United States v. Barnett ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________________
No. 00-10636
_______________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JIMMY RAY BARNETT,
Defendant-Appellant.
_________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(6:99-CR-063-C)
_________________________________________________
August 31, 2001
Before JOLLY, SMITH, and WIENER, Circuit Judges.
PER CURIAM*:
Defendant-Appellant Jimmy Ray Barnett challenges his
convictions for conspiracy to possess methamphetamine and
possession with intent to distribute methamphetamine and
amphetamine, as well as his sentences for those convictions. We
affirm.
*
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this opinion should not be published and is not precedent except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
I.
FACTS AND PROCEEDINGS
In 1998, Barnett and his associates became the objects of a
methamphetamine (“meth”) distribution investigation by Texas
Narcotics officials. Court-authorized surveillance led them to
believe that Barnett and others were involved in an extensive drug
distribution scheme. During a traffic stop of Tommy Haynes, an
associate of Barnett, police recovered approximately 110 grams of
meth and 50 grams of amphetamine. They discovered that B & W
Motors (“B & W”), Barnett’s place of business, held a lien on the
van driven by Haynes. A subsequent search of B & W yielded drug
paraphernalia and a ledger that the investigating officers believed
was used to record drug transactions.
Based on this information and the information recovered from
the surveillance, the investigating officers sought and received
four search warrants. Pursuant to one of these warrants, they
executed a search of Barnett’s residence. During this search, the
agents recovered drug paraphernalia which included measuring
scales, ledgers, how-to books, chemical equations, counter-
surveillance materials, cutting agents, and a small amount of meth,
as well as the phone number of Jimmy Don Hardin, another suspected
conspirator. A subsequent search of Hardin’s residence turned up
over 300 grams of meth and Barnett’s phone numbers. Surveillance
(wiretaps and pen registers) information documented numerous
telephone calls between Hardin and Barnett.
2
The following month, Barnett was charged on five counts:
Conspiracy to Distribute and Possess with Intent to Distribute 50
grams or more of Methamphetamine (Count 1); Possession with Intent
to Distribute 50 grams or more of Methamphetamine (Count 3);
Possession with Intent to Distribute Amphetamine and
Methamphetamine (Count 4 and 6); and Felon in Possession of a
Firearm (Count 8). These charges were based on the information
recovered from his residence, the residence of his alleged co-
conspirators, and surveillance of his home and business.
In a pre-trial motion, Barnett contested the validity of the
search of his residence on the grounds that the information on the
basis of which the warrant issued was insufficient to establish a
nexus between his residence and any alleged drug conspiracy, and
that the officers who executed the warrant could not have relied on
it in good faith. After hearing testimony from Agent Navarro, the
law enforcement official whose affidavit supported the warrant, the
district court denied Barnett’s suppression request.
At the completion of a jury trial in which three of his co-
conspirators testified for the government, Barnett was convicted on
all five counts. The district court sentenced him to 480 months on
Counts 1 and 3, 240 months on Count 4 and 6, and 120 months on
Count 8, with all sentences to run concurrently. Barnett timely
filed a notice of appeal.
II.
ANALYSIS
3
A. Evidence from Search of Barnett’s Residence
1. Standard of Review
When reviewing a denial of a motion to suppress involving a
search warrant, we engage in a two-step process: We first determine
whether the good-faith exception to the exclusionary rule,
clarified in United States v. Leon, applies;1 then, if we conclude
that the officers did not act in good faith reliance on a facially
valid warrant, we determine whether the magistrate had a
substantial basis for finding that probable cause existed.2 If,
however, we are satisfied that the good-faith exception applies, we
do not reach the question of probable cause.3 We review the
underlying findings of fact for clear error, but we review the
determination of good faith de novo.4 Accordingly, we review de
novo the district court’s determination of the reasonableness of
the executing officer’s reliance on the warrant.
2. Good Faith
After Barnett’s suppression hearing, the district court
determined that (1) there was probable cause for the issuance of
1
United States v. Leon, 468 U.S. 897 (1984).
2
United States v. Cherna, 184 F.3d 403, 407 (5th Cir. 1999).
