United States v. Michael Wallace , 759 F.3d 486 ( 2014 )

Case: 12-51192 Document: 00512703629 Page: 1 Date Filed: 07/18/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 12-51192 FILED
July 18, 2014
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee,
v.
MICHAEL ERIC WALLACE; DEREK LEE BLOCKER,
Defendants-Appellants.
Appeals from the United States District Court
for the Western District of Texas
Before STEWART, Chief Judge, and HIGGINBOTHAM and ELROD, Circuit
Judges.
CARL E. STEWART, Chief Judge:
A jury found Michael Eric Wallace (“Wallace”) and Derek Lee Blocker
(“Blocker”) (collectively “Appellants”) guilty on all counts of an indictment
charging them with conspiracy to possess with intent to distribute 500 or more
grams of methamphetamine (“meth”) pursuant to 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A), and 846. Appellants were also convicted, on separate counts, of
distributing smaller quantities of meth in violation of § 841(a)(1). The district
court sentenced Appellants to 240 months’ imprisonment—the mandatory
minimum sentence resulting from Appellants having been previously
convicted of a drug-related felony. Appellants filed timely appeals challenging
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the jury’s verdict and the district court’s rulings. For the reasons explained
herein, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
At trial, the government argued that Appellants’ drug activities in
Midland, Texas and the Arlington/Dallas-Fort Worth, Texas area were part of
one scheme that involved various individuals who conspired to distribute 500
or more grams of meth between July 2010 and July 2012. For purposes of this
opinion, we refer to Appellants’ narcotics activities in Arlington/Dallas-Fort
Worth, Texas as the “DFW Transactions.” We refer to their narcotics activities
in Midland, Texas as the “Midland Transactions.”
The DFW Transactions
The evidence showed that in early 2010, Wallace met a meth user named
Dustin Harris (“Harris”) in Arlington, Texas. Harris was in search of “better
meth” and Wallace told Harris that he could help him acquire it. Harris
testified at trial and explained that in July 2010, Wallace connected him with
Amy Middleton (“Middleton”) for the purpose of purchasing higher quality
meth. During the first meeting between Wallace, Harris, and Middleton,
Harris gave Wallace money; Wallace and Middleton left Harris’s presence;
then they returned and provided Harris with one ounce of meth. Harris
testified that he met Wallace in DFW a second time and again provided
Wallace with money to purchase meth on his behalf. This transaction took
place at Middleton’s house and Middleton’s supplier, Keith Bradford
(“Bradford”) was present. That day, Harris provided Wallace with money and
Wallace went upstairs with Middleton and Bradford. When Wallace returned,
he provided Harris with four ounces of meth.
Harris and Wallace returned to DFW approximately twice a week to
make similar purchases from August or September 2010 through mid-
November 2010. Harris testified that he usually purchased two or more ounces
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of meth during his and Wallace’s recurring trips to DFW. Eventually, Harris
established rapport with Middleton and Bradford such that he was able to
purchase meth from them without Wallace’s presence or assistance. However,
Wallace would “chip in money from time to time, up to $500.00 to help buy
what [they] needed.” Harris testified that he was arrested in November 2010
and pleaded guilty to a drug conspiracy. As part of his guilty plea, Harris
admitted to conspiring to distribute approximately 2.4 kilograms of meth
between July 2010 and November 2010.
The government also called Middleton as a witness at trial. Middleton
testified that she connected Wallace with Bradford to facilitate meth deals. In
return for a successful transaction, Middleton often received money or drugs
from Bradford. Bradford also testified during the government’s case-in-chief.
Bradford stated that when he sold meth to Harris and/or Wallace, they always
purchased at least an ounce. Bradford also pleaded guilty to conspiring to
distribute 2.4 kilograms of meth. Wallace’s former girlfriend, Christina
Masdon, testified at Appellants’ trial as well. She explained, inter alia, that
she traveled to DFW with Wallace in March 2011 and during that trip, Wallace
purchased “pink meth.” 1
Midland Police Department narcotics detective Robby Mobley
(“Detective Mobley”) also testified during the government’s case-in-chief.
