United States v. Melvin Coleman, Jr. , 610 F. App'x 347 ( 2015 )


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  •      Case: 14-40406      Document: 00513043021         Page: 1    Date Filed: 05/14/2015
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 14-40406                       United States Court of Appeals
    Fifth Circuit
    FILED
    UNITED STATES OF AMERICA,                                                   May 14, 2015
    Lyle W. Cayce
    Plaintiff - Appellee                                              Clerk
    v.
    MELVIN EUGENE COLEMAN, JR.; LENNOARD RAY HARE, also known
    as Leo, also known as Griz,
    Defendants - Appellants
    Appeals from the United States District Court
    for the Eastern District of Texas
    USDC No. 4:12-CR-97
    Before REAVLEY, SMITH and GRAVES, Circuit Judges.
    PER CURIAM:*
    Lennoard Hare and Melvin Coleman were found guilty by a jury of
    conspiracy to distribute or possess with the intent to distribute marijuana
    and/or cocaine. Both challenge their convictions and Hare challenges his life
    sentence. 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 14-40406    Document: 00513043021     Page: 2   Date Filed: 05/14/2015
    No. 14-40406
    I. Factual and Procedural Background
    A.    Pre-Trial Proceedings
    In June 2012, a grand jury returned the first-superseding one-count
    indictment against Lennoard Ray Hare, Natasha Williams, Kimberly Brown,
    Melvin Coleman, LaTonya Wadlington and LaSonya Hall, charging them with
    conspiracy to distribute or possess with the intent to distribute 5 kilograms or
    more of cocaine, 1,000 kilograms or more of marijuana, and less than 28 grams
    of cocaine base (crack cocaine). 21 U.S.C. §§ 841, 846. All the co-defendants
    except Hare and Coleman pleaded guilty.
    Before trial, Coleman filed a motion in limine asking the court to exclude
    statements he made during a May 2011 traffic stop because of Miranda
    violations. This motion effectively served as an untimely motion to suppress.
    The district court noted that it was untimely as a motion to suppress but held
    a hearing. During the hearing, Greenville Police Department Officer Chris
    Rosamond testified that he stopped Coleman’s vehicle for following too closely
    and failing to signal a lane change. Rosamond had also received information
    from DPS officers that they suspected that Coleman might be involved in a
    narcotics violation. At the beginning of the stop, Rosamond asked where
    Coleman was traveling from, and Coleman said that he was coming from
    Tennessee after visiting with family. The car was rented in the name of a
    woman not present, and Coleman was unable to produce a rental agreement.
    Rosamond learned that Coleman had a pending arrest warrant for unpaid
    child support and began waiting for confirmation that it was still outstanding.
    Based on the lack of a rental agreement and what he described as Coleman’s
    evasive answers, Rosamond asked for consent to search the vehicle, which
    Coleman gave. Rosamond asked Coleman if he had any narcotics, weapons, or
    large sums of money in the car and patted Coleman down, all of which he
    normally did in similar situations. Coleman responded that he always carried
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    money with him. Rosamond asked Coleman how much money he had in the
    car, and Coleman replied that he had $80,000. 1 During the search, Rosamond
    found approximately $186,000 in cash in the vehicle. Coleman was eventually
    arrested on the outstanding warrant.
    The district court denied the motion in limine/motion to suppress the
    statements made during the stop, concluding that Coleman was never
    subjected to custodial interrogation and Miranda warnings were not required.
    B.     Trial Evidence
    Trial evidence showed that in 2010, Nika Keith became the target of a
    drug investigation by the Texas Department of Public Safety, which eventually
    led officers to an associate of Keith’s, Defendant-Appellant Hare.                     Keith
    pleaded guilty and began to cooperate with DPS, including making recorded
    phone calls to Hare during which they discussed drug trafficking. DPS officers
    began conducting surveillance on Hare. A January or February 2011 search of
    a warehouse that Hare frequented resulted in the seizure of large scales,
    plastic wrap, remainders of large amounts of marijuana, and a hat that bore
    the name “Grizzly Corporation,” a company that belonged to Hare. Officers
    also observed Hare frequenting co-defendant Natasha Williams’s house in the
    Cedar Valley area of Dallas. An April 2011 search of that house resulted in
    the seizure of seven pounds of marijuana, eight empty kilogram wrappers,
    wrapping material for drugs and money, 13.58 grams of crack cocaine, and
    $20,700 in cash.