3
Id. (quoting United States v. Craig, 861 F.2d 818, 820 (5th
Cir. 1988) (“Principles of judicial restraint and precedent dictate
that, in most cases, we should not reach the probable cause issue
if a decision on the admissibility of the evidence under Leon will
resolve the matter.”).
4
Id.4
the warrant, (2) the police acted in good faith, and (3) a
sufficient nexus between the drug conspiracy and Barnett’s
residence justified the search. Barnett contests the district
court’s determination of good faith on two grounds: Agent Navarro
omitted material facts from his affidavit in support of a search
warrant; and the agent failed to establish a nexus between the
items searched for and Barnett’s residence.
The Fourth Amendment does not require suppression of evidence
obtained from an objectively reasonable warrant even if the warrant
is later found to be deficient.5 The Amendment requires only that
the law enforcement officer’s reliance on the warrant be
objectively reasonable. The good-faith exception does not apply,
and suppression is an appropriate remedy, under any one or more of
four situations: (1) The issuing magistrate was misled by an
affiant who knowingly, or with reckless disregard for the truth,
provided the affidavit on which the magistrate relied; (2) the
magistrate wholly abandoned his judicial role and acted as part of
the law enforcement team; (3) the law enforcement officer relied on
a warrant based on an affidavit so lacking in indicia of probable
cause as to render belief in its existence entirely unreasonable;
(4) the warrant itself was so facially deficient that the executing
officers could not have reasonably relied on its validity.6
5
Leon, 468 U.S. at 922.
6
Cherna, 184 F.3d at 407-08.
5
Satisfied that the district court’s findings are free of clear
error, we conclude that none of these four situations is present in
Barnett’s case. First, as found by the district court, Agent
Navarro, on whose affidavit the magistrate relied, neither
materially misstated any facts in his affidavit nor omitted any
material facts from it. He was an experienced law enforcement
officer who included the relevant aspects of his investigation in
his statement to the magistrate. Second, the magistrate did not
abandon his judicial role and act as part of the law enforcement
team. The district court found that the magistrate was impartial
and that he based his decision solely on the information within the
four corners of the affidavit. Third, the affidavit and warrant
were not so lacking in indicia of probable cause as to make
reliance on them entirely unreasonable. As we have held, when a
warrant is supported by more than a “bare bones” affidavit,
officers may assume in good faith that it is valid.7 Here, Agent
Navarro’s affidavit detailed the results of the criminal
investigation leading up to the seeking and granting of the
warrant. It included specific information derived from the
surveillance of Barnett and his co-conspirators. Finally, the
7
United States v. Fields, 72 F.3d 1200, 1214 (5th Cir. 1996)
(“When a warrant is supported by more than a ‘bare bones’ affidavit
officers may rely in good faith on the warrant’s validity. Bare
bones affidavits contain wholly conclusory statements, which lack
the facts and circumstances from which a magistrate can
independently determine probable cause.”) (citing United States v.
Satterwhite, 980 F.3d 317, 320-21 (5th Cir. 1992)).
6
warrant itself was not facially deficient. It specified the place
to be searched and the evidence to be seized, if found. The
district court found that Agent Navarro’s affidavit established an
ongoing pattern of criminal activity and that it contained nothing
to indicate that, after the activity had ceased to operate from B
& W, Barnett had moved his drug distribution operation anywhere but
to his home.
As the actions of the magistrate and the executing officers do
not fall into any of the four situations described above, the good-
faith exception applies. The district court correctly concluded
that the evidence recovered from the search of Barnett’s residence
need not be suppressed. Having decided on the admissibility of the
seized evidence under the Leon guidelines, we follow the teachings
of Cherna and Craig and decline to address whether the magistrate
had a substantial basis for finding probable cause.
B. Drug Quantity Determination
1. Standard of Review
We review the district court’s determination of the amount of
drugs for which a defendant is responsible for clear error.8 We
will affirm a district court’s sentence based on its drug quantity
determination if the sentence results from a correct application of
the sentencing guidelines to factual findings that are not clearly
8
United States v. Mergerson, 4 F.3d 337, 345 (5th Cir.
1993).
