United States v. Thomas ( 2003 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40284
UNITED STATES OF AMERICA,
Plaintiff- Appellee
v.
LATORSHA JINENE THOMAS,
Defendant - Appellant
Appeal from the United States District Court
For the Eastern District of Texas, Beaumont
1:01-CR-11-ALL
__________________________________________________
January 8, 2003
Before HIGGINBOTHAM, DAVIS, Circuit Judges, and Hudspeth,
District Judge.*
PER CURIAM:**
I.
Thomas appeals her conviction for conspiracy to distribute,
and to possess with the intent to distribute, fifty grams or more
*
District Judge of the Western District of Texas, sitting by
designation.
**
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this opinion should not be published and is not precedent except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.
of cocaine base in violation of 21 U.S.C. §§ 841(a)(1)and 846.
Following a jury trial, the district court sentenced Thomas to
235 months in prison and five years of supervised release.
Thomas appeals her conviction on several grounds. First,
Thomas contends there was insufficient evidence to support her
conviction and that the district court erred in overruling her
motion for an instructed verdict. Second, Thomas contends that
the district court erred in calculating the drug quantity for
sentencing purposes and erred in overruling her objection to the
Presentence Investigation Report which she alleges attributed an
excessive amount of controlled substance to Thomas. Third,
Thomas contends the district court erred in denying her motion
for a downward departure based on her family circumstances. We
affirm both Thomas’s conviction and sentence.
II.
Beaumont police officers stopped Ronald Ross and Greginald
Jones on Interstate Highway 10 in March 2000. During the stop,
police searched the vehicle and discovered 305 grams of crack
cocaine. The police arrested both men.
Shortly after his arrest, Ross decided to cooperate with the
police and named Thomas as his source for the drugs. Ross
informed investigators that he and Jones had purchased crack
cocaine from Thomas in Houston on several occasions. Ross
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explained that the parties coordinated the drug transactions
using cellular phones, and that he would travel from Crowley,
Louisiana, to Houston, Texas, to retrieve the drugs from Thomas.
Ross contacted Thomas as part of a sting operation and
arranged another purchase of crack cocaine. Although Ross and
Thomas never completed the transaction, police made recordings of
telephone conversations concerning the transaction.
A grand jury indicted Thomas for conspiracy to distribute
crack cocaine in violation of 21 U.S.C. § 846. Both Ross and
Jones testified about the conspiracy at Thomas’s trial. A jury
convicted Thomas, and the district court sentenced Thomas at the
minimum guideline range of 235 months in prison and five years of
supervised release.
III.
Thomas contends there was insufficient evidence to support
her conviction and the district court erred in overruling her
motion for an instructed verdict. Although Thomas moved for a
judgment of acquittal after the Government presented its case-in-
chief, she failed to renew her motion after she presented her
defense and at the close of all the evidence. Therefore, this
court’s review of the sufficiency of the evidence is limited to
determining “whether there was a manifest miscarriage of
justice.” United States v. McIntosh, 280 F.3d 479, 483 (5th
3
Circ. 2002) (internal citation omitted). “That occurs only where
the record is devoid of evidence pointing to guilt or contains
evidence on a key element of the offense [that is] so tenuous
that a conviction would be shocking.” Id. (internal quotation
marks and citation omitted).
Thomas argues that the evidence was insufficient to
support her conviction because the Government failed to establish
that there was a conspiracy or that she participated in it. At
Thomas’s trial, Ronald Ross and Greginald Jones testified that on
three occasions in March 2000, Thomas “fronted” them various
amounts of cocaine base, including the 305 grams of cocaine base
authorities seized from Ross and Jones on March 14, 2000. Ross
and Jones identified Thomas’s voice on recordings made by the
Government in the sting operation. The Government presented
telephone records showing a pattern of telephone activity
corroborating the testimony of Ross and Jones. The record thus
contained sufficient evidence to establish that Thomas conspired
with Ross and Jones to distribute, and to possess with the intent
to distribute, cocaine base. Additionally, Thomas argues that
the Government presented insufficient evidence to prove that
venue in the Eastern District of Texas was proper. However,
Thomas waived this issue on appeal by failing to raise a proper
objection to venue before the jury’s verdict. See United States
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v. Carbajal, 290 F.3d 277, 288-89, (5th Cir. 2002), petition for
cert. filed (U.S. Jul. 18, 2002) (No. 02-5898).
For these reasons, Thomas failed to demonstrate that her
conviction based on the evidence presented was a manifest
miscarriage of justice. We therefore affirm Thomas’s conviction.
IV.
Thomas contends next that the district court clearly erred
in calculating her drug quantity for sentencing purposes. Thomas
argues that the testimony of Ross and Jones, both of whom were
admitted drug dealers seeking favorable treatment, was not
sufficiently reliable to permit the district court to calculate
a specific quantity of drugs.
