United States v. Andre Harris ( 2014 )

Case: 12-31046 Document: 00512496417 Page: 1 Date Filed: 01/10/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 12-31046 January 10, 2014
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff–Appellee
v.
ANDRE HARRIS, also known as Pookie Harris; ARTHUR HARRIS, also
known as Raymine Harris, also known as Black Harris,
Defendants–Appellants
Appeals from the United States District Court
for the Eastern District of Louisiana
Before SMITH, PRADO, and ELROD, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
In 2012, a jury convicted Defendants–Appellants Arthur Harris
(“Arthur”) and Andre Harris (“Andre”) of (1) conspiracy to possess with intent
to distribute crack cocaine; (2) conspiracy to possess firearms in furtherance of
a drug-trafficking crime; (3) possession with intent to distribute crack cocaine;
and (4) possession of firearms in furtherance of the drug-trafficking crimes
listed above. 1 Arthur was also convicted of (1) possession of 5 grams or more
of crack cocaine with intent to distribute and (2) possession of a firearm in
1 Because both Defendants–Appellants share the same last name, we refer to Arthur
Harris and Andre Harris by their first names.
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furtherance of the drug-trafficking crime. Arthur was sentenced to 481
months’ imprisonment, and Andre was sentenced to 181 months’
imprisonment. On appeal, both allege a variety of errors were committed
during their trial and at sentencing. For the reasons that follow, we affirm
their convictions and sentences.
I. BACKGROUND
A. Factual Background
The charges and convictions in this case stem from three different
incidents—one in September 2008, one in June 2010, and one in February
2011—and a series of recorded phone conversations between Andre and
Arthur.
In September 2008, New Orleans police obtained consent to search a
home owned by the parent of one of Arthur’s friends, Casey Jones (“Jones”).
Arthur was at the home at the time the police executed the search. Police
focused their search on Jones’s bedroom, and inside they found several
different types of ammunition, a mirror covered in white powder residue, a
razor blade, and plastic baggies. The police also recovered several firearms
that were stored underneath the home. Arthur, Jones, and another friend of
theirs, Walter Conley, were arrested that night.
Almost two years later, in June 2010, New Orleans police officers arrived
at the home of Andre’s and Arthur’s mother to execute an arrest warrant for
their sister on an unrelated battery charge. When police arrived, they saw
contraband through a window and entered the house through the window.
While the police were securing the house, they discovered several pieces of
crack cocaine in a toilet. Police also confiscated “a wad of money” ($220) from
Arthur’s person. The only individuals in the home during this incident were
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Arthur and his younger brother, TH. 2 After police obtained a search warrant,
they also found several firearms in the home. Arthur was arrested and
indicted on two charges that were later included in the 2011 superseding
indictment, which led to the trial in this case.
While Arthur was in jail following the September 2008 and June 2010
incidents, he spoke on the phone many times with Andre. 3 Those jailhouse
phone calls were recorded, and agents used recordings of those calls in an
attempt to gain insight into Andre’s and Arthur’s activity outside the jail.
Finally, in February 2011, New Orleans police officers and members of a
U.S. Marshals task force went to Andre’s apartment to arrest TH for armed
carjacking. When police arrived, they knocked on the front door and identified
themselves. They continued knocking after seeing one of the individuals in the
house try to exit through a window. The front door opened, 4 and when police
entered, they found Andre, Arthur, and TH inside. The police saw ammunition
when they entered the apartment. After obtaining a search warrant, they
found several firearms, rounds of ammunition, a red sight (a small laser that
helps aim a gun), $2,473 in cash, binoculars, ski masks, a scale, and sixty small
plastic bags containing what was later identified as 11.2 grams of cocaine base.
Arthur, Andre, and TH were all arrested.
2Because he was a minor at the time these events took place, we refer to the younger
brother only by his initials.
3 At trial, an Alcohol, Tobacco and Firearm agent, Agent Suzanne Pecora, testified
that she had listened to “hundreds” of Arthur’s phone calls and “[n]ot hundreds, but a lot” of
Andre’s phone calls.
4At trial, the officers testified that someone in Andre’s apartment opened the door,
but they could not recall who opened the door.
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B. Procedural Background
On February 24, 2011, Andre and Arthur were both indicted on four
counts:
(1) conspiracy to possess with the intent to distribute an unspecified amount
of cocaine base in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), and § 846;
(2) conspiracy to possess firearms in furtherance of drug-trafficking crimes of
(a) conspiracy to possess cocaine base with intent to distribute and (b)
possession of cocaine base with intent to distribute in violation of 18 U.S.C.
§ 924(o);
(3) possession with intent to distribute an unspecified quantity of cocaine base
in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), and 18 U.S.C. § 2; and
(4) possession of four firearms in furtherance of drug-trafficking crimes of (a)
conspiracy to possess cocaine base with intent to distribute and (b)
possession of cocaine base with intent to distribute in violation of 18 U.S.C.