7
erroneous.9 A district court’s finding is not clearly erroneous if
it is plausible in light of the record as a whole.10
2. Barnett’s Responsibility for More than 5 Kilograms
The Presentence Report (“PSR”) concluded, and the district
court found, that Barnett was responsible for over 5 kilograms of
meth. Accordingly, the PSR determined, and the court applied, a
base offense level of 36 under the sentencing guidelines. During
his sentencing hearing, Barnett argued that he could not be held
responsible for 5 kilograms and that, at most, his base level
should be 30. We discern the district court’s determinations in
this regard to be plausible in light of the record as a whole, and
therefore affirm.
The offense level for a defendant convicted of drug
trafficking is determined by the quantity of drugs for which he is
responsible.11 Barnett is responsible for the amount of meth with
which he was directly involved plus any amounts attributable to him
as reasonably foreseeable within a jointly undertaken criminal
activity.12 Reasonable foreseeability, however, does not
9
United States v. Sparks, 2 F.3d 574, 586 (5th Cir. 1993).
10
Id.11
U.S.S.G. § 1B1.3 n. 2; United States v. Puig-Infante, 19
F.3d 929, 942 (5th Cir. 1994).
12
Id.8
automatically follow from membership in a conspiracy.13 To
attribute a drug quantity to Barnett through reasonable
foreseeability, the sentencing court must specifically find (1) the
quantity of drugs encompassed by the conspiracy and (2) the portion
of such quantity that Barnett knew about or should have foreseen.14
Here, the district court did not make these findings, but simply
stated conclusionally, in response to Barnett’s objections at his
sentencing, that Barnett was responsible for more than 5 kilograms
of meth. We cannot, therefore attribute the conspiracy’s total
drug amount to Barnett on nothing more than the bare statement of
the court, but instead must limit our review to whether, based on
the evidence of Barnett’s direct involvement with meth, the
district court clearly erred in finding him responsible for more
than 5 kilograms.
During sentencing, the government introduced four ledgers
seized during the searches of the B & W premises and Barnett’s
residence. Agent Navarro, an experienced narcotics officer,
testified that one of the ledgers seized from the residence
detailed drug transactions totaling 1.8 to 2 kilograms. Navarro
also testified that a second ledger, seized at B & W, evidenced
13
Puig-Infante, 19 F.3d at 942 (“For a particular defendant,
however, ‘reasonable forseeability does not follow automatically
from proof that [the defendant] was a member of a conspiracy.’”)
(quoting United States v. Puma, 937 F.2d 151, 160 (5th Cir. 1991)
cert. denied, 502 U.S. 1092 (1992)).
14
Id.9
drug transactions totaling 2.2 to 2.5 kilograms. Based on these
two ledgers alone, Barnett was directly involved with up to 4.5
kilograms of meth. Additionally, when questioned about the other
two ledgers presented at the sentencing hearing, Agent Navarro
testified that even though these ledgers did not specify dates or
exact quantities, they accounted for multi-pound amounts of meth.
Finally, Barnett admits that he can be held responsible for the 3
pounds of meth sold to him by Jimmy Don Hardin, a co-conspirator.
As one pound equals roughly 0.45 of a kilogram, three pounds would
equal approximately 1.36 kilograms. Even if we use only the
minimum amounts of 1.8 and 2.2 kilograms represented by the two
ledgers and add the 1.36 kilograms concededly acquired from Hardin,
Barnett is responsible for more than 5 kilograms.
Arguing that aggregating the quantities represented by all
four ledgers plus the amount attributable to him through acts of
co-conspirators constitutes “double counting,” Barnett contends
that he was involved with less than 5 kilograms, 4.5 kilograms at
the most. When viewed as a whole, however, the record does not
preclude the possibility that the transactions reflected in the
four ledgers and the transaction between Barnett and Hardin,
represent separate and non-overlapping transactions. The district
court thus reached a plausible conclusion when it found Barnett
responsible for more than 5 kilograms. Constrained by our
deferential standard of review, we cannot conclude that the
district court’s drug quantity determination was clearly erroneous.