    In May 2011, pursuant to a court order, Hare’s phone was tracked via
    GPS to Kentucky and back to Dallas. On May 13, 2011, the phone was again
    1  There was some discrepancy between Rosamond’s testimony during the hearing on
    the motion and his trial testimony regarding whether Coleman “volunteered” that he had
    $80,000 or whether he was responding to Rosamond when he made that statement. The
    video of the traffic stop clearly shows that Coleman was responding to specific questions from
    Rosamond.
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    tracked traveling between Dallas and Kentucky.           DPS agents set up
    surveillance on Hare’s route back to Dallas. Two vehicles were observed. One
    was a black Lexus belonging to co-defendant Kimberly Brown, which Brown
    was driving with Hare as a passenger. The other was a 2011 white Ford
    Explorer driven by Defendant-Appellant Coleman. Agents observed the two
    vehicles traveling together, including getting on and off of the highway
    together, and receipts indicated they purchased gas together. Both vehicles
    were stopped by local law enforcement officers in Texas for traffic violations.
    During the stops, officers found approximately $111,000 in Brown’s car and
    $186,000 in Coleman’s Explorer.
    Following these traffic stops, DPS officers executed a search warrant for
    Brown’s residence in Duncanville, Texas. They found food saver bags and food
    saver machines that seal up the bags, which are materials commonly used for
    packaging narcotics. An arrest warrant for Hare and a search warrant for his
    residence in Midlothian, Texas, were executed by officers in January 2012.
    During that search, officers found approximately $21,000 in coins in a fountain
    in front of Hare’s house, a money counter box, and a .44 magnum pistol.
    Keith, Williams, Brown, and co-defendant LaSonya Hall each testified
    at trial. Nika Keith testified that Hare sold him about 50 pounds of marijuana
    per week from 2004 through Keith’s arrest in 2010, for a total of approximately
    4,000 pounds of marijuana. Keith further testified that Hare sold him between
    20 and 50 kilograms of cocaine from 2007 through 2010.       Keith also stated
    that he saw bags of drugs in a Glenn Heights house that belonged to Hare’s
    girlfriend, “Tasha, Natasha, something like that.”
    Natasha Williams testified that Hare was her boyfriend and that he used
    her two houses to store substantial amounts of cocaine, marijuana, and money.
    She testified that Keith came to her house in Glenn Heights to buy marijuana
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    from Hare. Williams testified that the marijuana, kilogram wrappers, and
    money found in the April 13, 2011, search of her house belonged to Hare.
    Kimberly Brown testified that she, Hare, and Coleman took two trips to
    Louisville, Kentucky, selling 10 kilograms of cocaine each time. On each trip,
    Coleman transported the cocaine in a separate vehicle. On both trips, Brown,
    Hare, and Coleman stayed at the Galt House Hotel in two different rooms.
    Records from the Galt House Hotel confirmed that Coleman was registered on
    April 21, 2011, for one night and that both Coleman and Brown were registered
    to stay at the hotel from May 11 through May 13, 2011. Brown testified that
    Coleman kept the cocaine in his room, brought it to Hare and Brown’s room to
    sell, took the money from the sales back to his room, and drove back to Texas
    with all or most of the money. Phone records obtained and analyzed by the
    DEA showed 104 calls between Hare’s phone and Coleman’s phone between
    May 11 and May 13, 2011. Brown testified that she and Hare subsequently
    made a third trip to Kentucky to sell 300-400 pounds of marijuana, and a
    fourth trip to sell 10 kilograms of cocaine.
    LaSonya Hall testified that she transported marijuana from Dallas to
    Oklahoma for Hare multiple times. Hall testified that she would also transport
    the money for the marijuana from Oklahoma to Hare in Dallas. On one of
    those occasions, she was stopped by law enforcement with eight pounds of
    marijuana. In her plea agreement, she accepted responsibility for transporting
    a total of 250 pounds of marijuana for Hare.
