United States v. Buchanan ( 1995 )

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
____________
No. 93-8730
____________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DIANA GONZALES BUCHANAN, FEDELL ANDERSON, VERNON
BONNER, and JOHN BUCHANAN,
Defendants-Appellants.
__________________________________________________
Appeal from the United States District Court
For the Western District of Texas
__________________________________________________
November 29, 1995
Before REYNALDO G. GARZA, BARKSDALE, and EMILIO M. GARZA, Circuit
Judges.
EMILIO M. GARZA, Circuit Judge:
Diana Gonzales Buchanan, John Buchanan, Vernon Bonner, and
Fedell Anderson appeal their convictions for various crimes arising
out of their involvement in a crack cocaine conspiracy. We affirm
the convictions of all the co-defendants. We affirm the sentences
of Diana Gonzales Buchanan, Vernon Bonner, and Fedell Anderson. We
vacate John Buchanan's sentence on counts three and four, and
remand for resentencing on whichever charge the government chooses
to proceed with. We affirm John Buchanan's sentence in all other
respects.
I
Diana and John Buchanan distributed crack cocaine out of their
home in Houston. An informant, Ernest "Easy" McDay, began working
with the Austin Police Department ("APD") to build a case against
the Buchanans. McDay had served as a middleman on some of the
Buchanans' Austin drug sales, and was facing drug charges of his
own when he agreed to help APD. John Buchanan contacted McDay to
broker a drug transaction with another party in Austin. Pursuant
to this transaction, John Buchanan, Fedell Anderson, Lawrence
Crane,1 and Vernon Bonner drove to Austin in Anderson's 1985
Cadillac. The group drove to McDay's apartment, and Bonner and
Crane conducted an armed sweep of the premises to make sure that no
one else was present. John Buchanan and Anderson then entered, and
McDay proceeded to set up the sale.
After making the sale, the group went to a night club. John
Buchanan, Anderson, and McDay went inside, where McDay phoned his
APD contact and reported what had transpired. McDay also informed
his APD contact that the group was armed, possibly with automatic
weapons, and that the car contained a large amount of crack
cocaine. APD officers proceeded to the night club and began
surveillance on Anderson's car. The officers testified that Crane
never strayed more than a few feet from the car, standing next to
or sitting inside the car at all times. Bonner apparently never
exited the vehicle, but remained seated in the backseat of the car.
Lawrence Crane, a juvenile, was not a party to this proceeding.
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The officers believed that the two men were guarding the car.
About forty-five minutes after the surveillance began, John
Buchanan and Anderson exited the club, got back in the car, and
proceeded up the street. Not far from the night club, a marked
police car stopped the Cadillac. The police removed the men from
the car and frisked each one, finding a loaded .380 caliber pistol
in Crane's belt. In securing the car, the police also found a
loaded, fully automatic 9 mm. weapon and a loaded, semi-automatic
9 mm. pistol with an extra magazine. The police arrested the four
men and took the vehicle to the station, where the officers
obtained a warrant to search the vehicle. The police found two
baggies containing approximately 280 grams of crack cocaine
"cookies" inside the left-rear fender well, under a plastic vent
where the door closes.
About a week later, the Houston Police Department ("HPD") went
to the Buchanans' home to execute an arrest warrant for Diana
Buchanan on a state charge of "Combative Aggravated Assault."2 The
officers were not oblivious to the Buchanans' drug activities. The
officers present were all members of a joint HPD and Bureau of
Alcohol, Tobacco, and Firearms ("ATF") anti-gang task force, which
had been investigating the Buchanans for several months. An
informant had indicated that the Buchanans were supplying Houston
gangs with large quantities of crack cocaine, and officers had
This arrest warrant was unrelated to John Buchanan's arrest in
Austin. The warrant arose instead from allegations that Diana Buchanan had shot
another woman at a taco stand.
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attempted to negotiate an agreement to purchase six ounces of crack
cocaine from the Buchanans. In addition, APD had contacted HPD
concerning John Buchanan's arrest in Austin, and had indicated to
HPD that drugs might be found at the Buchanan home.
Upon arriving at the Buchanan residence, the police knocked,
identified themselves, and announced to Diana Buchanan that they
were there to arrest her. While still outside the house, the
officers heard commotion from within and, fearing the destruction
of evidence, forcibly entered the residence. The officers secured
Diana Buchanan, and immediately conducted a "protective sweep"3 of
the premises to make sure no other persons were present. During
this sweep, the officers discovered, in plain view, two loaded
assault-style rifles. Further, upon entering the kitchen, one of
the officers observed several large baggies containing white powder
residue on the kitchen counter. The officer also observed white
powder and small "rock" chunks on the kitchen counter, floor, and
in the sink. The officers believed these substances to be cocaine.
A "field test" confirmed that the substance in the baggies was
cocaine. After securing the residence, the officers obtained a
search warrant. In the ensuing search, officers discovered
paraphernalia used to manufacture crack cocaine and approximately
200 grams of crack and powder cocaine jammed into the toilet. The
See Maryland v. Buie, 494 U.S. 325, 327, 110 S. Ct. 1093, 1094, 108
L. Ed. 2d 276 (1990) (defining a "protective sweep" as "a quick and limited
search of the premises, incident to an arrest and conducted to protect the safety
of police officers or others").
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officers also seized a 1988 Jaguar and a 1985 Mercedes-Benz.
The district court charged the four defendants as follows:
John Buchanan, Bonner, and Anderson with possession with intent to
distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1) and
18 U.S.C. § 2 (count one); John Buchanan, Bonner, Anderson, and
Diana Buchanan with conspiracy to possess with intent to distribute
cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 846 (count
two), and with aiding and abetting each other in using or carrying
a firearm during a drug-trafficking offense, in violation of 18
U.S.C. § 924(c) and 18 U.S.C. § 2 (count three); and John Buchanan
with using and carrying a machine gun during a drug-trafficking
offense, in violation of 18 U.S.C. § 924(c) (count four),
possessing a machine gun, in violation of 18 U.S.C. § 922(o) (count
five), and being a convicted felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g) (count six). All four defendants
were tried before a jury. The jury convicted John Buchanan on all
six counts. Anderson and Bonner were found guilty on counts one,
two, and three. Diana Buchanan was found guilty on count two.