§ 924(c)(1)(A) and 18 U.S.C. § 2.
Arthur was also individually charged with possession with intent to distribute
5 grams or more of cocaine base and possession of two firearms in furtherance
of a drug-trafficking crime, both dating back to his arrest in June 2010.
Following a three-day trial, a jury found Arthur and Andre guilty of all
charges. After the preparation of a Presentence Investigation Report (“PSR”)
for both Andre and Arthur, the district court imposed sentences.
Arthur was sentenced to 481 months’ imprisonment. In determining the
quantity of drugs, the court, citing the comments to United States Sentencing
Guidelines Manual (“U.S.S.G.”) § 2D1.1, found that the amount seized did not
reflect the scale of the offense and determined the quantity involved was
greater than 28 grams, making his base level 26. The court also determined
that Arthur was subject to a two-level enhancement under U.S.S.G. § 3B1.1 for
being an organizer, leader, manager, or supervisor of his younger brother TH.
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Because TH was a minor at the time, this also added another two-level
enhancement under U.S.S.G. § 2D1.1(14)(B), leaving Arthur’s base level at 30.
Given his category III criminal history, his guidelines range was 121–151
months. Arthur was also subject to a thirty-year minimum sentence: not less
than five years for possession of a firearm in furtherance of a drug-trafficking
crime and not less than twenty-five years for a second conviction on that
charge. After considering the 18 U.S.C. § 3553(a) factors, the court imposed a
481-month sentence on Arthur.
Andre was sentenced to 181 months. The court used the same drug
quantity and the same enhancement for supervising TH, which left a base level
of 30 and a range of 97–121 months based on his lack of criminal history.
Andre was also subject to a minimum five-year sentence for his conviction for
possession of a firearm in furtherance of a drug-trafficking crime. After
considering the 3553(a) factors, the court imposed a 181-month sentence: the
minimum 60 months and an additional 121 months based on the applicable
range. Both Arthur and Andre timely appealed.
II. JURISDICTION
This is an appeal of a final judgment and for review of a sentence, and so
this Court has jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
III. DISCUSSION
Arthur and Andre allege that a variety of errors were committed during
their trial and at sentencing. Arthur raises the following issues on appeal: (1)
there was insufficient evidence to support his conviction for the conspiracy
charges, the firearm possession charge, and the drug possession charge, all
based on the February 2011 incident; (2) the district court erred in the jury
instruction for the charge under 18 U.S.C. § 924(c), possession of a firearm in
furtherance of a drug-trafficking crime; (3) the district court erred when it
failed to instruct the jury that it could not consider Arthur’s juvenile conduct
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in determining guilt; (4) the district court miscalculated Arthur’s guidelines
range by improperly calculating the amount of crack cocaine and by enhancing
his sentence for supervising his younger brother TH; (5) his 40-year sentence
was substantively unreasonable; and (6) the district court erred in allowing
Agent Pecora’s extensive interpretation of the phone calls between Andre and
Arthur.
Andre raises the following issues on appeal: (1) there was insufficient
evidence to support his conviction for the conspiracy charges stemming from
the February 2011 incident; (2) the evidence was insufficient to support his
convictions for possession of drugs and firearms; (3) the district court erred in
the jury instruction for the charge under 18 U.S.C. § 924(c), possession of a
firearm in furtherance of a drug-trafficking crime; (4) his 181-month sentence
was substantively unreasonable; (5) the district court erred in allowing Agent
Pecora’s extensive interpretation of the phone calls between Andre and Arthur;
and (6) law enforcement officers violated his Fourth Amendment rights by
entering his home without a search warrant. We address each of these
concerns below.
A. Sufficiency of the Evidence
1. Standard of Review
Both Arthur and Andre properly preserved this issue by moving for
acquittal at the close of the Government’s case and at the close of all of the
evidence. See United States v. Shum, 496 F.3d 390, 391 (5th Cir. 2007) (citation
omitted). This Court reviews the sufficiency of the evidence de novo. Id. “In
deciding whether the evidence was sufficient, we review all evidence in the
light most favorable to the verdict to determine whether a rational trier of fact
could have found that the evidence established the essential elements of the
offense beyond a reasonable doubt.” Id. (citations omitted).
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2. Analysis
i. Sufficiency of the Evidence for the Conspiracy Charges
Arthur and Andre argue that the evidence was insufficient to support
their convictions for conspiracy to possess drugs and conspiracy to possess
firearms in furtherance of the drug-trafficking crime. Both argue that, during
trial, the Government failed to prove that any agreement existed between the
two of them to possess drugs or firearms. In response, the Government points
to testimony throughout the three-day jury trial, physical evidence police
recovered, and recorded conversations that, it claims, allowed the jury to find
the required elements satisfied beyond a reasonable doubt.