    Hare and Coleman were both convicted after a joint jury trial. The jury
    found Hare guilty of conspiracy to distribute or possess with intent to
    distribute 1,000 kilograms of marijuana and 5 kilograms of cocaine. The jury
    found Coleman guilty of conspiracy to distribute or possess with intent to
    distribute 5 kilograms of cocaine.
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    Coleman filed a written motion for new trial, based on the admission of
    the statements he made during the traffic stop. The district court found that
    Coleman had waived his arguments for suppression by not raising them before
    trial, and that the motion should be denied on the merits for the same reasons
    it denied the untimely motion to suppress.
    Hare was sentenced to life imprisonment and five years of supervised
    release. Coleman was sentenced to a mandatory minimum 120 months of
    imprisonment and five years of supervised release. Both Hare and Coleman
    appeal their convictions, and Hare appeals his sentence.
    II. Discussion
    Coleman and Hare each raise three issues on appeal. Coleman argues
    that the district court should have suppressed statements he made during the
    May 13, 2011, traffic stop, and that the court abused its discretion by denying
    his motion for new trial based on the admission of those statements. Both Hare
    and Coleman claim that the evidence presented at trial was insufficient to
    support their convictions. Hare also argues that the district court abused its
    discretion in calculating the drug weight attributable to him at sentencing, and
    that that his life sentence constitutes a violation of the Eighth Amendment.
    We address each issue in turn.
    A.    Motion to Suppress and Motion for New Trial (Coleman)
    Coleman argues that statements he made during the May 13, 2011
    traffic stop should have been suppressed because they were made without
    Miranda warnings. He raises this issue both as a challenge to the denial of his
    motion in limine, which was effectively an untimely motion to suppress, and
    as a challenge to the denial of his motion for a new trial. Coleman asserts that
    two statements should be suppressed: the statement he made to Rosamond
    that he was returning from Tennessee and the statement that he had $80,000
    in the car. Rosamond testified about the statements, and the prosecution
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    referenced both statements at trial to argue that Coleman was untruthful with
    Rosamond because he was trying to cover up his drug trafficking.
    Coleman suggests that, in considering the denial of his motion in limine,
    we should review factual findings for clear error and legal conclusions de novo,
    because the district court actually reached the merits of the motion. See United
    States v. Gomez, 
    623 F.3d 265
    , 268 (5th Cir. 2010); United States v. Marx, 
    635 F.2d 436
    , 441 (5th Cir. Unit B Jan. 1981). The government argues that plain
    error review is appropriate, because Coleman forfeited the error by failing to
    raise it by the pre-trial deadline for a motion to suppress. 2 The district court’s
    denial of a motion for new trial is reviewed for an abuse of discretion. United
    States v. Villareal, 
    324 F.3d 319
    , 325 (5th Cir. 2003).
    We need not resolve the standard of review applicable to the denial of
    Coleman’s untimely motion to suppress. Even reviewing the facts for clear
    error and the law de novo, the district court committed no error.
    “Miranda      warnings      must     be   administered      prior   to   ‘custodial
    interrogation.’” United States v. Bengivenga, 
    845 F.2d 593
    , 595 (5th Cir. 1988)
    (en banc) (quoting Miranda v. Arizona, 
    384 U.S. 436
    , 479 (1966)). “A suspect
    is . . . ‘in custody’ for Miranda purposes when placed under formal arrest or
    when a reasonable person in the suspect’s position would have understood the
    situation to constitute a restraint on freedom of movement of the degree which
    the law associates with formal arrest.” 
    Id. at 596.
    “Two discrete [inquiries] are
    essential to the determination: first, what were the circumstances surrounding
    the interrogation; and second, given those circumstances, would a reasonable
    person have felt he or she was at liberty to terminate the interrogation and
    2 Federal Rule of Criminal Procedure 12 has been amended to no longer provide that
    failure to file a motion to suppress by the pre-trial deadline results in waiver, instead
    providing that a court may consider an untimely motion “if the party shows good cause.” Fed.
    R. Crim. P. 12(c).
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    leave.” United States v. Cavazos, 
    668 F.3d 190
    , 193 (5th Cir. 2012) (quoting
    J.D.B. v. N. Carolina, 
    131 S. Ct. 2394
    , 2402 (2011)).        A determination of
    whether a defendant is “in custody” for Miranda purposes depends on the
    “totality of circumstances.” 