II
A
Diana Buchanan contends that the district court erred in
denying her motion to suppress evidence seized from her residence
following her arrest. She argues that field testing the white
powder residue contained in several clear plastic baggies, found on
the kitchen counter of her home, constituted an impermissible
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"search" in violation of her Fourth Amendment rights. Diana
Buchanan maintains that all subsequently seized evidence of drug
trafficking should have been excluded as the fruits of this
unconstitutional search.
In reviewing a district court's denial of a motion to suppress
evidence, we review factual findings for clear error and
conclusions of law de novo. United States v. Cardenas, 9 F.3d
1139, 1147 (5th Cir. 1993), cert. denied, ___ U.S. ___, 114 S. Ct.
2150, 128 L. Ed. 2d 876 (1994). We must view the evidence in the
light most favorable to the party who prevailed below. Id. at
1147; United States v. Ramirez, 963 F.2d 693, 705 (5th Cir.), cert.
denied, ___ U.S. ___, 113 S. Ct. 388, 121 L. Ed. 2d 296 (1992).
The exclusionary rule mandates that, "evidence obtained in
violation of the Fourth Amendment cannot be used in a criminal
proceeding against the victim of [an] illegal search and seizure."
United States v. Calandra, 414 U.S. 343, 347, 94 S. Ct. 613, 619,
38 L. Ed. 2d 561 (1974). Under the Fourth Amendment, "searches
conducted outside the judicial process, without prior approval by
judge or magistrate are per se unreasonable . . . subject only to
a few specifically established and well-delineated exceptions."
Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514, 19 L.
Ed. 2d 576 (1967) (footnotes omitted). The "plain view" doctrine
is one of the "specifically established and well-delineated
exceptions" that may justify a warrantless seizure. Arizona v.
Hicks, 480 U.S. 321, 326, 107 S. Ct. 1149, 1153, 94 L. Ed. 2d 347
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(1987) ("It is well established that under certain circumstances
the police may seize evidence in plain view without a warrant.")
(citation and internal quotation marks omitted). The "plain view"
doctrine may also validate a warrantless search of an item, so long
as the item could lawfully have been seized. See Hicks, 480 U.S. at
326, 107 S. Ct. at 1153 ("It would be absurd to say that an object
could lawfully be seized and taken from the premises, but could not
be moved for closer examination.") Thus, to determine if the field
test was a permissible warrantless search, we must determine if the
officers could have lawfully seized the white powder residue
contained in the plastic baggies.
The "plain view" doctrine will justify a warrantless seizure
if: (1) the officers lawfully entered the area where the items
were located; (2) the items were in plain view; (3) the
incriminating nature of the items was "immediately apparent"; and
(4) the officers had a lawful right of access to the items. Horton
v. California, 496 U.S. 128, 136-37, 110 S. Ct. 2301, 2308, 110 L.
Ed. 2d 112 (1990). Diana Buchanan does not challenge the validity
of the arrest warrant, the officers' entry into her home, or the
protective sweep of her house. Therefore, the applicability of the
plain view exception in this case turns on whether the
incriminating nature of the white powder residue was "immediately
apparent" to the officers. Horton, 496 U.S. at 136-37, 110 S. Ct.
at 2308.
The incriminating nature of an item is "immediately apparent"
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if the officers have "probable cause" to believe that the item is
either evidence of a crime or contraband. Hicks, 480 U.S. at 326-
27, 107 S. Ct. at 1153. Probable cause does not require certainty.
See Texas v. Brown, 460 U.S. 730, 742, 103 S. Ct. 1535, 1543, 75 L.
Ed. 2d 502 (1983) (holding that probable cause "does not demand any
showing that such a belief be correct or more likely true than
false"). In reviewing probable cause determinations, we must
consider the totality of the circumstances))including the officers'
training and experience as well as their knowledge of the situation
at hand. See United States v. Buchner, 7 F.3d 1149, 1154 (5th Cir.
1993) (holding that a probable cause determination "must be viewed
in light of the observations, knowledge, and training of the law
enforcement officers involved in the warrantless search"), cert.
denied, ___ U.S. ___, 114 S. Ct. 1331, 127 L. Ed. 2d 378 (1994);
United States v. Fooladi, 703 F.2d 180, 183 (5th Cir. 1983)
(holding that a probable cause determination should consider "the
facts and circumstances known to the officer, and of which he has
reasonably trustworthy information").
The officers who executed the arrest warrant for Diana
Buchanan were experienced members of an HPD-ATF anti-gang task
force. They were aware of purported drug activity at the Buchanan
residence, and had been investigating the Buchanans for several
months. The officers were also aware that Diana Buchanan's husband
had just been arrested in Austin on drug and gun charges. When the
police officers knocked on the door and announced their presence,
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they heard commotion within the house. Upon entry, the officers
conducted a protective sweep during which they observed two
assault-style rifles, white powder and small rock crumbs on the
kitchen counter, floor, and sink, and several clear plastic bags
containing a white powder residue.4 Based upon the totality of
these circumstances, we hold that the officers had probable cause
to believe that the white powder residue contained in the plastic
baggies was contraband or evidence of a crime.5 Accordingly, the
officers could have lawfully seized the items. See Brown, 460 U.S.
at 740-43, 103 S. Ct. at 1542-43 (upholding plain view seizure of
"opaque, green party balloon" where presence of additional drug
paraphernalia along with officer's knowledge that balloons were
commonly used to transport narcotics amounted to probable cause).
Since the plain view doctrine would have supported a
warrantless seizure of the evidence, a warrantless search of the
items was also permissible.6 Hicks, 480 U.S. at 326, 107 S. Ct. at
According to the record, the officer who first entered the kitchen
during the protective sweep stated that it was "obvious" that cocaine residue and
small chunks of rock cocaine were "all over the kitchen."