“[T]he elements of the conspiracy may be established by circumstantial
evidence and may be inferred from the development and collocation of
circumstances.” United States v. Mendoza, 226 F.3d 340, 343 (5th Cir. 2000)
(citation and internal quotation marks omitted). “An express, explicit
agreement is not required; a tacit agreement will suffice.” United States v.
Greenwood, 974 F.2d 1449, 1457 (5th Cir. 1992) (citation omitted). And, as this
Court has previously recognized, “direct evidence of an agreement to deal in
drugs rarely exists.” United States v. Ornelas–Rodriguez, 12 F.3d 1339, 1345
(5th Cir. 1994).
We hold that the evidence was sufficient to support Arthur’s and Andre’s
convictions for conspiracy. First and foremost, police officers found Andre and
Arthur together in Andre’s apartment in February 2011, when the police
recovered more than 11 grams of crack cocaine separated into 60 baggies,
firearms, a scale, and more than $2,000 in cash. In addition, the jury heard
recordings and read transcripts of more than a dozen recorded phone calls
between Arthur and Andre. During those phone calls, Arthur and Andre
repeatedly discussed drugs, firearms, and money earned from selling drugs
and gave each other advice.
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For example, in the phone calls immediately following the September
2008 incident, Andre told Arthur that “I told them ni--ers about leavin’ all them
guns in they houses” and “I used to tell them, what you gone put that s--t
in, what you got all that sh--t in the house for? That sh--t don’t supposed to be
in no house.” Arthur and Andre also discussed how much to pay a woman
named Bree: “I had to boost her up to seventy . . . she doin’ good”/“I might just
give her five, fifty”/“Man, I’d give that ‘ho thirty-five man. She, she gone make
a bill easy”/“But she, I’m lookin’ at the other point, I’m not out there, see what
I’m sayin’.” Arthur also gave Andre advice, telling him “you better learn how
to whip [i.e., convert powder cocaine into crack cocaine]. I ain’t f--kin’ with that
s--t when I come home though, man.” In the same call, Arthur also told Andre
that Andre “probably woulda been made about a hundred stacks [one stack is
$1,000]” and telling him “if you plan before you do s--t, round, you’ll be stacked
out.” Viewing the evidence in the light most favorable to the verdict, we hold
that a reasonable trier of fact could have found the evidence proved the
conspiracy charges beyond a reasonable doubt.
ii. Sufficiency of the Evidence to Support Convictions for
Possession of Drugs and Firearms Stemming from the
February 2011 Incident
Andre argues that, if we reverse the conspiracy convictions as he urges
us to do, we should also vacate his possession convictions because those
convictions relied on co-conspirator evidence that would not have been
admissible without the conspiracy. Arthur also claims that the evidence was
insufficient to support his conviction for possession of crack cocaine with an
intent to distribute and possession of a firearm based on the February 2011
incident. He argues that no physical evidence linked him to the contraband
and so he cannot be held responsible for the drugs and firearms that the police
recovered from Andre’s apartment.
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We hold that the evidence was sufficient to support these convictions.
Andre’s only argument in favor of vacating his drug and firearms possession
convictions rests on this Court reversing his conspiracy convictions. He claims
that, because the conspiracy conviction should be reversed, statements of co-
conspirators should not have been admitted, and thus, we should vacate his
possession convictions. Because we affirm his conspiracy convictions and the
evidence supports his possession convictions, we affirm his convictions for
possession of drugs and firearms.
Arthur’s arguments also do not convince us that the evidence was
insufficient to support his convictions for possession. His arguments ignore
the fact that the jury was not required to find that Arthur actually possessed
the contraband. He could have been found to have constructive possession of
the drugs and firearms; he also could have been held liable for Andre’s
substantive offenses during the conspiracy as a co-conspirator. See Ornelas–
Rodriguez, 12 F.3d at 1345–46 (affirming the conviction of a co-conspirator for
possession of cocaine even when “much of the government’s evidence regarding
the participation by [the defendant] may have been circumstantial”). Here,
Arthur was found in Andre’s apartment along with Andre and TH, and police
officers also found drugs, firearms, ammunition, a scale, plastic baggies, and
cash in Andre’s apartment. Combined with the other evidence that supports
the conspiracy conviction, such as the recorded phone calls discussed above, we
hold that a reasonable trier of fact could have found beyond a reasonable doubt
that Arthur possessed the contraband.
B. Jury Instruction for Charge for Possession of a Firearm in
Furtherance of a Drug-Trafficking Crime under 18 U.S.C. § 924(c)
1. Standard of Review
The parties dispute the appropriate standard of review for this issue.
