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United States v. Goodley ( 1999 )


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  •                 IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-50923
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
HILLIARD LEE GOODLEY, III;
ARANDAL DERRICK GOODLEY,
Defendants-Appellants.
--------------------
Appeals from the United States District Court
for the Western District of Texas
USDC No. MO-97-CR-50-4
--------------------
September 23, 1999
Before JOLLY, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Arandal Derrick Goodley (hereinafter “Derrick”) and Hilliard
Lee Goodley, III (hereinafter “Hilliard”), appeal their convictions
and sentences for various drug and money-laundering offenses,
including   conspiracy,   and   for   possession   of   an   unregistered
firearm.2   Derrick argues (1) that a fatal variance existed between
the indictment and the proof at trial, (2) that
*
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this opinion should not be published and is not precedent except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.
2
The motion to withdraw as counsel filed by David Rogers
is GRANTED.
No. 98-50923
-2-
the district court abused its discretion when it admitted the
Government’s organizational chart into evidence, (3) that his
mandatory life sentence under 21 U.S.C. § 841(b)(1)(A) violated his
rights under the Fifth, Sixth, and Eighth Amendments to the U.S.
Constitution, and (4) that his trial was rendered fundamentally
unfair by cumulative trial error.
Derrick’s arguments are unavailing.       Based on the testimony
adduced at trial, a reasonable jury would not have been precluded
from finding a single conspiracy beyond a reasonable doubt.         See
United States v. Morris,
    46 F.3d 410
    , 414-17 (5th Cir.1995).        The
district court did not abuse its discretion in admitting the
Government’s organizational chart into evidence. See United States
v. Brewer, No. 94-60565, slip op. at 8-9 (5th Cir. June 30,
1995)(unpublished; copy attached).3    Even if it could be said that
the admission of the chart was error, it was most assuredly
harmless error given the district court’s limiting instruction at
the outset of the trial, the overwhelming evidence of guilt, and
the fact that the jury acquitted Hilliard Goodley on the drug-
conspiracy count and another codefendant, Carey Goodley, on all
counts.   See United States v. Winn,
    948 F.2d 145
    , 151, 157-59 (5th
Cir. 1991); United States v. Jennings,
    724 F.2d 436
    , 442 (5th Cir.
1984).    Nor   was   Derrick’s   mandatory   life   sentence   under   §
841(b)(1)(A) constitutionally infirm. Derrick has waived his Fifth
Amendment challenge to his sentence by failing to brief it
3
Brewer is precedential because it was decided before
January 1, 1996. See 5th Cir. R. 47.5.3.
No. 98-50923
-3-
adequately.    See United States v. Flores,
    63 F.3d 1342
    , 1374 n.36
(5th Cir. 1995). Derrick’s Eighth Amendment claim is foreclosed by
circuit precedent, see United States v. Fisher,
    22 F.3d 574
    , 579-80
(5th Cir. 1994), and his claim of ineffective assistance of counsel
at sentencing is inappropriate for consideration on direct appeal.
See United States v. Higdon,
    832 F.2d 312
    , 313-14 (5th Cir. 1987).
Finally, Derrick’s trial was not rendered fundamentally unfair by
cumulative trial error. See United States v. Powers,
    168 F.3d 741
    ,
754 (5th Cir. 1999).
Hilliard argues (1) that the district court erred in finding
that he had breached his plea agreement by failing to cooperate
truthfully    and   (2)   that   the    district    court    clearly    erred   in
enhancing his offense level for obstruction of justice. Hilliard’s
arguments are likewise unavailing.           The district court’s finding
that Hilliard failed to provide the Government with truthful
information during his debriefings was plausible in light of the
trial   testimony    of   Freddie      Goodman   and   Patricia   Miller    and,
therefore,    was   not   clearly      erroneous.      See   United    States   v.
Castaneda,
    162 F.3d 832
    , 836 n.24 (5th Cir. 1998); United States v.
Ballis,
    28 F.3d 1399
    , 1409 (5th Cir. 1994).            Moreover, the district
court did not clearly err in enhancing Hilliard’s offense level for
obstruction of justice given the different standards of proof
governing trials and sentencing proceedings.             See
    Powers, 168 F.3d at 752-53
    ; see also United States v. Sotelo,
    97 F.3d 782
    , 799 (5th
No. 98-50923
-4-
Cir. 1996)(stating that credibility determinations at sentencing
are peculiarly within the province of the trier-of-fact).4
MOTION TO WITHDRAW GRANTED.   AFFIRMED.
4
Relying on Fed. R. App. P. 28(i), Hilliard states that he
“adopts by reference all relevant issues presented for review” in
Derrick’s appellate brief. Most, if not all, of the issues
raised in Derrick’s brief involve fact-specific challenges which
are inappropriate for adoption under Rule 28(i). See United
States v. Alix,
    86 F.3d 429
    , 434 n.2 (5th Cir. 1996). The only
issue of Derrick’s which conceivably could be adopted by Hilliard
is the issue pertaining to the admission of the organizational
chart. To the extent that the issue has been properly adopted by
Hilliard, our holding on that issue in regard to Derrick applies
equally to Hilliard. See id.