United States v. Welch , 151 F. App'x 331 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 19, 2005
Charles R. Fulbruge III
Clerk
No. 04-41203
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICKEY LYNN WELCH,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 3:03-CR-12-LED-DDB-1
--------------------
Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Rickey Lynn Welch was found guilty by a jury of counts 4, 2,
and 1 of an indictment charging him with establishment of a place
for the manufacture and distribution of a controlled substance
(count 4), of using, carrying, or possessing a firearm during and
in relation to a drug trafficking crime (count 2), and of
conspiracy to manufacture, distribute or possess with the intent
to manufacture, distribute or dispense methamphetamine (count 1).
Welch was sentenced to concurrent 324-month terms of imprisonment
*
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this opinion should not be published and is not precedent except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. 04-41203
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for counts 1 and 4 and to a consecutive 60-month term of
imprisonment for count 2, for a total term of imprisonment of 384
months. Welch was also ordered to serve concurrent five-year
periods of supervised release. Welch gave timely notice of his
appeal.
Welch contends that the Government violated the rule in
Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose
exculpatory evidence to the defense. Welch’s conclusional
arguments do not demonstrate that favorable evidence was withheld
by the Government or that there is a reasonable probability that
such evidence affected the outcome of the trial. See Kyles v.
Whitley, 514 U.S. 419, 433–34 (1995).
Welch contends that the district court erred by overruling
his motion to suppress evidence disclosed to the defense shortly
before the trial — a videotape of a traffic stop, during which
methamphetamine was discovered on Welch’s person, and a lab
report related to the methamphetamine. Welch contends that the
tardy disclosure prevented him from seeking exclusion of the
evidence and from obtaining expert testimony. The Government
gave a reasonable explanation for failing to timely produce the
videotape and lab report. Welch knew of the prior arrest and was
not prevented from seeking exclusion of the evidence. There is
no reason to believe that an expert would have determined that
the drugs seized were not methamphetamine. No abuse of
discretion has been shown. See United States v. Garrett, 238
No. 04-41203
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F.3d 293, 297–98 (5th Cir. 2000); see also United States v.
Bentley, 875 F.2d 1114, 1118–19 (5th Cir. 1989).
Welch contended in the district court that various lab
reports should have been suppressed as inadmissible hearsay
because the witnesses called to testify about the reports had not
prepared them. Welch has reasserted this question on appeal; he
contends also, for the first time on appeal, that admission of
the lab reports violated his rights under the Confrontation
Clause. We review the constitutional contention for plain error
and the evidentiary question for an abuse of discretion. See
United States v. Vonn, 535 U.S. 55, 58-59 (2002); United States
v. Skipper, 74 F.3d 608, 612 (5th Cir. 1996). Because the lab
reports bore adequate indicia of reliability, Welch has not shown
that the district court plainly erred by admitting the evidence
in violation of his rights under this Confrontation Clause.
See Sherman v. Scott, 62 F.3d 136, 140–42 (5th Cir. 1995). This
court has not determined whether such evidence is admissible
under a recognized exception to the hearsay rule.** See Sherman,
62 F.3d at 141 (declining to reach issue). We need not reach
these issues because admission of the evidence did not affect
Welch’s substantial rights. See id. at 142 n.6.
**
It is arguable whether the evidence was admissible under
the public-records or business-records exceptions to the hearsay
rule. See United States v. Quezada, 754 F.2d 1190, 1194 (5th
Cir. 1985); United States v. Cain, 615 F.2d 380, 382 (5th Cir.
1980).
No. 04-41203
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Welch contends that the evidence as to the conspiracy and
firearms counts was insufficient to prove his guilt beyond a
reasonable doubt. Because Welch failed to renew his objection to
the denial of his motion for a judgment of acquittal after the
defense rested and because no motion was asserted under FED.
R. CRIM. P. 29(c), our review is limited to a determination
whether there was a manifest miscarriage of justice, which will
be found to exist only if the record is devoid of evidence
pointing to guilt. See United States v. Robles-Pantoja, 887 F.2d
1250, 1254 (5th Cir. 1989). The record is not “devoid of
evidence” showing that Welch participated in a conspiracy to
manufacture, distribute or possess with the intent to
manufacture, distribute or dispense methamphetamine, in violation
of sections 846 and 841(a)(1). See id. Nor is the record
“devoid of evidence” showing that Welch possessed firearms in
furtherance of the drug conspiracy. See id.
Welch contends that the district court erred in determining
the drug quantity at sentencing and that his sentence was
determined unconstitutionally in light of Blakely v. Washington,
542 U.S. 296 (2004). In the interim since the case was briefed,
the Supreme Court extended its holding in Blakely to the federal
sentencing guidelines. See United States v. Booker, 125 S. Ct.
738, 769 (2005). Where, as here, a Booker error has been
preserved in the district court, this court “will ordinarily
vacate the sentence and remand, unless [this court] can say the
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error is harmless under Rule 52(a) of the Federal Rules of
Criminal Procedure.” United States v. Pineiro, 410 F.3d 282, 284
(5th Cir. 2005) (quotation marks omitted). The Government
concedes that remand is appropriate in this case as it cannot
show beyond a reasonable doubt that the district court would not
have imposed a lesser sentence if it had known that the
guidelines are discretionary. The convictions are AFFIRMED. The
sentence is VACATED AND REMANDED for further proceeding in light
of Booker. See id. at 284–85. Welch’s other arguments of
sentencing errors are not discussed. See United States v. Akpan,
407 F.3d 360, 377 n.62 (5th Cir. 2005).
AFFIRMED IN PART; VACATED AND REMANDED IN PART.