Detective Mobley explained that during his investigation, he recovered data
from the GPS in Wallace’s vehicle and it showed that Wallace frequently
visited the DFW area. During an interview with Detective Mobley, Wallace
admitted to traveling to DFW to purchase meth but claimed that it “was just
1 As explained more fully below, this fact is important because Blocker sold pink meth
to a law enforcement cooperator in Midland during a controlled purchase shortly after
Wallace’s trip to DFW in March 2011. Pink meth was also in Blocker’s possession at the time
of his arrest in March 2011.
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for personal use.” Wallace also indicated that Blocker “made one trip with
him” when he traveled to DFW to purchase meth. When asked whom he
purchased meth from in DFW, Wallace listed, inter alia, Middleton and
Bradford.
The Midland Transactions
In August 2010, Detective Mobley was investigating a suspected drug
dealer named Shawn Cook (“Cook”) and learned that Wallace may have been
associated with Cook in the Midland, Texas drug trade. In early 2011,
Detective Mobley received information regarding drug activity in an
apartment in Midland and Wallace’s name resurfaced. The individuals who
occupied the apartment were Brad Beshears (“Beshears”) and Tracy Scott
(“Scott”) (collectively “cooperators”). At trial, Detective Mobley described
Beshears and Scott as “lower level individuals” in the suspected drug operation
and explained how he secured their cooperation in his investigation into their
suppliers. At Detective Mobley’s direction, the cooperators participated in
controlled purchases that involved purchasing meth while under law
enforcement surveillance. Law enforcement officers recorded phone calls
between the cooperators and Appellants during which the cooperators
requested narcotics for purchase. The first call relevant to this case was placed
on February 4, 2011 and led to a transaction on February 5, 2011 where
Beshears met with Wallace and purchased 3.6 grams of meth.
The next controlled purchase took place on February 27, 2011. Detective
Mobley facilitated the February 27, 2011 transaction by repeating the same
process he used to facilitate the February 5, 2011 transaction. He instructed
Scott to call the same phone number Beshears called on February 4, but this
time Blocker answered the phone instead of Wallace. Shortly thereafter, Scott
met with Blocker and purchased 3.6 grams of meth. Detective Mobley executed
two more controlled purchases between the cooperators and Blocker that
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occurred on February 28, 2011 and March 8, 2011. The February 28, 2011
purchase involved 2.6 grams of meth and the March 8, 2011 purchase involved
7 grams of meth. The meth acquired during the March 8, 2011 controlled
purchase was pink.
In order to support its theory that Wallace and Blocker worked together
to distribute meth, the government established that the cooperators regularly
purchased meth from Appellants for several months. The cooperators
explained that when they called Wallace to purchase meth, Blocker would
sometimes deliver it. They also testified that on at least several occasions,
Blocker used Wallace’s vehicle to deliver meth.
Midland police arrested Blocker on March 9, 2011. At the time of his
arrest, the police found 3.2 grams of meth—some of which was pink—in
Blocker’s car along with a pipe, several cell phones, a camera, and digital
scales. One of the cell phones recovered was the one Appellants used to
communicate with the cooperators before each of the controlled purchases.
Wallace was also arrested on March 9, 2011. Detective Mobley took possession
of the cell phone that was on Wallace’s person at the time of his arrest. On
April 26, 2011, Detective Mobley obtained an additional cell phone that
belonged to Wallace. Detective Mobley analyzed the text messages and
photographs from all of the phones he obtained from Appellants. Certain text
messages and photographs were presented at trial to demonstrate the pattern
and substance of communications between Wallace, Blocker, and other
individuals involved in the meth distribution conspiracy.
Defense Case and Jury Verdict
After the government rested its case, Appellants moved for judgments of
acquittal and the district court denied their motions. Wallace then called
several witnesses and testified on his own behalf. Wallace explained that he
was a meth addict and that prior to his arrest in this case, he used meth on a
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daily basis. He also admitted that he distributed small amounts of meth in
order to earn money to support his habit. He denied, however, involvement in
any conspiracy to distribute meth and explained that his interaction with
Blocker was purely a matter of friendship. Wallace explained that he allowed
Blocker to use his cell phone because Blocker was homeless and did not have
his own means of communication. Wallace also explained that he allowed
Blocker to use his vehicle for similar reasons and claimed that he was unaware
of what Blocker did or where Blocker went when he borrowed the vehicle. On
cross-examination, Wallace admitted that he distributed meth to Beshears.