Arthur argues that the Court should review the jury charge on the violation of
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18 U.S.C. § 924(c)(1)(A) de novo. He claims that he properly objected at trial,
and he acknowledges that this Court typically reviews a failure to give a
requested jury instruction for an abuse of discretion. But, Arthur cites United
States v. Wright, 634 F.3d 770 (5th Cir. 2011), for the proposition that “when a
jury instruction hinges on a question of statutory construction, [this Court’s]
review is de novo.” Id. at 774. While Andre acknowledges that his attorney
did not object at trial, he cites United States v. Sanchez–Sotelo, 8 F.3d 202, 210
(5th Cir. 1993), to show that Arthur’s objection preserves the error for him as
well. Andre also agrees with Arthur that the standard of review should be de
novo. The Government, however, responds that plain error review is
appropriate because Arthur failed to adequately object and that “at best” his
attorney’s objection was “vague.”
We agree with Arthur and Andre that we review the jury instruction de
novo. Arthur’s attorney asked the district court for clarification of the jury
instruction and requested that the court use his suggested language for the
jury instruction instead, thereby preserving his argument for appeal. See
United States v. Trice, 823 F.2d 80, 91 n.11 (5th Cir. 1987) (holding that a
similarly worded objection, although not “a model of clarity,” was minimally
sufficient to alert the court to the substance of the objection). Further, the
objection to the jury instruction hinges on a question of statutory
interpretation. Arthur and Andre claim the jury instruction was improper
because it did not correctly encapsulate the statutory requirements for the
crime of possession of a firearm in furtherance of a drug-trafficking crime
under § 924(c). Thus, we review the jury instructions for possession of a
firearm in furtherance of a drug-trafficking crime de novo.
2. Analysis
Arthur argues that the § 924(c) jury instruction allowed the jury to
convict him without finding the necessary elements of the § 924(c) offense. He
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claims that, under the given instruction, the jury could have found him guilty
so long as it found that the firearms in question furthered the drug-trafficking
offense, even if the jury did not believe that his possession of the firearms
actually did so. Andre adopts this argument and further argues that the jury
instruction removed the requirement of subjective intent that is inherent in
the statute. The Government, pointing out that the district court followed this
Court’s pattern jury instructions for an alleged offense under §924(c), argues
that the instructions required the Government to prove precisely what the
statute requires.
We hold that the 18 U.S.C. § 924(c) jury instruction was correct. First,
the Government is correct that the § 924(c) jury instruction given in this case
mirrors the Fifth Circuit pattern jury instructions almost exactly. 5 Second,
both the pattern jury instructions and the jury instructions in this case follow
the language in § 924(c) and courts’ interpretations of that language. See 18
U.S.C. § 924(c)(1)(A) (“any person who, . . . in furtherance of any [drug-
trafficking crime], possesses a firearm”); see also Dean v. United States, 556
U.S. 568, 571–74 (2009) (interpreting § 924(c)(1)(A)); United States v. Ceballos–
5 The jury instructions in this case were as follows:
The second element is that the defendant knowingly possessed a
firearm in furtherance of the defendant’s alleged commission of the crimes as
charged in Counts 1, 3 and/or 5.
To prove that the defendant possessed a firearm in furtherance of the
drug-trafficking offense, the government must prove that the defendant
possessed a firearm that furthers, advances or helps forward the drug-
trafficking crime.
The Fifth Circuit pattern jury instructions read:
Second; That the defendant knowingly possessed a firearm in
furtherance of the defendant’s commission of the crime charged in Count ___.
To prove the defendant possessed a firearm “in furtherance,” the
government must prove that the defendant possessed a firearm that furthers,
advances, or helps forward the drug trafficking crime.
Fifth Circuit Pattern Jury Instructions (Criminal) § 2.48 (2012).
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Torres, 218 F.3d 409, 415 (5th Cir. 2000) (interpreting the possession element
of § 924(c) and holding that “firearm possession that furthers, advances, or
helps forward the drug trafficking offense violates the statute”). Finally, this
Court has previously upheld these pattern jury instructions as correctly
stating the law. See United States v. Montes, 602 F.3d 381, 386–87 (5th Cir.
2010) (holding that the § 924(c)(1) instructions “correctly stated the law” where
the defendant–appellant had challenged them as “convoluted” and “hard to
understand”). 6 Thus, we hold that the district court did not err in instructing
the jury on the count of possession of a firearm in furtherance of a drug-
trafficking crime charged under 18 U.S.C. § 924(c).
C. Failure to Instruct the Jury to Disregard the Offenses Arthur
Committed as a Minor
1. Standard of Review
Both parties agree that Arthur did not raise this issue before the district
court, and thus, we review only for plain error. Under plain error review, the
Defendant–Appellant “must show: (1) an error, (2) that is plain, (3) and that
affected his substantial rights.” United States v. Garcia–Gonzalez, 714 F.3d
306, 315 (5th Cir. 2013) (citation omitted). Even if the Defendant–Appellant
satisfies those criteria, this Court “will exercise discretion to correct the error
only if the error seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings.” Id. (alteration in original) (citation and internal
quotation marks omitted).
6 Specifically, Arthur and Andre argue that the instruction is currently ambiguous as
to whether the firearm or the possession of that firearm must be “in furtherance” of the crime.
