United States v. Orr , 136 F. App'x 632 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT June 21, 2005
Charles R. Fulbruge III
Clerk
No. 03-60824
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELI “TOM” ORR,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Mississippi
(1:03-CR-35)
Before WIENER, BARKSDALE, AND DENNIS, Circuit Judges.
PER CURIAM:*
Eli “Tom” Orr was found guilty by a jury of two counts of
distribution of in excess of 50 grams of cocaine base, in violation
of 21 U.S.C. § 841(a) and (b)(1)(A), and of conspiracy to
distribute in excess of 500 grams of cocaine hydrochloride, in
violation of 21 U.S.C. §§ 841(a), (b)(1)(B) and 846. Pursuant to
21 U.S.C. §§ 841 and 851, and because of prior drug convictions,
Orr was sentenced to life imprisonment. Orr appeals both his
conviction and sentence, raising 14 issues. The primary claims
*
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this opinion should not be published and is not precedent except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.
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are: (1) the district court erred in denying Orr’s motion to
suppress; (2) the Government engaged in misconduct through both
failure to produce grand jury testimony and closing argument; (3)
the district court erred by instructing the jury it had to find the
conspiracy involved cocaine base, rather than cocaine as charged in
the indictment; (4) the district court erred in enhancing Orr’s
sentence based on prior convictions; and (5) Orr’s sentence is
unconstitutional under United States v. Booker, 125 S. Ct. 738
(2005) (federal sentencing guidelines only advisory). AFFIRMED.
I.
On 8 March 2003, at approximately 12:30 a.m., Orr was a
passenger in his automobile parked in a handicapped parking space
outside a convenience store in Memphis, Tennessee. The automobile
had no handicapped license plate, sticker, or placard. Because
being so parked is a traffic violation in Memphis, Officer Brown
approached Glory Howard, who was in the driver’s seat, and asked
for her driver’s license, which she could not produce. Instead,
she presented a chain store identification card which contained
the driver’s license number.
After a computer check revealed Howard’s Mississippi driver’s
license was suspended, Officer Brown asked Howard to exit the
automobile. As part of a detention procedure, Officer Brown patted
Howard down; when doing so, he felt brick-like objects in the
jacket she was wearing. Howard denied knowledge of the jacket’s
2
contents, claiming the jacket was Orr’s. After Howard removed the
jacket, Officer Brown placed it on the trunk of the vehicle.
Orr exited the vehicle and approached Officer Brown, who
instructed him to put his hands on the trunk. While Officer Brown
was attempting to pat Orr down, he swung at the Officer, grazing
his head, grabbed the jacket from the trunk of the automobile and
ran. After a chase, Orr was captured and the jacket retrieved.
Four bricks of powdered cocaine were removed from its lining, and
$1,820 was seized from Orr.
Orr was charged with two counts of distribution of in excess
of 50 grams of cocaine base; he and Howard were charged with one
count of conspiracy to distribute in excess of 500 grams of cocaine
hydrochloride. On the first day of trial, Howard pled guilty.
At Orr’s trial, Howard testified about: traveling with Orr to
Chicago to pick up drugs, intending to transport them to Houston,
Mississippi; placing the cocaine in Orr’s jacket; and the events in
the Memphis parking lot. In addition, Littleton Howard and Willie
Ewell testified about their cocaine dealings with Orr. Both had
pled guilty to drug violations and testified in the hope of lower
sentences. Ewell testified to Orr’s “fronting” him crack cocaine,
for which Orr was later paid. Several such transactions had been
recorded with both audio and video recording devices. The tapes
and corresponding transcripts for one of the transactions were
admitted in evidence. Officers testified to surveillance of the
other recorded transactions.
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A jury found Orr guilty on all three counts. He was
sentenced, inter alia, to imprisonment for life on each count, to
run concurrently.
II.
Orr’s 14 issues are addressed below. Each is without merit.
A.
Orr challenges the denial of his motion to suppress evidence
obtained from the stop and detention of Howard. An evidentiary
hearing was held in June 2003, shortly before trial. For the
motion, the district court’s factual findings are reviewed only for
clear error; its legal conclusions, de novo. E.g., United States
v. Burbridge, 252 F.3d 775, 777 (5th Cir. 2001). The evidence is
viewed in the light most favorable to the party prevailing in
district court. Id.