10
C. Sentence Enhancement for Leader/Organizer
1. Standard of Review
Determination whether a defendant is a U.S.S.G. § 3B1.1 leader
or organizer is a factual one.15 Therefore, we cannot disturb the
district court’s findings regarding Barnett’s role as “an organizer
or leader of a criminal activity that involved five or more
participants or was otherwise extensive,” unless we conclude that
those findings are clearly erroneous.16
2. Barnett’s Role as a Leader/Organizer
Unlike some of our fellow circuits, we treat § 3B1.1 analysis
disjunctively. When determining whether a criminal organization is
“otherwise extensive,” we consider the totality of the evidence.17
Here, we must determine whether, in light of the record as a whole,
it is plausible that Barnett was more than a mere buyer and seller,
but did in fact exert authority and control over others. For
assessing a defendant’s role as a leader/organizer, the Sentencing
Guidelines direct a court to consider (1) the exercise of decision
making authority, (2) the nature of participation in the commission
15
United States v. Valencia, 44 F.3d 269, 272 (5th Cir.
1995).
16
Id. at 347.
17
See United States v. Wilson, 240 F.3d 39, 47 (D.C. Cir.
2001) (recognizing that circuits are currently split on the factors
relevant to an activity being “otherwise extensive” and noting that
this circuit has chosen to look to a broad range of factors beyond
the number of persons involved to determine “otherwise extensive”
activity).
11
of the offense, (3) the claimed right to a larger share of the
fruits of the crime, (4) the degree of participation in planning or
organizing the offense, (5) the nature and scope of the illegal
activity, and (6) the degree of control and authority exercised
over others.18
Testimony at Barnett’s trial revealed three facts relevant to
these criteria. First, at one time or another, five persons named
in the indictment worked for Barnett at B & W.19 Four of those
subordinates pleaded guilty to various violations of the Controlled
Substance Act and are awaiting sentencing. Second, the ledgers and
drug equipment recovered suggest that Barnett was purchasing and
selling distribution quantities of meth, not merely personal use
quantities. Finally, as confirmed by Agent Navarro’s testimony,
ledgers like the ones kept by Barnett, which contain monetary
figures and drug quantities, are generally used only when the
keeper of the ledger is “fronting” money and drugs to others who
subsequently sell the drugs. Based on these facts, Agent Navarro
was of the opinion, and so testified, that Barnett was involved in
all aspects of the drug distribution scheme, including acquisition,
packaging, redistribution, and collection of monies. Admittedly,
no direct evidence precisely establishes that Barnett directed and
18
U.S.S.G. § 3B1.1 n. 4.
19
Agent Navarro testified that Michael Pallone, Danny
Sturgill, Carlos Sanchez, Randy Dupre, and Tracie Barnett were at
one time or another employees of B & W.
12
controlled other participants.20 Still, a strong inference to that
effect flows from the master-servant relationship at B & W. On the
other hand, even though some record evidence suggests that Barnett
profited from these crimes, none suggests that he ever asserted a
right to a larger share of the profits than anyone else.
Given these countervailing facts and inferences, and the other
enhancement options available to the district court, Barnett’s role
as a leader/organizer presents a close question.21 The district
court did not articulate the factual basis for its leadership
determination. We noted in United States v. Valencia, however,
that the district court’s statement that a defendant is a manager
or leader is itself a finding of fact, and proceeded to affirm the
district court’s § 3B1.1 finding in the absence of a specifically
articulated factual basis.22 Relying on our rulings in United
20
See United States v. Ronning, 47 F.3d 710, 712 (5th Cir.
1995) (“Consequently, a leader or organizer must control or
influence other people.... Management responsibility does not make
a leader or organizer.”).
21
U.S.S.G. § 3B1.1 provides, in relevant part:
Based on the defendant’s role in the offense, increase the
offense level as follows:
(a) If the defendant was an organizer or leader of a criminal
activity that involved five or more participants or was otherwise
extensive, increase by 4 levels.
(b) If the defendant was a manager or supervisor (but not an
organizer or leader) and the criminal activity involved five or
more participants or was otherwise extensive, increase by 3 levels.
(c) If the defendant was an organizer, leader, manager, or
supervisor in any criminal activity other than described in (a) or
(b), increase by 2 levels.
22
See United States v. Valencia, 44 F.3d 269, 273 (5th Cir.
