United States v. Howard , 81 F. App'x 511 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS December 2, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-21355
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSEPH LEE HOWARD; CORDELL HORACE BAUSLEY,
LLOYD BATTLES, also known as Lloyd Richardson,
Defendants-Appellants.
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Appeals from the United States District Court
for the Southern District of Texas
USDC No. H-02-CR-373-2
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Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Joseph Lee Howard, Cordell Horace Bausley, and Lloyd Battles
appeal their convictions and sentences for conspiracy (count one)
and possession with intent to distribute more than 50 grams of
crack cocaine and aiding and abetting (count two). 21 U.S.C.
§§ 841(a)(1), 846; 18 U.S.C. § 2. Howard argues that the
Government offered insufficient evidence of his guilt of the aiding
and abetting portion of count two. However, Howard’s actions and
*
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this opinion should not be published and is not precedent except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.
admissions sufficiently showed that he associated with Bausley and
Battles in a criminal venture involving more than 400 grams of
crack cocaine, that he voluntarily participated in the venture, and
that he sought by his actions to make the venture succeed. See
United States v. Fierro, 38 F.3d 761, 768 (5th Cir. 1994). Thus,
the evidence was sufficient to support Howard’s conviction for
aiding and abetting possession with intent to distribute 50 grams
or more of crack cocaine. See United States v. Mendoza, 226 F.3d
340, 343 (5th Cir. 2000).
Bausley argues that the evidence was insufficient to support
his convictions on both the conspiracy charge and the substantive
charge of possession with intent to distribute. The evidence
showed that Bausley agreed with Howard to participate in the
distribution of more than 50 grams of crack cocaine and that both
parties voluntarily joined and participated in the conspiracy. See
United States v. Garcia Abrego, 141 F.3d 142, 155 (5th Cir. 1998).
The evidence at trial was thus sufficient to support Bausley’s
conspiracy conviction as well as the aiding and abetting portion of
count two. Because co-conspirators may be liable for the
substantive offenses committed by other members of the conspiracy
in furtherance of the common plan, and because Bausely’s sale of
the $20 sample to the Government’s confidential source showed
constructive possession, the evidence was sufficient to support his
conviction for possession with intent to distribute. See United
States v. Lopez, 979 F.2d 1024, 1031 (5th Cir. 1992).
2
Howard and Bausley argue that the district court erred when it
refused to instruct the jury on the issue of entrapment. Neither
Howard nor Bausley has made an adequate showing of either “(1) his
lack of predisposition to commit the offense [or] (2) some
governmental involvement and inducement more substantial than
simply providing an opportunity or facilities to commit the
offense.” See United States v. Gutierrez, 343 F.3d 415, 419 (5th
Cir. 2003)(internal quotation marks and citation omitted). Neither
Bausley nor Howard has presented “substantial evidence that it was
the Government that was responsible for the formation of [their]
intent to join the conspiracy.” United States v. Ogle, 328 F.3d
182, 187-88 (5th Cir. 2003). Thus, there was no basis for the
requested instruction. Id.Howard argues that the district court erred in assessing,
pursuant to U.S.S.G. § 2D1.1(b)(1), a two-level increase in his
sentencing guideline range for possession of a weapon. Special
agents located a total of 12 loaded firearms inside Battles’ house,
where the drug transaction was to occur, as well as two-way radios,
cellular phones, more than $25,000 in cash, surveillance cameras,
and a bullet proof-vest. Also inside the house were 500.1 net
grams of powder cocaine as well as the crack cocaine the defendants
were planning to sell to the confidential source. The weapons were
connected to the drug operation and were foreseeable to Howard
based on his admitted employment by Battles and his presence
outside the house when trying to help complete the transaction.
3
See United States v. Gaytan, 74 F.3d 545, 559 (5th Cir. 1996).
Howard’s argument that he should have received a decrease in
his offense level for his minor or mitigating role is unavailing.
The record contains sufficient evidence to show that Howard was
more than peripheral in the crack cocaine distribution conspiracy.
He admitted he was paid by Battles to find out what the
confidential source wanted, to negotiate a price, and bring the
confidential source to the house. His phone calls with Bausley
also indicate that his involvement was more than peripheral. Thus,
the district court’s finding that Howard was not a minor or minimal
participant was plausible in light of the record as a whole, and it
did not clearly err in refusing a U.S.S.G. § 3B1.2 adjustment. See
United States v. Miranda, 248 F.3d 434, 446-47 (5th Cir. 2001).
Battles’ argument that 21 U.S.C. §§ 841(b) and 846 are
unconstitutional on their face in light of Apprendi v. New Jersey,
530 U.S. 466 (2000), is foreclosed by this court’s opinion in
United States v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000).
AFFIRMED.
4