United States v. Dupre ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 7, 2007
No. 05-30376
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
HIKING DUPRE
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:04-CR-28
Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Hiking Dupre, proceeding pro se, appeals his 2004 convictions and
sentences for possession with intent to distribute cocaine base within 1000 feet
of a public playground, carrying and using a firearm in relation to a drug
trafficking offense, and being a felon in possession of a firearm.
Dupre argues that the district court abused its discretion by allowing the
introduction of unfairly prejudicial evidence, such as a black shirt and a ski
mask, seized from a vehicle at the time of his arrest. This ski mask and shirt
*
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should not be published and is not precedent except under the limited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.
No. 05-30376
were briefly discussed at trial but were never introduced as actual exhibits or
shown to the jury. The district court correctly found that the defense opened the
door to a discussion of such evidence by arguing that the police had found the
gun and drugs in a nearby vehicle rather than on Dupre’s person. The defense
opened the door further by questioning a police officer about apparent
discrepancies between his testimony and a property receipt that listed the items
seized. Finally, we note that this property receipt, which listed the ski mask and
shirt, was introduced as an exhibit by the defense rather than the Government.
Given these facts, the district court did not abuse its discretion in allowing brief
mention of these items. See United States v. Maldonado, 472 F.3d 388, 398 (5th
Cir. 2006); United States v. Wilson, 355 F.3d 358, 361 (5th Cir. 2003).
Dupre also argues that his sentence was improperly enhanced under 21
U.S.C. § 841; he asserts that the Government failed to comply with 21 U.S.C.
§ 851 by not serving either himself or defense counsel with notice that the
Government would seek to enhance his sentence on the basis of his prior
convictions. Although a § 841 enhancement on the basis of prior convictions was
extensively discussed, the statutory sentencing ranges discussed at sentencing
are the penalties applicable to his conviction under 21 U.S.C. § 860 (possession
with intent to distribute cocaine base within 1000 feet of a public playground).
See United States v. Chandler, 125 F.3d 892, 896 (5th Cir. 1997). Because
Dupre’s sentence was not enhanced under § 841 on the basis of his prior
convictions, any non-compliance with § 851 is harmless. See FED. R. CRIM.
P. 52(a).
AFFIRMED.
2