    Id. Some important
    factors include: (1) the length
    of the questioning; (2) the location of the questioning; (3) the accusatory, or
    non-accusatory, nature of the questioning; (4) the amount of restraint on the
    individual’s physical movement; and (5) statements made by officers regarding
    the individual’s freedom to move or leave. United States v. Wright, 
    777 F.3d 769
    , 775 (5th Cir. 2015). Custody for Miranda purposes requires a greater
    restraint on freedom than seizure under the Fourth Amendment. 
    Bengivenga, 845 F.2d at 598
    . It is well-established that ordinary traffic stops do not place
    a person “in custody” for purposes of Miranda. Berkemer v. McCarty, 
    468 U.S. 420
    , 437-39 (1984) (finding brevity, spontaneity, and public nature of normal
    traffic stop, and small number of officers involved, renders stop non-custodial).
    We conclude that Coleman was not “in custody” for purposes of Miranda
    when he made any of the challenged statements. Up to the time he was
    actually arrested on the unrelated warrant at the end of the stop, the
    surrounding circumstances and degree of restraint never meaningfully
    advanced beyond what is typical during an ordinary traffic stop. See 
    id. The stop
    was conducted on the side of a public roadway, where a traffic stop is
    normally conducted; Rosamond never engaged Coleman in specific, lengthy or
    accusatory questioning about any suspected offense; and Coleman was either
    sitting in his car or standing outside it, unrestrained, during the entire stop.
    See id.; 
    Wright, 777 F.3d at 775
    (discussing these as factors to be considered).
    While the 30-minute stop was arguably somewhat longer than a typical traffic
    stop, the length was extended primarily because reasonable suspicion had
    arisen regarding a different offense—Rosamond was waiting for confirmation
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    on the unrelated warrant—and because Coleman consented to a search, not
    because of any extended questioning.
    Because the stop was non-custodial, Miranda warnings were not
    required.   The district court did not err when it denied the motion in
    limine/motion to suppress or the motion for a new trial.
    B.    Sufficiency of the Evidence (Hare and Coleman)
    Coleman and Hare preserved these objections by moving for acquittal;
    we thus review the sufficiency of the evidence de novo. United States v. Grant,
    
    683 F.3d 639
    , 642 (5th Cir. 2012). We view all evidence in the light most
    favorable to the jury’s verdict and “determine whether a rational trier of fact
    could have found the essential elements of the crime beyond a reasonable
    doubt.” 
    Id. (quotation omitted).
          To support a drug conspiracy conviction, the government must establish
    “(1) the existence of an agreement between two or more persons to violate
    narcotics law; (2) the defendant’s knowledge of the agreement; and (3) the
    defendant’s voluntary participation in the agreement.” United States v.
    Gonzalez, 
    76 F.3d 1339
    , 1346 (5th Cir. 1996). “A jury may infer the elements
    of a conspiracy conviction from circumstantial evidence: An agreement to
    violate narcotics laws may be inferred from concert of action. Knowledge of the
    conspiracy may be inferred from a collection of circumstances.” United States
    v. Leal, 
    74 F.3d 600
    , 606 (5th Cir. 1996) (quotations and citations omitted).
    Even uncorroborated accomplice testimony may be sufficient to support a
    conviction, if it is not “incredible or otherwise unsubstantial on its face.”
    United States v. Morales, 
    477 F.2d 1309
    , 1312 (5th Cir. 1973) (quoting Tillery
    v. United States, 
    411 F.2d 644
    , 647 (5th Cir. 1969)).
