United States v. Abron ( 1996 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 95-40467
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTONIO L. ABRON; GREGORY DARNELL WILLIAMS,
Defendants-Appellants.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
(9:94-CR-21-1)
_________________________________________________________________
May 7, 1996
Before POLITZ, Chief Judge, JONES and BARKSDALE, Circuit Judges.
By EDITH H. JONES, Circuit Judge:*
Gregory Darnell Williams and Antonio L. Abron were
convicted of conspiring to traffic in crack cocaine. Williams was
sentenced to 360 months in prison; Abron was sentenced to 260
months in prison. They now appeal their convictions and sentences.
We affirm.
I. BACKGROUND
In the early morning hours of March 24, 1994, Deputy
Sheriff Brandon Lovell observed the appellants' car travelling
*
Pursuant to Local Rule 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should not be published and is not precedent except under the limited circumstances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 Local Rule 47.5.4.
extremely slowly and veering from lane to lane on Interstate
Highway 59 in East Texas. Suspecting the driver was intoxicated,
Lovell stopped the car. Williams, the driver, identified himself
as "Carlos Jones." He had no identification with him, but told
Lovell he did have a driver's license. Lovell ran a computer check
and found no license issued to a "Carlos Jones" with the birth date
given. Similarly, the passenger, Abron, did not have a driver's
license with him, although he told Lovell he did have one. Lovell
ran a computer check and found that Abron's license had expired.
At that point, Lovell determined the car would have to be
towed, pursuant to Polk County, Texas policy, because Williams did
not have a license. Also pursuant to Polk County policy, Lovell
began an inventory of the car. In plain view on the back seat, he
found a package of cocaine. Lovell placed both appellants under
arrest for cocaine possession.
The Polk County Sheriff's Department impounded the car
and conducted a complete inventory, which revealed more cocaine
hidden under the back seat.
After being read their Miranda rights and signing waiver
forms, the appellants confessed. Abron told Narcotics Officer
Nettles that Ray Brown, a well-known drug dealer, had approached
him in Winnfield, Louisiana and hired him to "make a run to
Houston" for cocaine. Abron explained that Brown had given him
$2600, instructed him to go to an apartment near Greenspoint Mall
in Houston where he met with Reginald and Dennis Brown and
exchanged the money for crack cocaine. Abron testified that he was
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returning to Louisiana when he was stopped and that he had been
paid $500 for the run. In Abron's presence, Williams a/k/a Carlos
Jones gave a similar account.
The appellants then offered to help the police entice Ray
Brown from Louisiana into Texas to be apprehended. The following
evening, they travelled to the Louisiana border with several
officers and a DEA agent. However, the attempt was unsuccessful.
The jury convicted Williams and Abron each of one count
of conspiring to possess with intent to distribute cocaine base, in
violation of 21 U.S.C. § 846, and two counts of possession with
intent to distribute cocaine base, in violation of 21 U.S.C. §
841(a)(1). Williams and Abron timely appealed.
III. DISCUSSION
In reviewing the appellants' convictions, this court
views the evidence in the light most favorable to the Government
and assesses whether a rational jury could have found beyond a
reasonable doubt that the government proved each element of the
charged offense. U.S. v. Velgar-Vivero, 8 F.3d 236, 239 (5th Cir.
1993), cert. denied sub nom. by Rivas-Cordova v. U.S., __. U.S. __,
114 S.Ct. 1865. We review the district court's factual findings on
the suppression motion for clear error and its legal conclusions de
novo. U.S. v. Seals, 987 F.2d 1102, 1106 (5th Cir.), cert. denied,
__ U.S. __, 114 S.Ct. 155 (1993). Further, we give great deference
to the district court's application of the Sentencing Guidelines.
U.S. v. Humphrey, 7 F.3d 1186, 1189 (5th Cir. 1993).
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Williams contends first that the district court erred in
denying his motion to suppress the cocaine found in the car.