We emphasize that the fact that the officers chose to field test the
substance does not indicate that they lacked probable cause to believe the
residue was contraband. Testing for certainty's sake will not, by itself,
undermine an otherwise valid probable cause determination. Cf. United States v.
Prandy-Binett, 995 F.2d 1069, 1073 (D.C. Cir. 1993) ("If [the defendant's]
perfume bag held clear ziplock bags containing white powder, the detectives also
would not have been sure whether he possessed cocaine or heroin (or some
innocuous substance). Yet that cannot be a reason for finding no probable
cause."), cert. denied, ___ U.S. ___, 114 S. Ct. 1196, 127 L. Ed. 2d 545 (1994).
This opinion should not be read to hold that the mere presence of
white powder residue in a plastic bag, by itself, will always give rise to
probable cause. We hold only that under the circumstances of the present case,
the incriminating nature of the evidence found in plain view was "immediately
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1153. Accordingly, we hold that the district court did not err in
admitting the evidence seized from the Buchanan residence
subsequent to the field test.7
B
Diana Buchanan next argues that the district court erred when
it admitted into evidence two taped conversations between her and
an HPD officer. Diana Buchanan maintains that the recording was
never properly authenticated. A district court has broad
discretion in determining whether or not a sound recording should
be admitted. United States v. Biggins, 551 F.2d 64, 66 (5th Cir.
1977). We will find error only where the district court abuses
this discretion. United States v. Eakes, 783 F.2d 499, 506-07 (5th
Cir.), cert. denied, 477 U.S. 906, 106 S. Ct. 3277, 91 L. Ed. 2d
567 (1986).
The government has the burden of demonstrating that the
recording, as played, "is an accurate reproduction of relevant
sounds previously audited by a witness." Biggins, 551 F.2d at 66.
Generally, this burden requires the government to demonstrate (1)
the operator's competency, (2) the fidelity of the recording
apparent." This factor distinguishes this case from the situation in Hicks. In
Hicks, the officer's search of the stereo was improper because, based upon his
knowledge and experience, he lacked probable cause to suspect that the equipment
was stolen or evidence of a crime. See Hicks, 480 U.S. at 328, 107 S. Ct. at
1154 (holding that "probable cause to believe the equipment was stolen was
required" to justify officer's search of stereo found in plain view).
John Buchanan also asserts that the district court erred in admitting
the evidence discovered subsequent to the field test at the Buchanan residence.
Having held that the evidence was lawfully admitted, we need not address this
argument.
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equipment, (3) the absence of material alterations, and (4) the
identification of relevant sounds or voices. Id.; United States v.
Stone, 960 F.2d 426, 436 (5th Cir. 1992). Although compliance with
the Biggins requirements is the "preferred method" of proceeding,
strict compliance is not required. See Biggins, 551 F.2d at 67
("[The district court's] discretion is not to be sacrificed to a
formalistic adherence to the standard we establish."). The
district court may admit the recording in the absence of these
requirements if, upon independent examination, the district court
is convinced that "the recording accurately reproduces the auditory
experience." Stone, 960 F.2d at 436 (citation omitted).
The recording in question includes two conversations in which
an undercover officer discusses purchasing cocaine with Diana
Buchanan. At the conclusion of each conversation, another voice
indicates the date and time of the conversations. Testimony
established that both officers present during the recording (an
undercover officer who attempted to negotiate the drug purchase and
the officer who indicated the time and date of the conversations)
could hear the conversations as they occurred. The officer who
gave the time and date of the conversations testified that he had
reviewed the tape being offered and could confirm that the tape was
indeed the one that he and the undercover officer had made, and
that the recording accurately represented the conversations as they
occurred. Further, this officer testified that after speaking with
Diana Buchanan during her arrest, he was "convinced" that the voice
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on the tape was Diana Buchanan's. Although the district court did
not elicit testimony as to all the Biggins elements, the officer
sponsoring the recording gave adequate testimony to support the
recording's reliability. All the voices were identified, and there
was no intimation that the tape had been altered. Further, the
testifying officer explained how the recording was made, and
testified as to its accuracy. Accordingly, we cannot say that the
district court abused its discretion in admitting the tape as an
accurate reproduction of relevant conversations. See United States
v. Lance, 853 F.2d 1177, 1181-82 (5th Cir. 1988) (holding
recordings properly authenticated where "law enforcement agents who
participated in the taped conversations testified that, according
to their memories, the audio and video tapes contained accurate
recordings of the conversations that occurred").
C
Diana Buchanan next argues that the district court erred in
increasing her offense level for "possession of a firearm" where
the jury acquitted her on the charge of aiding and abetting in
using or carrying a firearm during a drug-trafficking offense
(count three). See U.S.S.G., § 2D1.1(b)(1) ("If a dangerous weapon
(including a firearm) was possessed, increase by 2 levels."). The
district court's decision to apply § 2D1.1(b)(1) "is essentially a
factual determination reviewable under the clearly erroneous
standard." United States v. Rodriguez, 62 F.3d 723, 724 (5th Cir.
1995).
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The fact that the jury found Diana Buchanan not guilty of
using or carrying a firearm during a drug-trafficking offense, does
not bar the district court from increasing Diana Buchanan's offense
level under § 2D1.1(b)(1). While a conviction requires proof
beyond a reasonable doubt, a district court may sentence a
defendant within the Sentencing Guidelines on any relevant evidence
that "has sufficient indicia of reliability to support its probable
accuracy." U.S.S.G. § 6A1.3; United States v. Edwards, 65 F.3d
430, 432 (5th Cir. 1995). The police found two assault-style
weapons at Diana Buchanan's house. The police testified that Diana
Buchanan made statements indicating that she knew how to use these
weapons, and that she had contemplated firing them at police.