    1.    Coleman
    Coleman challenges the credibility of the testimony of co-defendant
    Kimberly Brown. Brown’s testimony was the primary evidence tying Coleman
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    to the conspiracy. The other co-defendants testified that they did not know
    Coleman. However, Brown testified that she, Hare, and Coleman took two
    trips to Louisville, Kentucky, selling 10 kilograms of cocaine each time. She
    testified about how the three transported the cocaine and the money, that they
    all stayed at the Galt House Hotel, how they conducted drug transactions in
    the hotel, and how they transported the money back to Dallas. Additional
    evidence corroborated Brown’s testimony. Records from the hotel confirmed
    Coleman was registered for a night in April 2011, and that both Coleman and
    Brown were registered May 11 through May 13, 2011. Telephone records
    showed 104 calls between Hare’s phone and Coleman’s phone between May 11
    and May 13, 2011. Officers observed Brown’s car and Coleman’s car traveling
    together on the route back from Kentucky. Further, during the traffic stops,
    officers found $111,000 cash in Brown’s car and $186,000 in cash in Coleman’s
    car, which aligned with the testimony that 10 kilograms of cocaine sold for
    approximately $300,000.
    This evidence was sufficient for the jury to find that Coleman agreed to
    participate in a conspiracy to distribute at least 5 kilograms of cocaine. The
    jury was properly instructed about accomplice testimony, and the jury was
    informed that Brown had pleaded guilty and was cooperating with the hope of
    a reduced sentence. The jury found Brown’s testimony to be credible, and other
    evidence corroborated her testimony. There is no basis to overturn the jury’s
    verdict.
    2.    Hare
    Hare likewise challenges the sufficiency of the evidence by attacking the
    credibility of the co-defendants, arguing that they had every incentive to lie
    and attribute the drug trafficking to him. Four separate individuals testified
    that Hare sold substantial amounts of cocaine and marijuana, possessed
    substantial amounts of cocaine and marijuana, and directed their trafficking
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    of cocaine and marijuana, over multiple years and in multiple states. Keith
    testified that between 2004 and 2010, he bought 50 pounds a week of
    marijuana from Hare, for a total of 4,000 pounds, and from 2007 to 2010,
    bought between 20 and 50 kilograms of cocaine from Hare. Williams testified
    that the marijuana, cocaine, packaging materials, and money found in her
    house were Hare’s, and that Hare regularly used her houses to store large
    amounts of marijuana, cocaine and money. Brown testified that she and Hare
    traveled to Kentucky four times to sell marijuana and cocaine, totaling 400
    pounds of marijuana and 30 kilograms of cocaine. Hall testified that she
    transported marijuana from Dallas to Oklahoma at Hare’s direction multiple
    times, and that she transported a total of 250 pounds of marijuana for Hare.
    Other evidence corroborated the testimony of the witnesses and co-defendants,
    including surveillance and the money, packaging materials and weapons found
    during the various searches of the co-defendants’ houses and other locations
    involved in the conspiracy
    This evidence was sufficient for the jury to find that Hare agreed to
    participate in a conspiracy to distribute at least 1,000 kilograms of marijuana
    and 5 kilograms of cocaine. Again, the jury was properly instructed about
    accomplice testimony and was informed about the pleas of the co-defendants
    and that they were testifying with the hope of a reduced sentence. The jury
    found the testimony credible. There is no basis to overturn the jury’s verdict.
    C.    Drug Weight (Hare)
    Hare next argues that the district court erred in its determination of the
    drug weight attributable to him at sentencing.        The pre-sentence report
    (“PSR”) concluded that Hare was responsible for 5,022 kilograms of marijuana
    and 180 kilograms of cocaine (equivalent to 36,000 kilograms of marijuana
    pursuant to U.S.S.G. § 2D1.1 cmt. n. 8), for a total of the equivalent of 41,022
    kilograms of marijuana. Under the 2013 Sentencing Guidelines, this drug
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    weight resulted in a base offense level of 38. U.S.S.G. § 2D1.1(c)(1). After other
    enhancements and reductions not at issue on appeal, Hare’s final offense level
    was 42. Together with criminal history category II, Hare’s Guidelines range
    was 360 months to life. The district court sentenced him to life.
    A district court’s determination of the quantity of drugs for which a
    defendant is responsible is a factual finding reviewed for clear error. See
    United States v. Cooper, 
    274 F.3d 230
    , 238 (5th Cir. 2001). The drug weight
    includes the drugs for which the defendant is directly responsible and the
    drugs that can be attributed to him in a conspiracy. See U.S.S.G. § 1B1.3(a)(1).