Orr contends: there was no moving violation, only a parking
violation, which did not require production of a driver’s license;
Officer Brown had no probable cause to arrest or detain Howard for
operating a vehicle with a suspended license, but instead, should
have cited the vehicle and ended the detention; because there was
no probable cause to arrest, searching Howard violated the Fourth
Amendment; and, therefore, all evidence obtained during and after
the search was fruit of the poisonous tree.
Officer Brown was not required to simply issue a parking
citation and end Howard’s detention after discovering she had a
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suspended license. Upon the Officer’s making that finding, he had
the authority to arrest her for driving with a suspended license,
because, inter alia, he had witnessed her attempting to back out of
the handicapped parking space. The district court did not err in
concluding there was probable cause to arrest and search Howard.
See United States v. Robinson, 414 U.S. 218, 225, 236 (1973).
Therefore, Orr’s suppression contention is without merit.
B.
Consistent with his objection at trial, Orr asserts that,
because the Government failed to prove the chain of custody, the
district court should not have admitted into evidence drugs either
found in the jacket Howard was wearing or received from Ewell. The
admission of evidence is reviewed for abuse of discretion. United
States v. Dixon, 132 F.3d 192, 197 (5th Cir. 1997), cert. denied,
523 U.S. 1096 (1998). “[A] ‘break in the chain of custody simply
goes to the weight of the evidence, not its admissibility’”. Id.
(quoting United States v. Sparks, 2 F.3d 574, 582 (5th Cir. 1993),
cert. denied, 510 U.S. 1080 (1994)). In short, the Government need
only make a prima facie showing of authenticity. See Sparks, 2
F.3d at 582.
1.
Orr maintains: the only evidence of the two surveilled
transactions involving Ewell is the account given by Ewell, a paid
informant; the chain of custody was broken; and the tape recording
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of these transactions is unreliable because Ewell gave the tape to
the Agents.
Ewell testified that Orr delivered the cocaine base to him.
Ewell gave the substance from the first transaction to Officer
Howell, after initialing its packaging; that Officer gave the
substance to Special Agent Douglas. Ewell gave the substance from
the second transaction to Special Agent Douglas.
Special Agent Douglas forwarded the substances from both
transactions to the DEA lab in Dallas, Texas, after the substances
field tested positive for cocaine. A DEA forensic chemist
testified the evidence was sealed when she received it. The
substances contained cocaine base. The first weighed 97.2 grams;
the second, 89 grams.
The Government made a prima facie showing of authenticity, and
the district court did not err in admitting the evidence.
Obviously, Orr’s objection to Ewell’s credibility was a question
for the jury to weigh. See id.
2.
For the conspiracy count, concerning drugs seized from the
jacket Howard was wearing, Orr asserts: Officer Brown neither
maintained custody of the substance nor field tested it to confirm
it was cocaine; and, after Officer Cooper took possession of the
substance from Officer Brown, he failed to initial the receipt for
it on providing it to the property room. Thus, Orr asserts Officer
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Cooper did not have custody of the contraband. Needless to say,
the mere failure to initial evidence does not render it
inadmissible. Dixon, 132 F.3d at 197 n.6.
Orr contends that, despite Howard’s identification at trial of
the contraband photographed on the trunk of his automobile as the
cocaine she transported from Chicago, Officer Cooper could not
confirm these packages were the same as those in photographs from
the crime lab. Orr notes that the packages did not all look the
same and were not packaged the same way and contends, without
citation or support, that subsequent to this case, the property
room officer was convicted of theft of drugs from the property
room. He also cites to a property tag, which has not been included
in the record on appeal.
Officer Cooper testified he took custody of the jacket and
cocaine at the scene, took the evidence to the property room, and
witnessed a member of the organized crime unit initial the evidence
as it was sealed in the property room. A Memphis Police Detective
testified he retrieved the cocaine from the property room and
delivered it to Special Agent Douglas. Special Agent Douglas
testified he received the cocaine from the Detective and prepared
a receipt, then delivered it to an Agent, who delivered it to the
Tupelo Police Department crime laboratory. An employee of that
laboratory testified she tested the substance from the sealed
package and determined it contained cocaine. The total weight of
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the bricks, without packaging, was 2,000.8 grams. The Government
made a prima facie showing of authenticity. Accordingly, the
district court did not abuse its discretion in admitting the
evidence over Orr’s objection. See id. at 197 & n.6.