Police testimony also indicated that Diana Buchanan had used
firearms in the past, and reasonably knew that her co-conspirators
were carrying weapons in Austin. Judging from the record, the
district court's § 2D1.1(b)(1) two-level enhancement for possession
of a firearm was not clearly erroneous.8 In sentencing, "a
We distinguish this case from United States v. Pofahl, 990 F.2d 1456
(5th Cir.), cert. denied, ___ U.S. ___, 114 S. Ct. 266, 126 L. Ed. 2d 218 (1993).
In Pofahl, we held that where there is a factual dispute as to whether a
defendant "possessed" a gun within the meaning of § 2D1.1(b)(1), FED. R. CRIM. P.
32(c)(3)(D) requires the district court to either make a specific finding or
indicate that the firearm will not be used to enhance the defendant's sentence.
Pofahl, 990 F.2d at 1486. Here, however, Diana Buchanan's only objection to the
findings in the presentence report was based on her acquittal of the charge of
using or carrying a firearm during a drug-trafficking offense, in violation of
18 U.S.C. § 924(c). The fact that the jury acquitted Diana Buchanan on this
charge does not, without more, amount to a factual dispute with the presentence
report that Diana Buchanan possessed a firearm within the meaning of
§ 2D1.1(b)(1). The district court adopted the findings in the presentence
report. Without a specific factual controversy, further factual findings under
FED. R. CRIM. P. 32(c)(3)(D) are not required. Compare United States v. Mir, 919
F.2d 940, 943 (5th Cir. 1990) (holding that where defendant did not offer any
rebuttal evidence to refute presentence report, "district court . . . was free
to adopt facts in PSI without further inquiry") with Pofahl, 990 F.2d at 1486
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district court has wide discretion in determining which evidence to
consider and which testimony to credit." Edwards, 65 F.3d at 432.
Accordingly, we hold that the record in this case provides ample
evidence to support a § 2D1.1(b)(1) enhancement of Diana Buchanan's
offense level. See, e.g., Rodriguez, 62 F.3d at 724-25 (holding
that so long as weapon was accessible to defendant, fact that it
was never brandished and was unloaded does not negate a finding of
possession under § 2D1.1(b)(1)).9
(remanding for specific findings under FED. R. CRIM. P. 32(c)(3)(D) where
defendant objected to § 2D1.1(b)(1) enhancement for possession of a firearm that
he claimed "belonged to his roommate," and district court failed to make any
findings on this point).
Diana Buchanan also argues that the district court abused its
discretion in sentencing her to the maximum possible sentence under the
guidelines "in light of the unusual and tragic circumstances of Mrs. Buchanan's
background," or, in the alternative, that the district court should have departed
from the guidelines in sentencing her. There is no evidence that the district
court failed to take into account Diana Buchanan's "tragic circumstances." The
presentence report develops these factors, and the district court recognized that
Diana Buchanan had travelled a "rocky road." Nevertheless, the district court
felt that the maximum sentence was the appropriate punishment. Judging from the
record, we cannot say the district court abused its discretion by giving the
maximum sentence. So long as the district court acts within the guidelines, a
harsh sentence, in and of itself, does not constitute error. See United States
v. Ponce, 917 F.2d 841, 842 (5th Cir. 1990) ("[W]e will uphold the district
court's sentence so long as it results from a correct application of the
guidelines to factual findings which are not clearly erroneous.") (citation and
internal quotations omitted), cert. denied, 499 U.S. 940, 111 S. Ct. 1398, 113
L. Ed. 2d 453 (1991). To the extent that Diana Buchanan is attempting to contest
the district court's implicit decision not to depart from the guidelines, we have
previously held that the district court's decision not to depart is unreviewable
on appeal. United States v. Leonard, 61 F.3d 1181, 1185 (5th Cir. 1995). Diana
Buchanan, along with John Buchanan, also urges that the vast disparity between
the sentencing ranges for crack and powder cocaine, mandated by the guidelines,
violates equal protection principles contained in the Fifth Amendment. We have
repeatedly rejected this argument and do so again. See United States v. Cooks,
52 F.3d 101, 105 (5th Cir. 1995) (holding that the guidelines' stiffer penalties
for cocaine base do not violate equal protection); United States v. Cherry, 50
F.3d 338, 344 (5th Cir. 1995) ("The 100 to one ratio is extreme, but it is not
the province of this Court to second-guess Congress's chosen penalty. That is
a discretionary legislative judgment for Congress and the Sentencing Commission
to make."); United States v. Watson, 953 F.2d 895, 897-98 (5th Cir.) (holding
that "no unconstitutional infirmity exists in the Sentencing Guidelines'
treatment of crack vis-a-vis powder cocaine"), cert. denied, 504 U.S. 928, 112
S. Ct. 1989, 118 L. Ed. 2d 586 (1992).
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III
A
John Buchanan argues that the district court improperly
enhanced his sentence for being the "organizer or leader" of the
drug-trafficking organization. See U.S.S.G. § 3B1.1 ("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."). John Buchanan argues that no organization
existed, and that if one did exist, it did not include five or more
participants. Normally, we review a district court's finding
concerning a defendant's role in the offense for clear error.
United States v. Bethley, 973 F.2d 396, 401 (5th Cir. 1992), cert.
denied, ___ U.S. ___, 113 S. Ct. 1323, 122 L. Ed. 2d 709 (1993).
In this case, however, John Buchanan failed to object to the
district court's findings, and thus we review for plain error.
United States v. Lopez, 923 F.2d 47, 49 (5th Cir.), cert. denied,
500 U.S. 924, 111 S. Ct. 2032, 114 L. Ed. 2d 117 (1991). Plain
errors are errors which are both obvious and which affect the
defendant's substantial rights. United States v. Calverley, 37
F.3d 160, 163-64 (5th Cir. 1994) (en banc), cert. denied, ___ U.S.
___, 115 S. Ct. 1266, 131 L. Ed. 2d 145 (1995). Upon a showing of
plain error, an appellate court is empowered, but is not required,
to correct the error. Id. at 164. We will only correct a plain
error if it seriously affected the fairness, integrity, or public
reputation of the judicial proceeding. Id.