When asked whether he was guilty of count two (distributing meth on
February 5, 2011), he responded “yes, I could be.” Blocker did not testify at
trial.
The jury found Appellants guilty on all counts and the district court
sentenced them to 240 months’ incarceration followed by ten years’ supervised
release.
II. DISCUSSION
A.
At trial, Appellants challenged the sufficiency of the government’s
evidence with respect to the allegation that they conspired to possess with
intent to distribute 500 or more grams of meth. Appellants lodge the same
challenge on appeal. Because Appellants preserved the issue below, we engage
in a de novo review to “determine whether a reasonable jury could find that
the evidence establishes the guilt of the defendant[s] beyond a reasonable
doubt.” United States v. Williams, 507 F.3d 905, 908 (5th Cir. 2007). We view
the evidence presented at trial in the light most favorable to the government
and all reasonable inferences and credibility determinations will be resolved
in the government’s favor. Id.
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In order to establish a conspiracy to possess with intent to distribute a
controlled substance, the government must prove beyond a reasonable doubt:
(1) that there was an agreement between two or more people to violate
narcotics laws; (2) that the defendants knew about the agreement; and (3) that
the defendants voluntarily participated in the conspiracy. United States v.
Valdez, 453 F.3d 252, 256–57 (5th Cir. 2006). “The agreement may be tacit,
and the jury may infer its existence from circumstantial evidence.” United
States v. Booker, 334 F.3d 406, 409 (5th Cir. 2003) (internal quotation marks
omitted).
“To be convicted of engaging in a criminal conspiracy, an individual need
not know all the details of the unlawful enterprise or know the exact number
or identity of all the co-conspirators, so long as he knowingly participates in
some fashion in the larger objectives of the conspiracy.” Id. at 411 (internal
quotation marks omitted). The “defendant[s] may be convicted on the
uncorroborated testimony of a coconspirator who has accepted a plea bargain
unless the coconspirator’s testimony is incredible.” Valdez, 453 F.3d at 257
(internal quotation marks omitted).
Appellants assert a “variance-based” challenge to their conspiracy
convictions. To prevail on a variance claim, a defendant “must prove (1) a
variance between the indictment and the proof at trial, and (2) that the
variance affected [his] substantial rights.” United States v. Morgan, 117 F.3d
849, 858 (5th Cir. 1997). “The principal considerations in counting the number
of conspiracies proven are (1) the existence of a common goal, (2) the nature of
the scheme and (3) overlapping of participants in the various dealings.” Id.
(internal quotation marks omitted). We affirm a jury’s finding that a single
conspiracy existed unless, viewing the evidence in the light most favorable to
the government, reasonable jurors could not make such a finding beyond a
reasonable doubt. Id.
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We conclude that based on the evidence presented at trial, a reasonable
jury could find that Appellants engaged in a conspiracy to possess with the
intent to distribute over 500 grams of meth. The evidence showed that Wallace
facilitated and participated in numerous meth transactions in DFW. Harris
testified that the first transaction he participated in with Wallace resulted in
the sale of one ounce (approximately 28 grams) of meth. The next transaction
was similar, systematically, but instead of purchasing one ounce, Harris
purchased four ounces (approximately 112 grams). Harris testified that
subsequent to the initial purchase, he and Wallace traveled to DFW between
two and five times per week in August and September and purchased at least
two ounces (approximately 56 grams) of meth each trip. Based upon witnesses’
testimony that Wallace facilitated the distribution of at least four ounces
(approximately 112 grams) of meth per week, for eight weeks, a reasonable
jury could conclude that he participated in the distribution of at least 32 ounces
(736 grams) of meth during the time period alleged in the indictment.