C.
Citing 18 U.S.C. § 201(c)(3) (providing penalties for bribery
of, inter alia, witnesses), Orr maintains Ewell’s testimony was
illegal because: it resulted from a plea offer; and Ewell was paid
$1,000 by the Government to complete “the transactions”. It does
not appear this issue was raised in district court. In any event,
a favorable plea agreement in exchange for truthful testimony does
not violate § 201. See United States v. Haese, 162 F.3d 359, 368
(5th Cir. 1998), cert. denied, 526 U.S. 1138 (1999). And, § 201 is
not violated “when prosecutors compensate informants for their
cooperation”. United States v. Barnett, 197 F.3d 138, 145 (5th
Cir. 1999), cert. denied, 529 U.S. 1111 (2000).
D.
According to Orr, the district court lacked jurisdiction
because the Government did not establish a nexus between the
offense and interstate commerce. Congress’ regulation of
controlled substance offenses under 21 U.S.C. §§ 841 and 846 is
permissible under the Commerce Clause and showing an interstate
commerce nexus is not required. See United States v. Lopez, 459
F.2d 949, 953 (5th Cir.), cert. denied, 409 U.S. 878 (1972).
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E.
Orr contends the Government engaged in misconduct because it:
withheld transcripts of grand-jury testimony by Special Agent
Douglas, Officer Blaylock, and “others known and unknown”; and,
during closing argument, stated neither the drugs nor Orr “will
[]ever be on the street again”, and, if the jury failed to find Orr
guilty, it “deserved what [it] got”.
1.
Under the Jencks Act, the Government must produce, upon a
defendant’s motion and after a witness has testified on direct
examination, any statement in its possession “which relates to the
subject matter as to which the witness has testified”. 18 U.S.C.
§ 3500(b). Prior to trial, Orr requested production of the grand
jury testimony of “any person whom the [Government] intends to call
at trial”. The Government did not produce such testimony by
Special Agent Douglas or Officer Blaylock. (Orr does not identify
any others whose testimony may not have been produced. His request
for a transcript of the grand jury proceedings for use with this
appeal was denied by the district court because Orr failed to
articulate a particular need for it.)
The Government maintains that, even though it did not produce
this material, there was no Jencks Act violation because Orr did
not request the material at trial at the conclusion of the direct
examination of Special Agent Douglas or Officer Blaylock. The
Government also asserts that Orr waived this issue by failing to
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either pursue discovery during trial or alert the district court to
the issue.
In any event, Orr fails to make the requisite showing. He has
neither contended, nor shown, that the failure to produce the
transcripts “had a substantial influence on the judgment” or that
any witness’ testimony at trial differed substantially from that
before the grand jury. United States v. Montgomery, 210 F.3d 446,
451-52 (5th Cir. 2000).
2.
The claimed misconduct during closing argument is reviewed to
determine: “1) whether the prosecutor’s comments were improper,
and 2) if [they] were ..., whether they prejudiced the defendant’s
substantive rights”. United States v. Duffaut, 314 F.3d 203, 210
(5th Cir. 2002) (citation omitted). In deciding whether such
rights were affected, we consider: the degree of prejudice from
the statement; whether a cautionary instruction was rendered and
what effect it had; and the strength of the Government’s case. Id.
at 210-11.
a.
The Government contends it has been unable to locate in the
record where the jury was told that neither the drugs nor Orr would
be on the street again. In his opening brief, Orr does not provide
the requisite record citations for the allegedly improper remarks;
in his reply brief, he does not respond to this noted omission.
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Nor do we find the alleged remarks. Given Orr’s failure to show
the comment was made, this issue is without merit.
b.
The Government commented twice on society reaping what it
sows, to which Orr objected. Although the district court overruled
the first objection, it sustained the second to the statement that,
“if you can sit there and listen to that and then vote not guilty,
then, indeed, the people of north Mississippi are going to get just
the kind of criminals we deserve”. The district court admonished
the jury to disregard the statement.
The comments were improper. Given, however, the curative
instruction, the substantial evidence of Orr’s guilt, and his
failure to contend, or show, his substantive rights were
prejudiced, there is no reversible error. See id.
F.
