United States v. Sanders , 202 F. App'x 665 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 11, 2006
Charles R. Fulbruge III
Clerk
No. 05-11184
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DOYLE SANDERS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:99-CR-063-C
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Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Sanders argues that the district court abused its discretion
in refusing to instruct the jury regarding simple possession as
an alternative to two counts of possession with intent to
distribute. Under United States v. Lucien, 61 F.3d 366, 372 (5th
Cir. 1995), the district court should give the lesser-included
instruction only if the evidence permits a jury to rationally
find the defendant guilty of the lesser offense yet innocent of
the greater. The evidence here does not permit such a finding:
*
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opinion should not be published and is not precedent except under the limited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. 05-11184
-2-
while Sanders focuses only on the small amount of drugs found at
his ranch, he ignores copious other evidence indicating that he
did more than possess drugs for personal use — the testimony of
Kelly Warren and Brenda Hayes describing a wide-ranging and long-
running distribution conspiracy, drug ledgers indicating
Sanders’s name in connection with distribution, recorded
telephone conversations between Sanders and co-conspirators
discussing distribution, evidence that he was attempting to
procure a quarter-pound of drugs from Tommy Haynes when Haynes
was arrested, and scales, packaging materials, and the names and
numbers of his co-conspirators found at his ranch. The district
court did not abuse its discretion.
Sanders also challenges the constitutionality of 21 U.S.C. §
851 and 18 U.S.C. § 922(g). As he acknowledges, his arguments
are foreclosed by, respectively, Almendarez-Torres v. United
States, 523 U.S. 224 (1998) and United States v. Rawls, 85 F.3d
240 (5th Cir. 1996), and he raises them only to preserve them.
AFFIRMED.