    For conspiratorial conduct to be attributed to a defendant, the co-conspirator’s
    conduct must be “reasonably foreseeable” to the defendant and within the
    scope of the defendant’s agreement. United States v. Carreon, 
    11 F.3d 1225
    ,
    1230 (5th Cir. 1994). In determining drug weight to calculate the offense level
    under the Guidelines, the court may rely on statements and testimony from
    codefendants to calculate an amount higher than the jury’s verdict, provided
    the information bears the minimum indicia of reliability. See United States v.
    Cantu-Ramirez, 
    669 F.3d 619
    , 628-29 (5th Cir. 2012).
    On appeal, Hare argues that he should only be held responsible for 2,294
    kilograms of marijuana, based on the marijuana that was actually seized from
    Williams’ house and Hall’s vehicle, and converting the currency actually seized
    from the various searches to its cocaine equivalent.         This barely-briefed
    argument clearly fails under the standards described above. The district court
    held Hare accountable for the amount of cocaine and marijuana that was
    supported by statements and trial testimony from Keith, Williams, Brown, and
    Hall, whom it found to be credible, and the amounts of drugs and money found
    during searches and traffic stops of Hare and the other co-defendants. Other
    than again challenging the credibility of the co-defendants, Hare offers no
    argument undermining or rebutting any of the drug weights contained in the
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    PSR or testified to by the co-defendants at trial. Thus, we find no error in the
    district court’s drug weight calculation.
    D.     Eighth Amendment (Hare)
    Hare argues that his life sentence for drug trafficking is disproportionate
    and constitutes a violation of the Eighth Amendment. Because he raises this
    argument for the first time on appeal, we review for plain error. United States
    v. Helm, 
    502 F.3d 366
    , 367 (5th Cir. 2007).
    The    Eighth     Amendment        prohibits     sentences     that    are   grossly
    disproportionate to the crime. See United States v. Thomas, 
    627 F.3d 146
    , 160
    (5th Cir. 2010).      “On review, however, this court does not ‘substitute its
    judgment for that of the legislature nor of the sentencing court as to the
    appropriateness of a particular sentence; it should decide only if the sentence
    is within the constitutional limitations.’” 
    Id. (quoting United
    States v. Harris,
    
    566 F.3d 422
    , 436 (5th Cir. 2009).            To do so, we first make a threshold
    comparison of the gravity of the offense to the severity of the sentence. 
    Id. If this
    review convinces us that the sentence is “grossly disproportionate to the
    offense,” we then compare the defendant’s sentence to sentences for similar
    crimes in this and other jurisdictions. 
    Id. Our “review
    of Eighth Amendment
    challenges is narrow,” and “successful Eighth Amendment challenges to
    prison-term lengths will be rare.” 
    Id. Hare’s Eighth
    Amendment argument is conclusory, nonspecific and
    unpersuasive. 3 He merely states that the life sentence is disproportionate to
    3  We have noticed that the Eighth Amendment argument in Hare’s brief is copied and
    pasted essentially word-for-word from briefs by the attorney, J. Warren St. John, in
    numerous other cases before this court, with little to no change made to account for the
    specific case being briefed. In fact, Mr. St. John apparently forgot to substitute Hare’s own
    name into the argument copied from a brief for another defendant, as the final line of this
    section of his brief refers to “Appellant Forester.” Arguments that are not appropriately
    tailored to each individual client and the facts of each case not only do the client a grave
    disservice, but they also undermine the principle of judicial economy.
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    the seriousness of the offense, and that the sentence “makes no measurable
    contribution to acceptable goals of punishment.” He makes no comparison of
    his sentence to sentences for similar crimes in this or other jurisdictions. We
    will not consider an issue that is inadequately briefed. See, e.g., Dardar v.
    Lafourche Realty Co., 
    985 F.2d 824
    , 831 (5th Cir. 1993) (“Questions posed for
    appellate review but inadequately briefed are considered abandoned.”).
    Because Hare does not even attempt to make an argument according to the
    well-settled method of determining whether a sentence is unconstitutionally
    disproportionate, we deem this issue abandoned. See 
    id. III. Conclusion
          For the foregoing reasons, we AFFIRM Hare’s and Coleman’s convictions
    and sentences in all respects.
    14