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The district court found that the drug distribution
organization in this case consisted of John Buchanan, Diana
Buchanan, Bonner, Anderson, and McDay. The presentence report also
included several other regular purchasers from the Buchanans, and
"other confidential informants in Houston, Texas." Judging from
the record, we cannot say that these findings amounted to plain
error. There was ample evidence to support the district court's
finding that a drug-trafficking organization of five or more
persons existed. Further, there was ample evidence that John
Buchanan was the leader of this group. Testimony indicated that
Crane and Anderson worked as "bodyguards" for John Buchanan, and
that John Buchanan directed their actions. McDay's testimony
confirmed that on the night of the arrest in Austin, John Buchanan
gave the others instructions, and they followed those instructions.
Testimony also indicated that John Buchanan had control over the
sale of drugs by his wife, Diana Buchanan. We hold that the
district court did not commit plain error in finding John Buchanan
to be the organizer or leader of this drug-trafficking group. See
U.S.S.G. § 3B1.1 comment. (n.4) ("Factors the court should consider
include the exercise of decision making authority . . . and the
degree of control and authority exercised over others."); see also
United States v. Fierro, 38 F.3d 761, 774 (5th Cir. 1994) (refusing
to consider whether district court erred in its factual findings at
sentencing because the defendant failed to object to the district
court's factual findings and "questions of fact capable of
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resolution at sentencing can never constitute plain error"), cert.
denied, ___ U.S. ___, 115 S. Ct. 1431, 131 L. Ed. 2d 312 (1995).10
B
John Buchanan next argues that his conviction on counts three
and four, both for using or carrying a firearm during a drug-
trafficking offense, violated the Double Jeopardy Clause. Count
three charged John Buchanan with violating 18 U.S.C. § 924(c) for
aiding and abetting in using or carrying two semi-automatic pistols
during the crime of possession with intent to distribute cocaine
base in violation of 21 U.S.C. § 841(a)(1). Count four charged
John Buchanan with violating 18 U.S.C. § 924(c) for using or
carrying a machine gun during the same predicate crime (possession
with intent to distribute cocaine base) relied on in count three.
As we have previously held, use of more than one gun during a
single drug-trafficking offense will not support multiple counts
under 18 U.S.C. § 924(c). United States v. Privette, 947 F.2d
1259, 1262 (5th Cir. 1991), cert. denied, 503 U.S. 912, 112 S. Ct.
John Buchanan argues that the punishment disparity between crack and
powder cocaine constitutes racial discrimination in violation of his Fifth
Amendment right to equal protection, and constitutes cruel and unusual punishment
in violation of the Eighth Amendment. John Buchanan also argues that the
guideline applicable to crack cocaine is unconstitutionally vague. We have
consistently rejected these arguments and do so again. See supra note 9; see
also United States v. Cherry, 50 F.3d 338, 342-44 (5th Cir. 1995) (holding that
the sentencing guidelines’ disparate treatment of crack cocaine is not racially
discriminatory under the Fifth Amendment's equal protection guarantees); United
States v. Fisher, 22 F.3d 574, 579-80 (5th Cir.) (holding that stiffer penalties
for cocaine base transactions "are not grossly disproportionate to the severity
of the offense" and, therefore, do not violate Eighth Amendment), cert. denied,
___ U.S. ___, 115 S. Ct. 529, 130 L. Ed. 2d 433 (1994); United States v. Thomas,
932 F.2d 1085, 1090 (5th Cir. 1991) (holding that the statute and sentencing
guidelines applicable to crack cocaine "have a reasonable basis and are not vague
under commonly understood usages"), cert. denied, 502 U.S. 1038, 112 S. Ct. 887,
116 L. Ed. 2d 791 (1992); Fisher, 22 F.3d at 579 (rejecting vagueness challenge
to the guideline applicable to crack cocaine).
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1279, 117 L. Ed. 2d 505 (1992). Counts three and four linked the
§ 924(c) gun charge to the same underlying drug offense))possession
with intent to distribute cocaine base. Accordingly, we hold that
sentencing John Buchanan on both count three and count four
violated double jeopardy principles.11 The proper remedy is to
vacate John Buchanan's sentence on counts three and four and remand
for resentencing on whichever count the government chooses to
proceed with. Id. at 1263. We affirm John Buchanan's sentence in
all other respects.12
11
In its brief the government concedes that sentencing John Buchanan
on both counts three and four violated double jeopardy principles.
John Buchanan also argues that his sentences under counts five and
six were duplicitous of the firearm charge contained in counts three and four.
This argument lacks merit. Counts three and four, applying 18 U.S.C. § 924(c),
required only that the defendant use or carry a firearm during a drug-trafficking
offense. Count five, alleging violation of 18 U.S.C. § 922(o), required the
possession of an automatic weapon; and count six, applying 18 U.S.C. § 922(g)(1),
required that the defendant not only possess a firearm, but that he also be a
convicted felon. Thus counts five and six involve distinct elements not required
by counts three and four. Under the test set forth in Blockburger v. United
States, 284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 L. Ed. 2d 306 (1932) ("[T]he
test to be applied to determine whether there are two offenses or only one is
whether each provision requires proof of an additional fact which the other does
not."), John Buchanan's sentences under counts five and six do not violate double
jeopardy principles. We also reject John Buchanan's contention that the
imposition of a civil forfeiture penalty, the loss of a 1985 Mercedes and a 1988
Jaguar, constituted double jeopardy and violated the Eighth Amendment prohibition
against excessive fines. As we have previously held, the forfeiture of drug
proceeds does not constitute punishment, and thus neither the Eighth Amendment
prohibition against excessive fines nor double jeopardy analysis is applicable.