Moreover, reasonable jurors could conclude that Blocker conspired with
Wallace and others to acquire meth in DFW and distribute it in Midland. The
evidence presented at trial showed that during Wallace’s trip to DFW in early
March 2011, he acquired pink meth. Blocker distributed pink meth to law
enforcement cooperators on March 8, 2011 and pink meth was found in his
possession when he was arrested on March 9, 2011. The jury could reasonably
infer that the pink meth Wallace acquired in DFW was the same pink meth
Blocker distributed in Midland. It is well established that, for purposes of
coconspirator culpability, members of a conspiracy need not be aware of the
existence or activities of other members. See Booker, 334 F.3d at 411.
Therefore, Blocker’s knowledge of or participation in every aspect of the DFW
Transactions is not dispositive with respect to whether a reasonable jury could
find him guilty of the charged conspiracy.
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Contrary to Blocker’s assertions on appeal, a reasonable jury could
certainly conclude that Blocker worked closely with Wallace to distribute the
meth Wallace acquired in DFW. The cooperators testified that on multiple
instances, when they called Wallace in an attempt to purchase meth, Blocker
was the person who delivered it. They testified that occasionally, Blocker used
Wallace’s truck to deliver meth. The cooperators also testified about how they
used the same cell phone number to reach both Wallace and Blocker to procure
narcotics. Additionally, Wallace believed that Blocker had enough information
pertaining to his criminal activity to provide damaging information to law
enforcement. For example, after Appellants were arrested, law enforcement
recorded a conversation between Wallace and Beshears during which Wallace
specifically stated that “Derek won’t snitch on me.” A reasonable jury could
glean from that statement that Blocker was familiar with, and likely a
participant in, Wallace’s illegal narcotics activities.
Furthermore, to the extent that Appellants argue that the evidence
presented at trial varied from the indictment, we are unpersuaded. Here, the
indictment alleged that between July 2010 and July 2012, Appellants
conspired with each other and others known and unknown to the grand jury to
distribute 500 or more grams of meth. The evidence presented at trial directly
pertained to activity between July 2010 and July 2012—as alleged in the
indictment. Because the evidence presented at trial remained at all times
within the scope of the allegations in the indictment, Appellants’ variance
argument fails. See United States v. Franklin, 148 F.3d 451, 459 (5th Cir.
1998).
Considering all of the evidence presented at trial, we conclude that a
reasonable jury could find that Appellants were guilty of the charged
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conspiracy and affirm Appellants’ convictions as to count one of the
indictment. 2
B.
Prior to trial, the government provided notice of its intent to introduce
evidence, pursuant to Federal Rule of Evidence 404(b), that Wallace was
previously convicted in state court of possessing 1–4 grams of a controlled
substance. Similarly, the government provided notice of its intent to introduce
evidence that Blocker was previously convicted in state court of manufacturing
400 grams of meth. Appellants objected to the admission of the evidence but
the district court overruled their objections. The district court allowed the
evidence for the purpose of showing knowledge, intent, and absence of mistake.
The district court also provided a limiting instruction explaining that the jury
was not permitted to consider the evidence for the purpose of deciding whether
Appellants committed the acts charged in the indictment.
In light of the district court’s ruling, the government called as a witness
Jay Stubbs, a police officer in Johnson County, Texas. Stubbs testified that he
was called to the scene of a narcotics bust in July 2004 where officers
discovered a meth lab inside of a residence. Wallace and Blocker were both
present at the lab and officers recovered Pyrex dishes, flasks, stirring mantles,
funnels, and other instrumentalities of a meth lab. Stubbs testified that
Appellants both lived at the house and were arrested that day. Stubbs also
told the jury that Appellants were charged with “manufacture and delivery of
over 400 grams” of meth. The government later read into evidence that in
relation to that incident, Wallace was convicted of “possession of 1 to 4 grams”
2 To the extent that Blocker challenges the PSR’s recommendation and the district
court’s finding that—for sentencing purposes—he was accountable for 1.7 kilograms of meth,
we need not address his argument. As explained in greater detail infra, Blocker’s conspiracy
conviction under count one, coupled with his prior felony conviction, triggered a mandatory
minimum sentence of twenty years’ imprisonment.
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of meth and Blocker was convicted of “manufacture of over 400 grams” of meth.
Appellants argue on appeal that the district court erred by allowing the
government to introduce evidence of this prior bad act.