We agree with the Government’s interpretation and think that the instruction correctly
states the law. Nonetheless, the pattern jury instruction may warrant future revision to
provide greater grammatical clarity.
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2. Analysis
Arthur argues that the district court erred by failing to instruct the jury
that it could not consider the events that took place when he was under
eighteen years old. He points out that he was seventeen at the time of the
September 2008 incident, and yet the jury was able to evaluate his conduct as
a juvenile in conjunction with the other incidents that occurred when he was
an adult (in June 2010 and February 2011) and the recorded phone calls.
“The circuits are split on whether the district court must instruct the
jury to disregard evidence of pre-eighteen conduct when assessing guilt” in a
continuing crime, such as a conspiracy. United States v. Tolliver, 61 F.3d 1189,
1199–1200 (5th Cir. 1995), vacated on other grounds sub nom. Moore v. United
States, 519 U.S. 802 (1996). Although we acknowledged this circuit split in
Tolliver, we left unanswered the question of whether the failure to give such a
limiting instruction is error. This Court reasoned that, because the “post-
eighteenth birthday evidence was sufficient to support the jury’s verdict,” the
defendant could not establish plain error. Id. at 1200–01. Arthur argues that
his case is distinguishable from Tolliver, because, in his case, the post-eighteen
conduct is insufficient to support the verdict. But, as we have previously
discussed, see supra Part III(A)(2), the jury saw a great deal of post-eighteen
evidence on which it could have based Arthur’s guilty verdict. Thus, Arthur’s
case is not factually distinguishable from Tolliver.
We therefore hold that the district court’s failure to give an instruction
limiting the jury’s reliance on Arthur’s juvenile conduct was not plainly
erroneous. Under Henderson v. United States, 133 S. Ct. 1121 (2013), “a
substantive legal question that was unsettled at the time the trial court acted
. . . foreclose[s] the possibility that an error could have been ‘plain’” unless it
becomes settled by the time of appellate review. Id. at 1124–25. Here, the
substantive legal question of whether the district court was required to
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instruct the jury to disregard Arthur’s pre-eighteen conduct was unanswered
at the time of the trial. This Court still has not resolved this question, and
given the sufficiency of the evidence of post-eighteen conduct, we need not
answer it today. Thus, the district court did not plainly err in failing to give
this instruction.
D. Calculation of Arthur’s Guidelines Range
1. Standard of Review
Under Gall v. United States, 552 U.S. 38 (2007), appellate courts take a
two-step approach to reviewing sentences. Id. at 51. This Court must first
review a sentence to ensure that it is procedurally sound and, assuming that
it is, then consider the substantive reasonableness of the sentence under an
abuse of discretion standard. Id. Nothing in this analysis under Gall, though,
“alter[s] our review of the district court’s construction of the Guidelines or
findings of fact.” United States v. Cisneros–Gutierrez, 517 F.3d 751, 764 (5th
Cir. 2008). Thus, we still review factual findings related to sentencing for clear
error. Id. (citation omitted). Drug quantity determinations are factual
determinations, United States v. Ramirez, 271 F.3d 611, 612 (5th Cir. 2001)
(citation omitted), as is the determination of whether a defendant is a § 3B1.1
leader or organizer, United States v. Valencia, 44 F.3d 269, 272 (5th Cir. 1995).
“If the district court’s account of the evidence is plausible in light of the record
viewed in its entirety, [this Court] may not reverse,” even if, had we been
sitting as trier of fact, we might have weighed the evidence differently.
Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573–74 (1985). “Where
there are two permissible views of the evidence, the factfinder’s choice between
them cannot be clearly erroneous.” Id. at 574.
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2. Analysis
i. Calculation of the Drug Quantity
Arthur argues that he should only be held responsible for 15.7 grams of
crack cocaine, the actual amount that police seized in the three incidents. The
Government, though, claims that the district court did not clearly err in finding
Arthur responsible for at least 28 grams of crack cocaine. For support, the
Government points to the comments to U.S.S.G. § 2D1.1, which allow the
district court to approximate the quantity of the controlled substance when the
“amount seized does not reflect the scale of the offense.” U.S.S.G. § 2D1.1 cmt.
n.5. Thus, the Government argues, the district court did not err in relying on
the amount of cash the police seized and the recorded phone calls to estimate
that Arthur was responsible for at least 28 grams.
We agree that the district court’s finding that Arthur was responsible for
at least 28 grams of crack cocaine was not clearly erroneous. This Court has
previously affirmed sentences where the district court, citing the comments to
U.S.S.G. § 2D1.1, estimated the drug quantity when the amount actually
seized did not reflect the scale of the offense, see United States v. Robins, 978
F.2d 881, 889–90 (5th Cir. 1992), and we see no error in the district court using
the same approach in this case. During sentencing, the district court judge
stated that given Arthur’s and Andre’s “extensive dealings” there was
“sufficient evidence that their conspiracy and drug dealing greatly exceeded at
least 28 grams.” Our review of the record shows that the evidence supports
this finding. The district court relied on (1) a phone call where Andre talked
about having “a zone” (an ounce, or 28 grams of crack cocaine); (2) a phone call
during which Arthur told Andre that if he kept going, he would “make a 100
stacks, meaning $100,000”; and (3) the $2,473 in cash that police found during
the February 2011 incident. The record, viewed as a whole, makes the
estimate of at least 28 grams plausible and not clearly erroneous.