United States v. Tilley, 18 F.3d 295, 300 (5th Cir.), cert. denied, ___ U.S. ___,
115 S. Ct. 574, 130 L. Ed. 2d 490 (1994). Even if these automobiles were not
drug proceeds, so long as the amount forfeited was rationally related to the
governmental and societal losses associated with John Buchanan's criminal
activity, double jeopardy will not bar subsequent punishment. Department of
Revenue of Montana v. Kurth Ranch, ___ U.S. ___, ___, 114 S. Ct. 1937, 1945, ___
L. Ed. 2d ___ (1994); United States v. Halper, 490 U.S. 435, 448-49, 109 S. Ct.
1892, 1902, 104 L. Ed. 2d 487 (1989); Tilley, 18 F.3d at 299-300. In addition,
the Eighth Amendment only bars excessive fines. United States v. Austin, ___
U.S. ___, ___, 113 S. Ct. 2801, 2812, 125 L. Ed. 2d 488 (1993). We hold that the
forfeiture of these two automobiles, even when combined with the other
punishments in this case, did not constitute excessive punishment. Nor did the
forfeiture put John Buchanan in double jeopardy. The value of these automobiles
was rationally related to the governmental and societal losses associated with
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IV
A
Bonner argues that the district court erred in overruling his
FED. R. EVID. 404(b) objection and admitting evidence of his prior
cocaine delivery conviction. The district court admitted the
evidence as relevant to Bonner's "motive," "state of mind," or
"intent" because Bonner's defense was that he was an innocent
bystander. We review the district court's admission of prior
convictions over objection under a heightened abuse of discretion
standard. United States v. Wisenbaker, 14 F.3d 1022, 1028 (5th
Cir. 1994); United States v. Carrillo, 981 F.2d 772, 774 (5th Cir.
1993), cert. denied, ___ U.S. ___, 115 S. Ct. 261, 130 L. Ed. 2d
181 (1994). Extrinsic offense evidence is properly admitted under
Rule 404(b) only if: (1) it is relevant to an issue other than the
defendant's character, and (2) its probative value is not
substantially outweighed by its undue prejudice. United States v.
Ponce, 8 F.3d 989, 993 (5th Cir. 1993); United States v. Beechum,
582 F.2d 898, 911 (5th Cir. 1978) (en banc), cert. denied, 440 U.S.
920, 99 S. Ct. 1244, 59 L. Ed. 2d 472 (1979).
Evidence is relevant "if it makes the existence of any fact at
issue more or less probable than it would be without the evidence."
United States v. Williams, 900 F.2d 823, 826 (5th Cir. 1990). As
we stated in Beechum, "[i]t is derogative of the search for truth
the Buchanans' crack cocaine operation. After careful review of the record, we
find the remainder of John Buchanan's claims to be without merit.
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to allow a defendant to tell his story of innocence without facing
him with evidence impeaching that story." 582 F.2d at 909.
Evidence that Bonner was previously convicted of a cocaine delivery
offense tends to refute his story that he was merely "in the wrong
place at the wrong time," and makes it more probable that he had
the requisite "state of mind" or "intent" to participate in the
present cocaine-related offenses.13 See United States v. Cheramie,
51 F.3d 538, 541-42 (5th Cir. 1995) (holding evidence of prior drug
sales admissible under 404(b) to show "knowledge" and "intent"
where defendant claimed he did not know that the gym bag he took
possession of contained two kilograms of cocaine). Accordingly, we
hold that the district court did not abuse its discretion in
finding Bonner's prior drug offense relevant to the case at hand.
After finding Bonner's prior conviction relevant, the district
court weighed the conviction's probative value against its possible
prejudicial effects. The probative value of extrinsic offense
evidence "must be determined with regard to the extent to which the
defendant's unlawful intent is established by other evidence,
stipulation, or inference." Beechum, 582 F.2d at 914; Williams,
900 F.2d at 827; see also United States v. Henthorn, 815 F.2d 304,
Bonner argues that we should evaluate the relevance of the prior
conviction as to each distinct count of the indictment. We decline to do so.
Bonner offered the same defense to all counts of the indictment: that he was an
innocent bystander. The prior conviction is relevant to show that Bonner did not
innocently accompany his co-defendants, and this extends to all counts for which
Bonner was charged as a member of the conspiracy (possession of crack cocaine
with intent to distribute, conspiracy to possess with intent to distribute, and
aiding and abetting in using or carrying a firearm during a drug-trafficking
offense).
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308 (5th Cir. 1987) (indicating that the probity analysis "hinges
upon the government's need for the testimony"). Because the
prosecution's other admitted evidence shed little light on Bonner's
"state of mind" or "intent,"14 the probative value of the extrinsic
offense evidence was greater. See Williams, 900 F.2d at 827
(noting that "limited evidence the government could . . . adduce on
the issues of knowledge and intent increases the incremental
probity of the extrinsic evidence"); see also Beechum, 582 F.2d at
914-15 (discussing incremental probity of extrinsic evidence in
relation to other admissible evidence). Bonner's entry of a not
guilty plea and his attack on McDay's credibility also enhances the
probity of the prior offense evidence by placing his intent and
state of mind at issue.15 See Henthorn, 815 F.2d at 308 (finding
probative value of extrinsic offense evidence outweighed possible
prejudice where defendant pleaded not guilty and attacked the
credibility of witnesses). Although the danger of prejudice
associated with prior conviction evidence is often great, the
district court in this case substantially reduced the possibility
of prejudice to Bonner by carefully instructing the jury on how
they could consider the evidence. See id. at 304 (finding that
Without the admission of the prior drug conviction, the government's
evidence as to Bonner's state of mind would have been limited to McDay's
testimony concerning Bonner's use of a gun in sweeping his apartment, the
officers' observations at the night club, Bonner's presence in the car, and
Bonner's thumbprint on one of the gun magazines.
We have previously held that in conspiracy cases "the mere entry of
a not guilty plea sufficiently raises the issue of intent to justify the
admissibility of extrinsic offense evidence." United States v. Prati, 861 F.2d
82, 86 (5th Cir. 1988).
-21-
careful jury instructions minimized possibility of prejudice); see
also United States v. Gordon, 780 F.2d 1165, 1174 (5th Cir. 1986)
(holding improper admission of extrinsic evidence may be cured by
adequate limiting instruction). Based upon the foregoing
considerations, we hold that the district court did not abuse its
discretion in finding that the probative value of Bonner's prior
drug conviction outweighed the danger of undue prejudice.