According to Orr, the district court failed to instruct the
jury on the quantity of drugs it must find for conviction on counts
one and two (distribution of cocaine base). For each count,
however, the jury was instructed that the Government had to prove
beyond a reasonable doubt that the substance was cocaine base and
“weighed in excess of 50 grams” (as charged in the indictment).
G.
In count three, Orr was charged with conspiracy with Howard
to distribute, and possess with intent to distribute, cocaine. Orr
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claims for the first time on appeal that the district court erred
in its jury instruction for that count. Therefore, review is only
for plain error. FED. R. CRIM. P. 52(b); see United States v.
Partida, 385 F.3d 546 (5th Cir. 2004), cert. denied, 125 S. Ct.
1616 (2005). We may correct such forfeited error only if Orr shows
a plain (clear or obvious) error that affected his substantial
rights. FED. R. CRIM. P. 52(b); e.g., United States v. Calverley,
37 F.3d 160, 162-64 (5th Cir. 1994) (en banc), cert. denied, 513
U.S. 1196 (1995) (citing United States v. Olano, 507 U.S. 725
(1993)). Even then, whether to correct the forfeited error is
within our discretion; generally, we will not do so unless “the
error ‘seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings’”. Olano, 507 U.S. at 736
(citation omitted).
The district court instructed that the jury had to find two or
more persons agreed to distribute, or possess with intent to
distribute, more than 500 grams of cocaine base, rather than
cocaine, as charged in the indictment. Orr claims reversible plain
error, asserting the evidence was insufficient to establish the
offense involved more than 500 grams of cocaine base. Therefore, he
argues there was no conviction, or, alternatively, that any
conviction was for the lowest quantity of the default drug
(marihuana), which would result in a one to seven month sentence.
Orr contends: there is a reasonable likelihood the jury followed
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the court’s instructions; and this was not an isolated and
inadvertent error, as the Government contends.
The Government responds: it was an inadvertent misstatement;
throughout trial, all other references to the conspiracy count were
to cocaine; it was clear to everyone that this was the charge; the
evidence supporting Orr’s conviction on this count was
overwhelming; the jury instructions as a whole correctly stated the
law; and Orr’s substantial rights were not affected, given the
overwhelming evidence against him.
Pursuant to the Fifth Amendment, Orr had the right to be tried
only on the charges contained in the indictment. Partida, 385 F.3d
at 557. “[A] constructive amendment of the indictment is a
reversible error per se if there has been a modification at trial
of the elements of the crime charged”. United States v. Nunez, 180
F.3d 227, 230-31 (5th Cir. 1999) (internal quotation omitted). An
indictment is constructively amended when “the jury is permitted to
convict a defendant based on an alternative basis permitted by the
statute, but not charged in the indictment”. Partida, 385 F.3d at
557. Not all variances between an indictment and the jury
instructions are constructive amendments, however; some are
harmless error. Nunez, 180 F.3d at 231; see also FED. R. CRIM. P.
52(a). In reviewing jury instructions, we “rarely will reverse a
conviction based on a district court’s insignificant slip of the
tongue”. United States v. Phipps, 319 F.3d 177, 190 (5th Cir.
13
2003) (finding no reversible plain error where one reference was
made to proof by a preponderance of the evidence). “[T]he proper
inquiry is not whether the instruction ‘could have’ been applied in
an unconstitutional manner, but whether there is a reasonable
likelihood that the jury did so apply it”. Id. (quoting Victor v.
Nebraska, 511 U.S. 1, 6 (1994)) (emphasis in original).
Because the Government sought enhanced penalties against Orr,
based on the amount of drugs involved in the offense, the quantity
was required to be charged in the indictment and proved beyond a
reasonable doubt. See United States v. Doggett, 230 F.3d 160, 164-
65 (5th Cir. 2000), cert. denied, 531 U.S. 1177 (2001). Orr was
charged, in part, with conspiracy to distribute, and to possess
with intent to distribute, in excess of 500 grams of cocaine. The
district court read this portion of the indictment to the jury,
but, as noted, also charged the jury that it had to find beyond a
reasonable doubt “that two or more persons made an agreement to
commit the crime of distributing or possessing with intent to
distribute cocaine base, a controlled substance” and “that the
substance weighed in excess of 500 grams”.
There is no reasonable likelihood the jury applied the
incorrect instruction in an unconstitutional manner. See Phipps,
319 F.3d at 190. The error did not affect Orr’s substantial
rights. See Olano, 507 U.S. at 736. Accordingly, there was no
reversible plain error.