1995) (quoting United States v. Mejia-Orosco, 867 F2d 216, 221 (5th
13
States v. Mejia-Orosco and Valencia and assessing the plausibility
of the district court’s finding in light of the admittedly
ambivalent record — plus armed with the knowledge that the
sentencing judge presided over the trial and had the advantage of
hearing the testimony first-hand, noting all inflections and
observing facial expressions and body language — we have sufficient
confidence in the district court’s finding to conclude that it did
not clearly err in branding Barnett a leader or organizer.
D. Apprendi Error
1. Standard of Review
Barnett did not object at trial to the fact that the jury did
not establish drug quantity beyond a reasonable doubt. We
therefore review the district court’s actions for plain error.23
2. Harmlessness of Apprendi Error
Apprendi teaches that when drug quantity is an essential
Cir. 1989), cert. denied, 492 U.S. 924 (1989) (“[T]he district
court’s simple statement that the defendant is a ‘manager’ or
‘leader’ is a finding of fact.”)).
We note, however, that while Mejia-Orosco and Valencia stand
for the proposition that we do not categorically require the
district court to articulate a specific factual basis for its
determination, we stress that, whenever possible, the district
court should include a statement of such findings. See Valencia,
44 F.3d at 273 (quoting Mejia-Orosco, 867 F.2d at 221 “We recognize
that so formal a requirement would interfere with the smooth
operation of the sentencing hearing. In some instances, what is
necessarily a ‘judgment call’ may not be susceptible to
particularization. Nonetheless, we urge the district court to
clarify their ultimate factual findings by more specific findings
when possible.”)(emphasis added)).
23
United States v. Miranda, 248 F.3d 434, 443 (5th Cir.
2001).
14
element of the offense and the government may seek an enhanced
penalty based on quantity, the district court’s instructions must
expressly identify drug quantity as an essential element to be
proved by the prosecution beyond a reasonable doubt.24 Here, the
drug quantity was expressed both in the indictment and on the jury
verdict form. Thus, even though the district court (which did not
have the benefit of the Supreme Court’s Apprendi opinion) did not,
in its jury charge, specifically instruct the jury to find drug
quantity beyond a reasonable doubt, the jury was arguably asked to
find beyond a reasonable doubt whether Barnett was involved in a
conspiracy to distribute, and possessed with intent to distribute,
over 50 grams of meth: (1) The quantity was specified in the
indictment; (2) the quantity was set forth on the form provided by
the court for the jury’s verdict; and (3) the jury was instructed
generally that the government must prove its case beyond a
reasonable doubt.
Nevertheless, Apprendi sets a more exacting standard.25 In
Clinton, we held that even though the jury was arguably asked to
find drug quantity, and may have understood all the elements of the
offense including quantity, Apprendi error existed because the jury
was not expressly directed to find beyond reasonable doubt that the
24
Apprendi v. New Jersey, 530 U.S. 466 (2000); United States
v. Clinton, 256 F.3d 311, 315 (5th Cir. 2001).
25
Clinton, 256 F.3d at 315.
15
conspiracy involved 50 grams or more of cocaine base.26 Hence, the
district court’s Apprendi error here is plain.
This determination does not, however, end our inquiry. Even
when plain error is committed, we still must determine whether the
error was harmless.27 When a jury is not instructed as to an
element of an offense, we test “whether the record contains
evidence that could rationally lead to a contrary finding with
respect to the omitted element.”28 Here, in light of the large,
multi-kilo quantity of meth involved, the jury could not have
rationally found Barnett responsible for less than 50 grams of
meth. During trial and sentencing Barnett disputed his
responsibility for more than 5 kilograms of meth; he never disputed
his responsibility for 50 grams. Using only one of the ledgers
seized from his residence, Barnett would be responsible for at
least 1.8 kilograms of meth. Furthermore, Barnett conceded that he
could be held responsible for the 3 pounds (1.36 kilograms) of meth
that he purchased from Hardin. Given the inclusion of drug
quantity in the indictment and on the verdict form returned by the
jury, together with a plethora of trial evidence regarding
kilograms of contraband directly attributable to Barnett, we are
firmly convinced that the Apprendi error here was harmless.
26
Id.27
Id.28
Id. (quoting Neder v. United States, 527 U.S. 1 (1999)).
16
III.
CONCLUSION
For the foregoing reasons, Barnett’s conviction and sentence
are
AFFIRMED.
17