Accordingly, we hold that the district court did not err in
admitting the evidence of Bonner's prior drug conviction.
B
Bonner next argues that the district court erred in admitting
the opinion testimony of two APD officers.16 We review the district
court's evidentiary rulings for abuse of discretion. United States
v. Speer, 30 F.3d 605, 609 (5th Cir. 1994), cert. denied, ___ U.S.
___, 115 S. Ct. 768, 130 L. Ed. 2d 664 (1995). The admission of
the officers' opinion testimony is appropriately examined under the
standard governing testimony of expert witnesses.17 Expert
When asked about the significance of observing Bonner and Crane in
the car outside the nightclub, one officer testified that "[i]t appeared that
those two people were protecting something in that car." The second officer
stated his opinion that it would be unreasonable for persons trafficking crack
cocaine worth $30,000 to have an uninvolved "outsider" in the car. Bonner timely
objected to these answers as improper opinion testimony, but in both instances
the district court overruled the objections.
Bonner contends that the government did not qualify or proffer the
police officers as expert witnesses, and that their testimony must, therefore,
be reviewed as opinion testimony of lay witnesses. We disagree. "If scientific,
technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training or education, may testify
thereto in the form of an opinion or otherwise." FED. R. EVID. 702 (emphasis
added). The record reflects that the prosecution qualified the officers as
experts during direct examination by questioning them and eliciting responses as
-22-
witnesses are permitted to express opinions or inferences that
"will assist the trier of fact to understand the evidence or to
determine a fact in issue." FED. R. EVID. 702. In situations such
as the present case, "The rule is well-established that an
experienced narcotics agent may testify about the significance of
certain conduct or methods of operation unique to the drug
distribution business, as such testimony is often helpful in
assisting the trier of fact understand the evidence." United
States v. Washington, 44 F.3d 1271, 1283 (5th Cir.), cert. denied,
___ U.S. ___, 115 S. Ct. 2011, 131 L. Ed. 2d 1010 (1995); see
United States v. Fleishman, 684 F.2d 1329, 1335-36 (9th Cir.)
(finding no error in admission of agent's testimony that defendant
acted as a "lookout" for drug transaction), cert. denied, 459 U.S.
1044, 103 S. Ct. 464, 74 L. Ed. 2d 614 (1982).
The record reflects that both testifying officers were
experienced in investigating narcotics trafficking and drug-related
crimes.18 Because of their experiences, the officers were familiar
with certain conduct and methods of operation unique to the drug
distribution business, including the methods used by drug dealers
to protect their illegal investments. The first officer testified
that, in his opinion, Bonner's and Crane's actions indicated that
to their experience and qualifications.
The first officer, a 15-year veteran of the APD, was assigned to the
repeat offender program and testified as to his "experience and training" in
investigating drug-trafficking crimes. The second officer, a 12-year veteran,
had served as a narcotics investigator for six and one-half years prior to his
testimony.
-23-
they were guarding the car. This type of testimony is permissible
because it is based on specialized knowledge, and is admitted to
aid the jury in understanding a fact in issue))whether Bonner's
presence with the drugs was innocent or not. The second officer
testified that, based on his experience, a person transporting
$30,000 worth of crack cocaine and multiple firearms would not
allow a complete outsider to ride in the car. This testimony was
also permissible opinion testimony, based on the officer's
specialized knowledge.19 It aids the jury in understanding the
significance of Bonner's presence in a car laden with narcotics and
weapons.20 FED. R. EVID. 702; Washington, 44 F.3d at 1283.
Accordingly, we hold that the district court did not abuse its
We also reject Bonner's argument that this testimony was
impermissible "profile evidence." In this case, the government did not seek to
prove guilt by showing how a defendant fit a list of characteristics making up
the "profile" of a drug courier. See United States v. Williams, 957 F.2d 1238,
1241 (5th Cir. 1992) (holding testimony impermissible where officer "described
the profile itself and then proceeded to list the characteristics of the profile
that [the defendant] displayed"). Rather, in this case the government offered
the officer's testimony to indicate that Bonner's actions were inconsistent with
his claim that he was an innocent bystander. See Washington, 44 F.3d at 1283 &
n.44 (holding "five 'expert' opinions by two government agents and the
[confidential informant] regarding the operations and methods of drug
trafficking" not impermissible profile evidence "because it was not offered for
that purpose").
Bonner also contends that the officers' opinions amounted to
testimony as to his guilt. Since the determination of guilt is solely within the
province of the trier of fact, an expert witness cannot give an opinion as to a
criminal defendant's mental state or condition. FED. R. EVID. 704(b). However,
opinion testimony is permitted in regard to other ultimate issues. FED. R. EVID.
704(a). Rule 704(a) provides that "[t]estimony in the form of an opinion or
inference otherwise admissible is not objectionable because it embraces an
ultimate issue to be decided by the trier of fact." Id. We have previously
recognized the difference between an impermissible opinion on an ultimate legal
issue and "a mere explanation of the expert's analysis of facts which would tend
to support a jury finding on the ultimate issue." United States v. Speer, 30
F.3d 605, 610 (5th Cir. 1994). We hold that the opinion testimony in question
falls into the latter category, and was merely an analysis of the evidence in
light of the officers' specialized knowledge of drug trafficking.
-24-
discretion in admitting the officers' opinion testimony into
evidence.21
V
Anderson argues that the district court misapplied the
Sentencing Guidelines in calculating his base offense level.
Anderson maintains that the district court erred in attributing to
him the drugs seized from the Buchanan residence in Houston.22 A
district court's findings about the quantity of drugs upon which a
sentence should be based are factual findings, which we review for
clear error. United States v. Palamo, 998 F.2d 253, 258 (5th
Cir.), cert. denied, ___ U.S. ___, 114 S. Ct. 358, 126 L. Ed. 2d
322 (1993); United States v. Ponce, 917 F.2d 841, 842 (5th Cir.