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H.
Orr contends use of a general verdict form deprived him of the
right to a unanimous verdict given the claimed ambiguity regarding
both whether he was convicted of an offense involving cocaine or
cocaine base and the jury charge for the conspiracy count. Orr did
not object at trial, however, to use of the form. Our review,
therefore, is only for plain error. Partida, 385 F.3d at 554.
General verdict forms are preferred by our court. See U.S. v.
McCracken, 488 F.2d 406, 418 (5th Cir. 1974); U.S. v. James, 432
F.2d 303, 307 (5th Cir. 1970), cert. denied, 403 U.S. 906 (1971).
Use of the form was not error, much less reversible plain error.
I.
Orr asserts he entered into an agreement in 1992 with the
State and United States to cooperate in solving a homicide in
exchange for then-pending charges being dismissed. He maintains:
the agreement prevented the Government from using for enhancement
purposes the offenses it agreed not to prosecute; and the
Government is barred by res judicata from violating the agreement.
The only evidence Orr submitted of such an agreement is an un-
executed counteroffer from the United States Attorney’s office; a
state court motion to dismiss an indictment based on this alleged
agreement; and a state court transcript referring to a plea
agreement with different terms. Because the alleged agreement is
not signed by the parties and was conditioned on certain events
15
which Orr has not shown occurred, he has not shown there is any
agreement. (Following oral argument here, Orr filed a motion to
place under seal this unexecuted agreement, which was attached as
an exhibit to his brief. Because that document was attached to
Orr’s original brief, and was, therefore, already in the public
record, his motion is DENIED.)
J.
Orr next claims the district court erred in sentencing him as
a career offender pursuant to U.S.S.G. § 4B1.1(a), which provides:
[a] defendant is a career offender if (1) the
defendant was at least eighteen years old at
the time the defendant committed the instant
offense of conviction; (2) the instant offense
of conviction is a felony that is either a
crime of violence or a controlled substance
offense; and (3) the defendant has at least
two prior felony convictions of either a crime
of violence or a controlled substance offense.
Orr, however, was sentenced, based on prior convictions, under the
enhancement provisions provided by 21 U.S.C. § 841 and the notice
provisions of 21 U.S.C. § 851. Section 841, in relevant part,
requires a mandatory term of life imprisonment upon a third
conviction following two prior drug felony convictions. The
Government’s notice of intent to seek an enhanced sentence,
required by § 851, and an addendum to that notice cited five prior
controlled substance offenses: (1) a 15 May 1980 conviction for
unlawful possession of a controlled substance; (2) a 13 April 1985
conviction for delivery of marihuana; (3) a 12 October 1993
16
conviction for the sale of cocaine; (4) a 15 May 1995 conviction
for possession with intent to sell a schedule II controlled
substance; and (5) a 15 May 1995 conviction for possession of a
schedule II controlled substance.
Orr claims his 12 October 1993 conviction for sale of cocaine
and his 15 May 1995 convictions for distribution of a controlled
substance and for possession of a controlled substance should not
have been counted because of the above-described claimed agreement
with the Government that the charges on which these convictions
were based would be dismissed. Although noting that the district
court found these offenses were beyond the five-year period during
which prior convictions could be challenged, see 21 U.S.C. §
851(e), Orr contends there is no statute of limitations regarding
his claimed agreement with the Government. In the alternative, he
maintains these three convictions were consolidated for sentencing
and, therefore, should count as only one conviction. The record
does not reflect these convictions were consolidated. Rather, Orr
was sentenced for the two 15 May 1995 convictions on the same day.
This does not require that they be treated as one conviction. See
United States v. Barr, 130 F.3d 711, 712 (5th Cir. 1997), cert.
denied, 523 U.S. 1065 (1998). Orr provides no basis for his
contention the 12 October 1993 conviction should be consolidated
with the two 15 May 1995 convictions.
17
Orr asserts he received a deferred or suspended sentence for
his 15 May 1985 conviction for possession of a controlled
substance. (This appears to be a reference to his 15 May 1980
conviction.) As a result, he contends that this conviction should
not have been counted. A prior felony conviction, however,
includes a state offense which is punishable by over a year of
imprisonment, regardless of the sentence actually imposed. See
U.S.S.G. § 4B1.2, cmt. n.1. Therefore, Orr’s being sentenced to
two years “conditional discharge” for this offense does not
preclude the conviction’s being a prior felony offense.