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ii. Sentence Enhancement for Being a Leader of a Minor
Arthur also argues that the district court improperly found that he
supervised his younger brother TH. To argue that this factual finding is clearly
erroneous, Arthur points to a recorded phone call where he asked TH to
retrieve drugs and TH refused. While he acknowledges that a police officer
testified at trial that Arthur’s mother had told the officer that Arthur made TH
a drug mule, Arthur emphasizes that his mother testified at trial that she did
not remember making that statement.
After reviewing the record, we hold that the district court’s finding that
Arthur supervised TH was not clearly erroneous. In the recorded phone calls,
Arthur stated that, during the June 2010 incident, he told TH to answer the
door when police arrived; he discussed TH taking responsibility for the drugs
found during the same incident; and he told his mother to ask TH to lie if the
police questioned him about the June 2010 arrest. Perhaps most importantly,
at Arthur’s trial, a police officer testified that Arthur’s mother had told the
officer that she threw Arthur out of her house and “had [Arthur] arrested
before for fighting, bullying . . . [TH], for making him mule,” which the officer
understood to mean “to transport drugs.” And while Arthur is correct that his
mother testified at trial that she did not remember making that statement,
“[w]here there are two permissible views of the evidence, the factfinder’s choice
between them cannot be clearly erroneous.” Anderson, 470 U.S. at 574. The
district court had the opportunity to evaluate the credibility of both the police
officer and Arthur’s mother, and we must respect that determination. See
Amadeo v. Zant, 486 U.S. 214, 223 (1988). Taking all of these facts together,
we hold that the district court’s finding that Arthur supervised TH was not
clearly erroneous.
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E. Substantive Reasonableness of Arthur’s and Andre’s Sentences
1. Standard of Review
This Court reviews the substantive reasonableness of a sentence under
an abuse of discretion standard. See Gall, 522 U.S. at 51. We apply a
presumption of reasonableness if the sentence is within the guidelines range.
United States v. Gutierrez–Hernandez, 581 F.3d 251, 254 (5th Cir. 2009)
(citation omitted). “The presumption is rebutted only upon a showing that the
sentence does not account for a factor that should receive significant weight, it
gives significant weight to an irrelevant or improper factor, or it represents a
clear error of judgment in balancing sentencing factors.” United States v.
Cooks, 589 F.3d 173, 186 (5th Cir. 2009) (citation omitted).
2. Substantive Reasonableness of the Sentences
i. Substantive Reasonableness of Arthur’s 481-Month Sentence
Arthur argues that his sentence “was greater than necessary to
accomplish the proper goals of imprisonment under § 3553(a)(2) and therefore
was unlawful.” Specifically, he mentions that he was a minor at the time of
some of the offenses and that he “has struggled emotionally since childhood.”
He also claims that the district court “gave too much weight to the Guidelines
in refusing [his] request for a downward variance.” The Government disagrees,
pointing out that the district court imposed a sentence that was at the bottom
of the guidelines range.
We hold that Arthur’s sentence is not substantively unreasonable.
First, his sentence was within the guidelines: his guidelines range was 121–
151 months, and he was sentenced to 121 months’ imprisonment to be served
consecutively with the mandatory thirty-year sentence. Thus, a presumption
of reasonableness attaches, see Gutierrez–Hernandez, 581 F.3d at 254, a
presumption that Arthur has failed to rebut. The district court considered the
§ 3553(a) factors, and while recognizing that “[i]t’s a very long sentence
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obviously,” the court also noted that Arthur is “a person that should not be
returned to the streets any time soon because [he is] . . . a menace to [him]self
and to society.” There is no evidence that the district court gave undue weight
to any factors, failed to consider factors that it should have, or made a clear
error in balancing sentencing factors. Finally, as this Court has previously
observed, “it will be rare for a reviewing court to say . . . a sentence [at the
bottom of the guidelines range] is ‘unreasonable,’” United States v. Mares, 402
F.3d 511, 519 (5th Cir. 2005), and we see no reason to do so in this case. See
also United States v. Alonzo, 435 F.3d 551, 554–55 (5th Cir. 2006) (holding that
defendant–appellant had “failed to demonstrate that his properly calculated
Guidelines sentence, which was at the lowest end of the range, was
unreasonable”).
ii. Substantive Reasonableness of Andre’s 181-Month Sentence
Andre argues that his sentence is substantively unreasonable for two
main reasons. First, he alleges that the district court did not give sufficient
weight to his positive character traits despite his difficult upbringing. He
points out that he had a legal job, and he cites to a recorded conversation
between himself and Arthur that he claims demonstrates that he has a “strong
sense of fairness.” Second, he claims that the firearms he possessed were
necessary for protection and that “there is a moral distinction between people
who initiate violence to advance their own ends and people who are caught up
in the ensuing maelstrom,” as he was. The Government rejects the idea that
Andre’s sentence failed to account for factors that should be given significant
weight and also rejects the idea that Andre’s need for guns for personal
protection because of his drug-trafficking activity supports a variance.