A district court’s determination regarding the quantity of
drugs on which the defendant’s sentence should be based is a
factual finding reviewed for clear error. United States v.
Morris, 46 F.3d 410, 422 (5th Cir. 1995)(citing United States v.
Mitchell, 964 F.2d 454, 457 (5th Cir. 1992)). In making its
sentencing decisions, a "district court may consider any relevant
evidence ‘without regard to its admissibility under the rules of
evidence applicable at trial, provided that the information has
sufficient indicia of reliability to support its probable
accuracy.’" United States v. Davis, 76 F.3d 82, 84 (5th Cir.
1996) (citing U.S.S.G. § 6a1.3; United States v. Michael, 894
5
F.2d 1457, 1461-62 (5th Cir. 1990)).
A Presentence Report (“PSR”) is considered reliable and may
be treated as evidence by the court when making sentencing
determinations. United States v. Vital, 68 F.3d 114, 120 (5th
Cir. 1995). If no rebuttal evidence is submitted to refute the
information in the PSR, the sentencing court is free to adopt
that information as its findings without further inquiry or
explanation. Id. The defendant bears the burden of
demonstrating that information the district court relied on at
sentencing is “materially untrue.” Davis, 76 F.3d at 84 (citing
United States v. Vela, 927 F.2d 197, 201 (5th Cir. 1991)).
The PSR determined that Thomas had conspired with Ross and
Jones to distribute 1,139 grams, or 1.13 kilograms, of cocaine
base. Thomas objected at trial to the PSR’s drug-quantity
determination, arguing that although the PSR related that she
delivered cocaine base to Ross on four occasions in October 1999,
she could not have done so because, as the PSR also indicated,
she was incarcerated during October 1999. Thomas further
asserted that there was no scientific evidence regarding any
amounts of cocaine base other than the 305 grams seized from Ross
and Jones on March 14, 2000. The PSR addendum stated that the
probation officer’s drug-quantity determination was based upon
statements provided by Ross during debriefings with Drug
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Enforcement Administration agents and the United States
Attorney’s Office and that those statements were corroborated by
the trial testimony of Ross and Jones and other evidence
presented at trial, such as phone records.
At sentencing, Thomas renewed her objection to the PSR’s
drug-quantity determination, but did not present any rebuttal
evidence. Concluding that the PSR was based upon information of
sufficient trustworthiness and reliability, the district court
adopted the PSR’s drug-quantity determination and overruled
Thomas’s objection.
The district court was free to adopt the PSR’s determination
without further inquiry because Thomas failed to present any
evidence at sentencing to support her objection to the PSR’s
drug-quantity determination. Accordingly, the district court did
not clearly err in determining the amount of drugs attributable
to Thomas for sentencing purposes.
V.
Finally, Thomas argues that the district court erred in
denying her motion for a downward departure based on her family
circumstances. Thomas asserts that the district court failed
even to consider family obligations as a circumstance that could
lead to a departure.
This court lacks jurisdiction to review a defendant’s
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challenge to his sentence based upon mere dissatisfaction with
the district court’s refusal to grant a downward departure.
United States v. DiMarco, 46 F.3d 476, 477 (5th Cir. 1995).
Jurisdiction will lie, however, if the sentencing court’s refusal
to depart downward was the result of a violation of law in that
the court mistakenly assumed that it lacked the authority to
depart. United States v. Landerman, 167 F.3d 895, 899 (5th Cir.
1999). But to establish such a violation of law, the record
must indicate that the district court held the erroneous belief
that it lacked the authority to depart. Id.“Family ties and responsibilities . . . are not ordinarily
relevant in determining whether a sentence should be outside the
applicable guideline range.” U.S.S.G. § 5H1.6, p.s. (2002).
Unless there are unique or extraordinary circumstances, it is
improper for the district court to depart downward from the
guideline range based on the defendant’s parental
responsibilities. United States v. Brown, 29 F.3d 953, 961 (5th
Cir. 1994).
Thomas contends that the district court’s belief that it had
no authority to consider family circumstances as a possible
ground for departure is evidenced by the district court’s
statement that:
And there’s a lot of literature on this recently
on family obligations, whether they should or
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should not play any part, and that is even
going to be the subject of some forthcoming
possible change in the guidelines. But
they’ve not changed yet, and they’re to be
treated equally, . . . depending on the drug
amount.
We disagree. We do not read Judge Howell Cobb’s statement as
expressing a belief that the court could not downwardly depart;
rather, we view this as a statement that literature and guideline
changes were available or expected to give guidance to the court
on when a departure is justified because of family circumstances.
We therefore affirm the district court’s denial of Thomas’s
motion for a downward departure based on her family
circumstances.
VI.
For the reasons stated above, we affirm Thomas’s conviction
and sentence.
AFFIRMED.
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