A district court’s decision to admit Federal Rule of Evidence 404(b)
evidence in a criminal case is reviewed under a heightened abuse of discretion
standard subject to a harmless error analysis. United States v. Mitchell, 484
F.3d 762, 774 (5th Cir. 2007). Prior bad acts are generally inadmissible but
may be admitted “as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.” See id. (quoting Fed.
R. Evid. 404(b). In order to determine whether a prior bad act is admissible,
this court performs a two-part test that queries: (1) “whether the extrinsic
offense evidence is relevant to an issue other than the defendant’s character”;
and (2) whether the probative value of the evidence is substantially outweighed
by undue prejudice. See id. (internal quotation marks omitted). This court has
held that the probative value of evidence related to a defendant’s prior drug-
related activity is not substantially outweighed by unfair prejudice in a drug
conspiracy case. See Booker, 334 F.3d at 411–12 (holding that evidence of the
defendant’s prior possession of 178 kilograms of marijuana was not unfairly
prejudicial where the defendant was charged with conspiracy to distribute
cocaine base).
Wallace argues that “[t]he district court abused its discretion by allowing
the government to introduce this evidence at trial because Wallace and
Blocker’s charge[s] and Wallace’s subsequent conviction for possession of a
controlled substance were not relevant to prove either knowledge or intent in
a distribution or conspiracy to distribute trial.” Wallace asserts that because
his prior conviction was for possession of a controlled substance, evidence
related to that conviction does not demonstrate his knowledge or intent with
respect to the charged offenses—conspiracy to distribute and distribution. In
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like fashion, Blocker argues that his prior conviction should not have been
admitted because it could only demonstrate an intent to manufacture and not
an intent to distribute. Blocker also argues that the seven-year difference
between his prior conviction and the charged conspiracy caused the prior
conviction to lack any probative value.
In response, the government argues that the prior convictions were
properly admitted because they were necessary to prove that “Wallace and
Blocker knew each other as more than friends,” and were familiar with each
other’s involvement in the meth business. According to the government, the
fact that the intent element in a manufacturing conviction or a possession
conviction is different from the intent element in a conspiracy case is
inconsequential. To support its position, the government relies on United
States v. Gadison which held that “[a] prior conviction for possession of cocaine
is probative of a defendant’s intent when the charge is conspiracy to
distribute.” 8 F.3d 186, 192 (5th Cir. 1993).
We agree with the government’s position that Gadison controls this
issue. A prior conviction for narcotics possession or manufacture is probative
to a defendant’s intent when he is charged with conspiracy to distribute. Id.
By pleading not guilty, Appellants placed their knowledge and intent at issue
and the prior convictions were probative of Appellants’ familiarity with each
other’s involvement in the narcotics industry. See Gadison, 8 F.3d at 192
(“[The defendant] put his intent at issue when he entered his plea of not guilty
to the conspiracy charge in the indictment.”); United States v. Harris, 932 F.2d
1529, 1534 (5th Cir. 1991) (holding that “evidence of a pre-existing relationship
between parties is relevant in determining whether they were engaged in a
conspiracy”). We note, however, that our holding today does not render all
prior narcotics convictions per se admissible in a drug conspiracy case. The
government continues to maintain the burden of demonstrating—in every
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case—that a prior conviction is relevant and admissible under 404(b). See
United States v. Yeagin, 927 F.2d 798, 803 (5th Cir. 1991) (“A trial judge faced
with the problem of admissibility of other crimes evidence should exercise
caution and should require the government to explain why the evidence is
relevant and necessary on a specific element that the government must
prove.”).
To the extent that Blocker argues that his prior conviction was too
remote in time to be probative to the charged conspiracy, remoteness may
weaken a conviction’s probative value, but remoteness has never been held to
be a per se bar to the admission of a prior conviction. See United States v.