Williams argues that the traffic stop leading to his arrest and the
finding of the cocaine was illegal because Officer Lovell did not
have "probable cause" to stop him. To the contrary, Williams does
not dispute that he was veering from lane to lane. Not only could
such weaving constitute a valid reason for a traffic stop, but as
the court found, the erratic driving gave rise to a reasonable
suspicion that the driver might be intoxicated.1
Second, we reject Williams's argument that the district
court erred in enhancing his sentence two base offense levels for
obstruction of justice under U.S.S.G. § 3C1.1. Williams provided
a false name to Officer Lovell upon arrest. When a federal
indictment was issued in the name of "Carlos Jones", the "real"
Carlos Jones was erroneously arrested. The government then had to
issue a superseding indictment in the correct name. Further,
Williams's use of "Carlos Jones" hindered the police's attempts to
apprehend Ray Brown. It is probable that the law enforcement
officers were not successful in enticing Brown into Texas because
Williams used a false name when trying to contact him. Therefore,
the district court did not clearly err in finding that Williams had
obstructed justice and in enhancing his sentence accordingly.
Williams next contends that the district court erred in
not reducing his sentence for acceptance of responsibility under
1
U.S. v. Thomas, 12 F.3d 1350, 1355 (5th Cir.), cert. denied sub nom.,
Sanchez v. U.S., __ U.S. __, 114 S.Ct. 1861 (1994).
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U.S.S.G. § 3E1.1. We disagree. The official Commentary explains
that this section does not ordinarily apply to defendants who put
the Government to the burden of proof at trial. U.S.S.G. § 3E1.1,
n.2. The Commentary further states that the court should consider
whether the defendant truthfully admitted his guilt. U.S.S.G. §
3E1.1, n.1(a). Williams not only forced the Government to prove
its case at trial, but, notwithstanding his confession to Officer
Nettles, Williams told his probation officer that he did not know
drugs were in the car and that he went to Houston to deliver
records to a radio station.
Fourth, we reject Williams's argument that the district
court erred in enhancing his base offense sentencing level because
he was a career offender. See U.S.S.G. § 4B1.1. For purposes of
sentencing, a defendant is a career criminal if he has at least two
prior felony convictions of either a crime of violence or of a
controlled substance. U.S.S.G. § 4B1.2. A crime of violence
includes forcible sex offenses. U.S.S.G. § 4B1.1, n.2. We review
de novo whether Williams's prior conviction for attempted
aggravated battery constitutes one of the predicate offenses under
§ 4B1.1. U.S. v. Guerra, 962 F.2d 484, 485 (5th Cir. 1992). This
is not a close call. Attempted aggravated battery is a crime of
violence; the use of force is an inherent element of that offense.
Indeed, Williams was originally charged with rape, but the charge
was reduced in a plea bargain to attempted aggravated battery.
Abron's arguments on appeal are no more persuasive. The
evidence was sufficient to support his conviction for conspiracy.
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Abron confessed that he had been hired by Ray Brown to make a
"cocaine run" to Houston, from which he and Williams were
returning. The amount of cocaine found in their car was consistent
with an intent to distribute. A jury could reasonably infer that
two persons hired by the same drug dealer to pick up drugs from the
same two persons from exactly the same place at the same time and
who were travelling in the same car were conspiring to traffick in
cocaine.
We also reject Abron's argument that the district court
erred in enhancing his sentence two base offense levels for
obstruction of justice under U.S.S.G. § 3C1.1. The official
Commentary explains that "[u]nder this section, the defendant is
accountable for his own conduct and for conduct that he aided or
abetted . . . ." U.S.S.G. § 3C1.1, n.7. Abron stood by, taking
part in Williams's elaborate ruse to assist the law officers in
apprehending Ray Brown. Because Abron knew Williams was using a
false name, Abron knew the effort was doomed to fail and knew he
was wasting the officers' time. The district court did not err in
finding that Abron had obstructed, and aided or abetted in
obstructing, justice.
III. CONCLUSION
The convictions and sentences of the appellants are
AFFIRMED.
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