We hold that Andre’s sentence is not substantively unreasonable. He
was sentenced within the guidelines, see supra Part I(B), and so a presumption
of reasonableness attaches to his sentence. See Gutierrez–Hernandez, 581 F.3d
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at 254. Andre has failed to rebut this presumption. The district court
considered the factors in § 3553(a) in imposing his sentence. While Andre
claims the district court did not properly weigh his employment or consider
that he needed the firearms for protection, he has not cited any authority to
support his claim that those factors rebut the presumption of reasonableness,
nor have we located any authority that would support that position. Given the
fact that the district court gave a sentence within guidelines and considered
relevant factors without giving undue weight to improper factors, we cannot
say that the district court abused its discretion in sentencing Andre. See
United States v. Duarte, 569 F.3d 528, 530 (5th Cir. 2009) (rejecting the
argument that the sentence was substantively unreasonable where the district
court judge had “considered [the defendant’s] case carefully”).
F. Alcohol, Tobacco, and Firearm Agent’s Testimony
1. Standard of Review
The parties dispute the standard of review that applies to this issue,
because they disagree about whether the issue was adequately preserved for
appeal. Andre and Arthur argue that this Court should review the admission
of all of Agent Pecora’s testimony for an abuse of discretion. 7 They point out
that Andre’s attorney objected near the beginning of Agent Pecora’s testimony,
and, when the court overruled the objection, “[t]he ground for the ruling
assumed that Pecora was allowed to interpret the tapes so long as her
interpretation was reasonable,” thus making any further objection “futile.”
While the Government agrees that this Court should review the specifically
objected-to question and answer for an abuse of discretion, the Government
claims that the rest of Agent Pecora’s testimony should only be reviewed for
7 In a letter filed pursuant to Federal Rule of Appellate Procedure 28(i), Arthur
adopted Andre’s arguments on this issue, and so we refer to Andre and Arthur as making
these arguments together.
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plain error. The Government argues that the record does not support Arthur’s
and Andre’s claim that further objection would be futile and that nothing about
the objection suggested it applied to the testimony that followed.
Under certain circumstances, a party can preserve error without a
formal objection. See United States v. Gerezano–Rosales, 692 F.3d 393, 399
(5th Cir. 2012). This can occur when “(1) ‘[t]he essential substance of the
objection is obvious and was made known to the district court’ and (2) the
‘context of the [informal] objection and ruling’ suggests that ‘counsel was
entitled to believe that further explanation would not be welcomed or
entertained by the district court.’” Id. (alterations in original) (quoting United
States v. Mendiola, 42 F.3d 259, 261 n.2 (5th Cir. 1994)).
Neither of those circumstances is present here. First, the language of
the objection and the court’s ruling only applied to that particular question and
answer. Andre’s objection specifically stated “especially a sentence like that,”
and the court’s ruling referred to Agent Pecora’s interpretation of “that”
sentence as “a fair statement.” Andre’s objection also did not make the
essential substance of all of his objections to Agent Pecora’s testimony obvious.
He objected before the district court that “the words speak for themselves,” but
on appeal, he argues that Agent Pecora’s testimony “went far beyond
interpreting code” and “was improper and prejudicial.” Second, there is no
evidence that the district court would not have entertained further explanation
or objection in this case. But see United States v. Castillo, 430 F.3d 230, 241–
43 (5th Cir. 2005) (holding that a formal objection was not required where the
district court’s “evident anger” and “its unusual hostility toward the
prosecutor” would have made further objection futile). Thus, we will review
the admission of the objected-to question and answer for an abuse of discretion,
see United States v. El–Mezain, 664 F.3d 467, 511 (5th Cir. 2011), and the
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decision to admit the rest of the testimony for plain error, see Garcia–Gonzalez,
714 F.3d at 315 (citation omitted).
2. Analysis
Andre and Arthur argue that Agent Pecora’s testimony went far beyond
interpreting drug code and invaded the province of the jury. The Government
responds that Agent Pecora’s testimony was properly admitted under Federal
Rule of Evidence 701. In support, the Government points to case law from this
Circuit, in particular El–Mezain, 664 F.3d 467, and United States v. Miranda,
248 F.3d 434 (5th Cir. 2001), that, it argues, allows the type of testimony Agent
Pecora gave in this case.