Hernandez-Guevara, 162 F.3d 863, 872 (5th Cir. 1998) (“The age of a prior
conviction has never been held to be a per se bar to its use under Rule 404.”);
United States v. Cockrell, 587 F.3d 674, 680 (5th Cir. 2009) (“Although
remoteness of the extrinsic acts evidence may weaken its probative value, the
age of the prior conviction does not bar its use under Rule 404.” (internal
quotation marks omitted)); United States v. Broussard, 80 F.3d 1025, 1040 (5th
Cir. 1996) (finding no prejudice from the admission of a prior conviction that
occurred more than ten years before the charged offense); see also United States
v. Chavez, 119 F.3d 342, 347 (5th Cir. 1997) (per curiam) (holding that the
district court did not abuse its discretion in admitting evidence of a 15–year–
old conviction). Finally, it is important to note that any unfair prejudice was
assuaged by the district court’s limiting instruction regarding Appellants’ prior
convictions. See Booker, 334 F.3d at 412.
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Accordingly, we conclude that the district court did not abuse its
discretion by allowing the government to present evidence of Appellants’ prior
bad act. 3
C.
Prior to trial, the government filed an “Enhancement Information”
notifying Wallace that a conviction under Count One would result in a
mandatory minimum sentence of twenty years’ imprisonment because he was
previously convicted of “Manufacture/Delivery of a Controlled Substance.” The
government’s Enhancement Information was incorrect, however, because
Wallace was actually convicted of “Possession of a Controlled Substance, 1–4
grams.” Wallace argues on appeal, essentially, that the government’s
inaccurate Enhancement Information did not properly notify him of the offense
for which the government intended to seek an enhancement. Therefore,
according to Wallace, his due process rights were violated when the district
court sentenced him based upon the enhancement.
“The sufficiency of a [21 U.S.C.] § 851(a) information is a question of law;
therefore, we review the adequacy of the [g]overnment’s compliance with
§ 851(a) de novo.” United States v. Steen, 55 F.3d 1022, 1025 (5th Cir. 1995).
Section 851(a)(1) requires that the United States Attorney file a “Notice and
Information of Prior Conviction” 4 with the court before trial in order to seek
3 Wallace also argues that other information related to this prior bad act—namely
the fact that he was arrested and charged with manufacturing/delivering meth—should not
have been admitted at trial. The government’s evidence against Wallace was sufficiently
overwhelming that any improper reference to his prior arrest or charge would have little
impact on the jury’s verdict. See United States v. Quintero, 872 F.2d 107, 113 (5th Cir. 1989).
Accordingly, we decline to decide whether the district court erred in allowing this evidence
because any alleged error does not warrant reversal. See United States v. Williams, 957 F.2d
1238, 1242 (5th Cir. 1992) (“[U]nless there is a reasonable possibility that the improperly
admitted evidence contributed to the conviction, reversal is not required.”) (internal
quotation marks omitted) (alteration in original)).
4 In this case, the government titled its “Notice and Information of Prior Conviction”
as an “Enhancement Information.”
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potential sentence enhancements based upon prior convictions. See United
States v. Arnold, 467 F.3d 880, 886 (5th Cir. 2006). “The information must list
the previous convictions to be relied upon and the statute also provides that
‘[c]lerical mistakes in the information may be amended at any time prior to the
pronouncement of sentence.’” Id. (citing § 851(a) (alteration in original)). If
the government does not comply with the statute’s procedural requirements,
the district court cannot enhance the defendant’s sentence. Id. The purpose
of the information is to “provide defendants with the notice necessary to allow
them to challenge the contents of the . . . information.” Steen, 55 F.3d at 1026.
However, this court “will not reverse for minor deficiencies which do not
prejudice the accused.” Id. at 1027 (internal quotation marks omitted).
Relying on Steen, the government argues that we should focus not on
whether its filing contained misinformation, but rather on whether the
misinformation actually misled Wallace. The government asserts that Wallace
was fully aware of the prior drug felony at issue because the contents of the
government’s Enhancement Information were generally accurate. The
government notes that its Enhancement Information included the correct date,
cause number, and jurisdiction of Wallace’s prior felony drug possession
conviction. The government also emphasizes that Wallace signed a stipulation
at trial “that he was in fact convicted of the same possession of a controlled
substance offense.” Therefore, according to the government, there is no
indication that Wallace was ever misled about the government’s intent to seek
an enhancement based upon his prior felony drug conviction such that he could
not meaningfully challenge it. We agree.
