United States v. Pineiro, __ F.3d
__, 2005 U.S. App. LEXIS 9226, *9 (5th Cir. May 20, 2005).
3
Appellants have not identified, nor have we found, any
evidence that Fields and Banks adopted the grounds Leatch
advanced for downward departure in this case.
12
would have reached a different result. Thus, we affirm the
sentences of Banks and Fields.
E. Drug Quantity Calculations During Sentencing
1. Standard of Review
We review the district court’s interpretation and
application of federal Sentencing Guidelines de novo and its
findings of fact for clear error. United States v. Sprick, 233
F.3d 845, 852 (5th Cir. 2000). “[W]hen a district court has
imposed a sentence under the Guidelines, this [C]ourt continues
after Booker to review the district court’s interpretation and
application of the Guidelines de novo.” United States v.
Villegas, 404 F.3d 355, 359 (5th Cir. 2005).
2. Discussion
“[T]he district judge ‘may adopt facts contained in the PSR
without further inquiry if the facts have an adequate evidentiary
basis and the defendant does not present rebuttal evidence.’”
United States v. Medina, 161 F.3d 867, 876-77 (5th Cir. 1998)
(quoting United States v. Alford, 142 F.3d 825, 832 (5th Cir.
1998)). Here, the underlying facts found by the PSR are not
really in contention. Rather, Appellants object to the manner in
which the amount of drugs was estimated based on those facts.
Medina makes clear that district courts need not be exact, i.e.,
the district court may approximate drug totals. See id. at 877.
These estimations will be reviewed for clear error. See id.13
The government’s methodology was not flawed. It was based
on the evidence and consistently used the low end of witnesses’
estimates. Thus, we do not believe the drug amounts are clearly
in error.
F. Enhancement for Possession of Weapon
1. Standard of Review
As stated supra, the standard of review is de novo for
applications of the U.S. Sentencing Guidelines and clear error
for factual findings.
2. Discussion
Appellants argue that the district court erred in applying a
two-level enhancement to their sentences pursuant to U.S.S.G. §
2D1.1(b)(1) for possession of a dangerous weapon. U.S.S.G. §
2D1.1(b)(1) permits a two-level enhancement if the defendant
possessed a dangerous weapon while trafficking or possessing
illegal narcotics. United States v. Partida, 385 F.3d 546, 562
(5th Cir. 2004). It is the government’s burden to show a spacial
and temporal nexus between the defendant, the gun and the drug
activity, by a preponderance of the evidence. Id.; United States
v. Jacquinot, 258 F.3d 423, 430 (5th Cir. 2001). The enhancement
should not be applied, though, where “the defendant establishes
that it was clearly improbable that the weapon was connected with
the offense.” Id. at 430-31. “Instead, for the enhancement to
be proper the government must show that ‘the weapon was found in
14
the same location where drugs or drug paraphernalia are stored or
where part of the transaction occurred.’” Partida, 385 F.3d at
562 (quoting U.S.S.G. § 2D1.1 application note 3).
“‘[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. Thomas, 120 F.3d 564,
574 (5th Cir. 1997) (quoting United States v. Aguilera-Zapata,
901 F.2d 1209, 1215 (5th Cir. 1990)).
The PSR states that “numerous weapons” were found “in and
around” Cymbal Drive. Furthermore, government surveillance
showed that members of UNC and PGC possessed firearms while on
Cymbal Drive. This is coupled with substantial testimony for
various gang members regarding the possession of firearms by
themselves and other gang members on Cymbal Drive. Appellants
point to no evidence that shows the relationship between these
guns and their drug conspiracy to be improbable. Likewise, they
present no evidence that the possession and storage of firearms
was unforeseeable or unknown to them. Thus, we affirm the
district court’s ruling.
G. Denial of Two-Level Downward Adjustment under U.S.S.G. § 3E1.1
1. Standard of Review
“Whether a defendant has accepted responsibility for a crime
is a factual question and the standard of review is even more
15
deferential than clear error.” United States v. Spires, 79 F.3d
464, 467 (5th Cir. 1996). Accord United States v. Outlaw, 319
F.3d 701, 705 (5th Cir. 2003). “Because the trial court’s
assessment of a defendant’s contrition will depend heavily on
credibility assessments, the ‘clearly erroneous’ standard will
nearly always sustain the judgment of the district court.”
Spires, 79 F.3d at 467. “However, if this [C]ourt determines
that the district court misapplied the guidelines, remand is
appropriate unless this court concludes, on the record as a
whole, that the error is harmless.” Outlaw, 319 F.3d at 705.
2. Discussion
Leatch argues that the district court erred when it failed
to grant him a two-point downward adjustment under U.S.S.G. §
3E1.1 for acceptance of responsibility. Although Leatch did go
to trial, he points to U.S.S.G. § 3E1.1’s application notes which
provide that in some cases a defendant who defends himself in
court could still receive the downward departure:
Conviction by trial, however, does not automatically
preclude a defendant from consideration for such a
reduction. In rare situations a defendant may clearly
demonstrate an acceptance of responsibility for his
criminal conduct even though he exercises his
constitutional right to a trial. This may occur, for
example, where a defendant goes to trial to assert and
preserve issues that do not relate to factual guilt
(e.g., to make a constitutional challenge to a statute or
a challenge to the applicability of a statute to his
conduct).
U.S.S.G. § 3E1.1, application note 2. However, Leatch did not
16
demonstrate an acceptance of responsibility for his participation
in the drug conspiracy at the sentencing: “[A]ll I sold to
undercover was a gram and a half out of three cases. Out of
three – three different deliveries to undercover police officer,
all they got from me was a gram and a half, and I am fixing to
get, you know, almost 30 years.” And he and his co-defendants
continued to argue throughout the trial (and even on appeal) that
they were independent operators and did not participate in a
larger conspiracy to sell drugs on Cymbal Drive. The issue of
whether or not gang members conspired with one another to sell
drugs and monopolize the illegal narcotic business on Cymbal
Drive is an “operative fact” and distinguishes this case from
United States v. Fells, 78 F.3d 168 (5th Cir. 1996).
Thus, we affirm the district court’s ruling.
III. CONCLUSION
For the forgoing reasons, we AFFIRM the convictions of
Fields, Leatch, and Banks. We also AFFIRM the sentences of
Fields and Banks. However, we VACATE Leatch’s sentence and
REMAND to the district court for re-sentencing.
17
EMILIO M. GARZA, Circuit Judge, specially concurring:
I concur with the majority’s opinion, except for the stated standard of review for
Sentencing Guidelines interpretation. See Majority Op. at 13-14. For the reasons stated in my
concurrence in United States v. Creech, No. 04-40354, 2005 WL 1022435, at *9 (5th Cir. May 3,
2005), I do not agree that we review a district court’s interpretation of the Sentencing Guidelines
de novo. While endorsed in Villegas, this standard is inconsistent with the Supreme Court’s
decision in Booker, which requires appellate courts to review sentencing decisions for
unreasonableness. Booker, 125 S. Ct. at 767. Because I agree that the district court in this case
correctly interpreted the Sentencing Guidelines, I conclude that the sentence was not
unreasonable. See Mares, 402 F.3d at 519 (“Given the deference due the sentencing judge’s
discretion under the Booker/Fanfan regime, it will be rare for a reviewing court to say [a sentence
in which the district court properly applied the Guidelines] is ‘unreasonable.’”).
Accordingly, I concur in the majority opinion except with respect to the stated de novo
standard of review.
18