As an initial matter, we reject the Government’s claims that El–Mezain
and Miranda allow testimony like the testimony Agent Pecora gave in this
case. The Government is wrong to rely on the properly admitted, more limited
testimony in those cases as support for Agent Pecora’s much more extensive
testimony in this case. Agent Pecora’s testimony exceeds anything we may
have permitted in El–Mezain or Miranda. Nevertheless, because the objection
to the bulk of the testimony was not preserved for appeal, we can only review
its admission for plain error.
After careful review, we hold that the district court did not plainly err in
admitting the bulk of Agent Pecora’s testimony. In his brief, Andre states that
this Court “has not discussed in a published opinion when a law enforcement
officer’s testimony goes beyond interpreting drug traffickers’ jargon”; the
Government agrees, explaining that it was unable to find “a published Fifth
Circuit opinion addressing admissibility of inferences drawn from recorded
conversations.” We have also been unable to find a binding case that offers
guidance as to the admissibility of testimony like the testimony Agent Pecora
gave in this case. Because this question was unanswered at the time of trial
and remains unanswered now, the district court’s decision to admit the agent’s
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testimony was not plainly erroneous. See Henderson, 133 S. Ct. at 1124–25;
see also Puckett v. United States, 556 U.S. 129, 135 (2009) (explaining that for
plain error to apply, “the legal error must be clear or obvious, rather than
subject to reasonable dispute”).
We turn next to the objected-to portion of Agent Pecora’s testimony.
Even assuming without deciding that the court abused its discretion in
admitting that specific testimony, any error that may have occurred was
harmless. See United States v. Morin, 627 F.3d 985, 994 (5th Cir. 2010)
(explaining that harmless error analysis applies even when the defendant
objects to the district court’s decision to admit testimony). Beyond the one
sentence of objected-to testimony, the jury considered a substantial amount of
evidence, including the audio recordings and transcripts of the telephone calls
that Agent Pecora interpreted before the jury. This unobjected-to evidence
provided a more than adequate basis to support the jury’s decision in this case.
See supra Part III(A)(2).
Thus, we hold that the district court did not plainly err in admitting the
bulk of Agent Pecora’s testimony and that any error in admitting the objected-
to testimony was harmless.
G. Alleged Fourth Amendment Violation
1. Standard of Review
The parties dispute whether Andre’s claimed Fourth Amendment
violation is reviewable on appeal. While acknowledging that circuit precedent
bars him from raising his alleged Fourth Amendment violation for the first
time on appeal without showing cause, Andre claims that cause exists for two
reasons. First, he states that he sent a pro se letter to the district court
explaining that he had asked his attorney to file a motion to suppress but that
the attorney did not do so. Alternatively, he argues cause exists because his
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trial counsel provided ineffective assistance. At the very least, Andre argues,
his Fourth Amendment claim should be reviewed for plain error.
The Government disagrees and argues that Andre’s Fourth Amendment
claim is procedurally barred and substantively undeveloped. The Government,
relying on United States v. Chavez–Valencia, 116 F.3d 127 (5th Cir. 1997),
claims that Andre cannot show cause for failing to raise the suppression issue
before the district court. In fact, the Government argues, Chavez–Valencia
specifically rejects the two grounds Andre asserts for cause.
We hold that Andre’s allegation of a Fourth Amendment violation is
unreviewable. Despite Andre’s arguments to the contrary, Chavez–Valencia
forecloses review of his claim. In Chavez–Valencia, we held that “the failure to
raise a suppression issue at trial forecloses a defendant from raising the issue
for the first time on appeal.” Id. at 129. Our decision in Chavez–Valencia
specifically considered—and rejected—the two arguments Andre raises as
cause: (1) that the waiver was not voluntary and (2) ineffective assistance of
counsel. As to the first issue, we observed that failing to follow Rule 12
typically is “not an intentional abandonment of the right to suppression,” but
that waiver nevertheless had “its usual legal consequences.” Id. at 130. As to
the second issue, we rejected the idea that ineffective assistance of counsel
made the defendant’s Fourth Amendment claim reviewable. Id. at 134.
“Failure to file a suppression motion does not constitute per se ineffective
assistance of counsel,” and absent more information about why the attorney
did not file the motion, we could not review the claim. Id.
There is nothing in Andre’s brief that alters the rule articulated in
Chavez–Valencia or makes it inapplicable here. While Andre filed a letter with
the district court stating that he had asked his lawyer to file a motion to
suppress, he sent that letter to the district court on December 30, 2011—two
weeks after the jury had already returned a guilty verdict. Thus, the district
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court did not have the opportunity to consider the suppression issue during the
course of the trial. As in Chavez–Valencia, we also decline to review Andre’s
claim that he received ineffective assistance of counsel. Though he complained
of his counsel’s performance in his letters to the district court and during his
sentencing hearing, the record is insufficiently developed to permit accurate
review of this claim.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the district court.
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