Orr does not contest including in the sentence calculation his
13 April 1985 conviction for delivery of marihuana. Accordingly,
based on his various challenges to his prior convictions being
counted, Orr asserts only that conviction can be counted. In
addition, he contends: he was not given the opportunity to contest
the prior convictions; and he should have been sentenced at level
32 and with a criminal history category of II. For the reasons
stated earlier, Orr’s contention that the prior convictions should
not have been counted in the light of the claimed agreement lacks
merit. Additionally, Orr has not provided a valid basis for not
counting his other prior convictions. He was given an opportunity
at sentencing to contest them, and did so. In sum, Orr has not
shown error in the district court’s application of § 841.
K.
18
Orr asserts the district court clearly erred by attributing,
based on trial testimony, 28 ounces of cocaine to him as relevant
conduct. Orr has not provided any record citations or legal
authority in support of this argument. Therefore, we will not
consider it because it is inadequately briefed. See Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
L.
Concerning the supervised release portion of his sentence, Orr
contends the district court’s application of the sentencing
enhancements under U.S.S.G. § 4B1.1 (career offender enhancement)
and 21 U.S.C. § 851 (enhancement for prior convictions) was
erroneous because it resulted in using the same information twice
to “double enhance” the term of such release. Orr offers no
argument or citation in support of this assertion. Because Orr has
not adequately briefed this issue, we do not consider it. See id.
M.
For the first time on appeal and prior to Booker being
rendered, Orr urged in his reply brief that his sentence be
reviewed under Blakely v. Washington, 124 S. Ct. 2531 (2004),
because he received a life sentence on the conspiracy count, even
though the maximum statutory sentence was 40 years of imprisonment.
(Also prior to Booker being rendered, Orr prepared, pro se, a
supplemental pleading seeking review under Blakely for his role in
the offense, the drug weight, his career offender status, and his
19
statutory sentence enhancement. Orr’s counsel forwarded this to
our court for filing, but without adopting it. Orr does not have
a “constitutional right to hybrid representation”. United States
v. Ogbonna, 184 F.3d 447, 449 n.1 (5th Cir.), cert. denied, 528
U.S. 1055 (1999) (quotation omitted). “By accepting the assistance
of counsel [Orr] waives his right to present pro se briefs on
direct appeal.” Myers v. Johnson, 76 F.3d 1330, 1335 (5th Cir.
1996); see also 5TH CIR. R. 28.7 (“Unless specifically directed by
court order, pro se motions, briefs or correspondence will not be
filed if the party is represented by counsel.”). Therefore, we do
not consider these pro se issues.)
Oral argument was held for this appeal after Booker was
rendered early this year, with supplemental briefs on Booker being
received before argument. Booker held the federal sentencing
guidelines are advisory only. 125 S. Ct. at 757. Following oral
argument, our court decided United States v. Mares, 402 F.3d 511
(5th Cir. 4 March 2005), petition for cert. filed, No. 04-9517
(U.S. 31 A.K. Marsh. 2005), which articulated our understanding of Booker.
As noted, Orr did not raise the below discussed Booker-issues at
trial. Therefore, review is only for plain error. See Mares, 402
F.3d at 520.
In his post-Booker brief, Orr requested: remand for
resentencing because his sentence did not meet Booker’s
20
reasonableness standard; and review of his sentence enhancements.
As discussed, his enhancements were based on prior convictions
which need not be proven to a jury beyond a reasonable doubt. See
Booker, 125 S. Ct. at 756 (citing Apprendi v. New Jersey, 530 U.S.
466, 490 (2000) (“Other than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.”) (emphasis added)). In sum, there was no error,
much less reversible plain error.
N.
Orr maintains the cumulative effect of the claimed errors
warrants a new trial or dismissal of the indictment with prejudice.
Obviously, because Orr’s contentions fail for each issue,
cumulative error analysis is unnecessary. Cf. United States v.
Moye, 951 F.2d 59, 63 n.7 (5th Cir. 1992) (holding “[b]ecause we
find no merit to any of Moye's arguments of error, his claim of
cumulative error must also fail” (emphasis in original)).
III.
For the foregoing reasons, Orr’s conviction and sentence are
AFFIRMED.
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