1990), cert. denied, 499 U.S. 940, 111 S. Ct. 1398, 113 L. Ed. 2d
453 (1991). The Sentencing Guidelines allow a district court "to
hold a defendant accountable for all relevant conduct." United
States v. Maseratti, 1 F.3d 330, 340 (5th Cir. 1993), cert. denied,
___ U.S. ___, 114 S. Ct. 1096, 127 L. Ed. 2d 409 (1994). Under the
Bonner further argues that the cumulative effect of the district
court's evidentiary errors amounted to reversible error. Finding no evidentiary
errors, we reject this contention.
In response to Anderson's objection to having the Houston drugs
included in his sentence, the probation officer stated that Anderson's
involvement in the conspiracy was extensive enough that the substances seized in
Houston were attributable to him. The district court agreed, stating that:
There's no question in my mind that the jury was correct in
convicting Mr. Anderson of the conspiracy. The presentence
investigation shows Mr. Anderson's relation to the Buchanans going
back to 1987. There's no question that any of the narcotics found
in that room or house in Houston were part of the conspiracy that
had been going on for a long period of time and Mr. Anderson was
part of it.
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Sentencing Guidelines, a co-conspirator is liable for "all
reasonably foreseeable acts and omissions of others in furtherance
of the jointly undertaken criminal activity." U.S.S.G.
§ 1B1.3(a)(1)(B). A conviction for conspiracy, however, "does not
automatically mean that every conspirator has foreseen the total
quantity of drugs involved in the entire conspiracy." United
States v. Smith, 13 F.3d 860, 867 (5th Cir.), cert. denied, ___
U.S. ___, 114 S. Ct. 2151, 128 L. Ed. 2d 877 (1994). We have
previously held that attributing the acts of others to a co-
conspirator in sentencing requires (1) that the acts be reasonably
foreseeable, and (2) that they be within the scope of the jointly
undertaken criminal activity. See Smith, 13 F.3d at 866 (reversing
defendant's sentence because district court erred in attributing
drugs to defendant where defendant had not jointly undertaken the
criminal activity involving those particular drugs); Maseratti, 1
F.3d at 340 (remanding for determination of each defendant's role
in the conspiracy in order to determine the amount of drugs
attributable to each).
In this case, there was evidence that Anderson had been
involved with the Buchanans since 1987. Testimony indicated that
Anderson always accompanied John Buchanan on his trips to deliver
drugs in Austin, serving as John Buchanan's bodyguard and "right-
hand man." Officers testified that they had observed Anderson's
maroon Cadillac parked in the Buchanans' driveway in Houston, and
it was Anderson's car, driven by Anderson from Houston, that was
-26-
used to transport the 280 grams of crack cocaine recovered in
Austin. Judging from the record, we cannot say the district court
erred in attributing the drugs seized from the Buchanan residence
in Houston to Anderson.23 Anderson's involvement in this conspiracy
seems to have been co-extensive with the Buchanans. Having often
transported drugs from the Buchanan residence to Austin, it was not
only foreseeable that the Buchanans would have a significant amount
of drugs in their Houston home, but the presence of those drugs
fits squarely within the pattern of drug distribution evinced by
the actions of the conspirators in this case. See U.S.S.G.
§ 1B1.3, comment. (n.2(ii)) ("In determining the scope of the
criminal activity that the particular defendant agreed to jointly
undertake . . . the court may consider any explicit agreement or
implicit agreement fairly inferred from the conduct of the
defendant and others."). Accordingly, we affirm the district
court's decision to attribute the cocaine seized in Houston to
Anderson in calculating his base offense level, and uphold his
sentence.24
Anderson argues that further evidence of his lack of involvement with
the drugs seized in Houston is the significant difference in chemical purity of
those drugs as compared to the crack seized in Austin (80-85% pure in Austin, 62-
70% pure in Houston). The divergence in purity between different quantities of
drugs, however, will not negate a finding that the drugs are attributable to a
co-conspirator if the test set forth in the guidelines is met. See Smith, 13
F.3d at 864-65 (upholding district court's decision to attribute quantity of
drugs to a co-conspirator despite differences in the drugs' "color and purity"
because the drugs were reasonably foreseeable and within the scope of the
conspirators' agreement).
We also reject Anderson's contention that the district court erred
in admitting his prior drug possession convictions as evidence of intent or state
of mind. See supra Part IV(A). Anderson put his state of mind and intent into
issue by pleading not guilty and claiming that he had not intended to possess the
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VI
For the foregoing reasons, we AFFIRM the convictions of all
co-defendants. We AFFIRM the sentences of Diana Buchanan, Vernon
Bonner, and Fedell Anderson. We VACATE John Buchanan's sentence on
counts three and four and REMAND for resentencing on whichever
count the United States chooses to proceed with. We AFFIRM John
Buchanan's sentence in all other respects.
crack cocaine or participate in the conspiracy. The prior drug possession
convictions, however, make it more likely that Anderson had knowledge of and
intended to participate in the crimes committed by this group. See United States
v. Willis, 6 F.3d 257, 262 (5th Cir. 1993) (holding prior drug convictions
relevant to show that defendant had knowledge and intent necessary to possess
drugs at issue in case); United States v. Gadison, 8 F.3d 186, 192 (5th Cir.
1993) ("A prior conviction for possession of cocaine is probative of a
defendant's intent when the charge is conspiracy to distribute."). We also
reject Anderson's contention that because his prior conviction was six years old,
it was too remote in time to have sufficient probative value to outweigh its
prejudicial effect. See United States v. Rubio-Gonzales, 674 F.2d 1067, 1075
(5th Cir. 1982) (allowing ten-year-old conviction to be admitted as relevant to
knowledge). The district court carefully considered the possible prejudice of
admitting the prior crimes evidence and determined that it did not substantially
outweigh the evidence's probative value. The district court further mitigated
any undue prejudice by carefully instructing the jury on how it could consider
this evidence. For these reasons we cannot say that admitting these convictions
for the limited purpose of showing Anderson's state of mind or intent constituted
an abuse of discretion.
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