Steen provides useful guidance on this issue. In that case, the
government’s Enhancement Information incorrectly described Steen’s prior
conviction as one for delivery of cocaine when it was actually for possession of
cocaine. Id. at 1025. This court held that the government’s misstatement was
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not fatal because Steen challenged the admissibility of the prior conviction in
its proper format by way of a pretrial motion. Id. at 1028. By doing so, Steen
demonstrated that he was aware of the prior conviction at issue and was not
prejudiced by the government’s clerical error. Id. at 1028.
Here, despite the government’s misstatement in its Enhancement
Information, the government correctly characterized Wallace’s prior conviction
on several other occasions. For example, the district court heard arguments
on pretrial motions during which the parties wrangled over the admissibility
of Appellants’ prior convictions. During the government’s discussion of the
prior conviction at issue, the prosecutor stated that “Mr. Wallace . . . was
successful in getting it pled down to possession of meth, 1 to 4 grams.” 5
Much like the situation in Steen, Wallace’s counsel’s arguments at trial
demonstrate his awareness of the correct characterization of Wallace’s prior
conviction. We made clear in Steen that the purpose of § 851’s notice
requirement is to provide the defendant with an opportunity to challenge the
contents of the Enhancement Information. Id. at 1026. As illustrated by his
counsel’s arguments throughout the proceedings below, Wallace was on notice
that his March 9, 2007 conviction was for possession of 1 to 4 grams of meth.
Wallace’s briefing fails to sufficiently explain how he was prejudiced by the
government’s error. Therefore, we conclude that his challenge to the
5Additionally, during arguments regarding the admissibility of testimony related to
the 2004 incident involving the meth lab, Wallace’s counsel argued: “And I would just add,
Your Honor, it’s somewhat misleading and, again, unfairly prejudicial to Mr. Wallace,
because he pled. And I know it was a lesser included, but he pled to a possession count of 1
to 4 grams . . . .” Additionally, during Jay Stubbs’s testimony, the government asked Stubbs
whether Wallace pleaded guilty to “a possession count” and Stubbs responded: “[Y]es, sir.”
Moreover, the parties stipulated to the fact that “[o]n or about March 9, 2007, . . .Wallace
was “convicted of possession of 1 to 4 grams of methamphetamine, for the offense occurring
on July 30, 2004.”
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government’s notice and ultimately to the district court’s application of the
sentencing enhancement is without merit.
D.
Appellants argue on appeal that, for the purpose of applying the § 851
sentencing enhancement, the question of whether they had been convicted of
prior drug felonies should have been submitted to the jury. Because Appellants
failed to raise this issue before the district court, we review only for plain error.
United States v. Echeverria-Gomez, 627 F.3d 971, 973 (5th Cir. 2010) (per
curiam). Under that standard, this court will reverse an error that “is plain,
affects the defendant’s substantial rights, and seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id.
In 2013, the Supreme Court held that any fact that increases a
defendant’s mandatory minimum sentence must be presented to a jury and
found beyond a reasonable doubt. Alleyne v. United States, 133 S. Ct. 2151,
2158 (2013). Prior to Alleyne, the Supreme Court stated in Almendarez-Torres
v. United States that for the purposes of sentencing enhancements, a prior
conviction is not a fact that must be alleged in an indictment or found by a jury
beyond a reasonable doubt. 523 U.S. 224, 239–47 (1998). Appellants argue
that Alleyne overruled Almendarez-Torres because Alleyne requires that any
fact that increases a mandatory minimum sentence be presented to a jury. We
disagree.
We conclude that Appellants’ claims are foreclosed by Supreme Court
and Fifth Circuit precedent. To avoid potential uncertainty as to whether
Alleyne overruled Almendarez-Torres, the Supreme Court explained in a
footnote that its holding in Alleyne did not disturb the narrow Almandarez–
Torres exception. See id. at 2160 n.1. We recently acknowledged that the
Almandarez–Torres exception survived Alleyne. United States v. Akins, 746
F.3d 590, 611 (5th Cir. 2014). The panel in Akins stated that “[i]t is well
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established that ‘[o]ther 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.’” Id.
(quoting Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (emphasis added
and second alteration in original)). 6
Therefore, the district court did not commit plain error by finding that
Appellants were previously convicted of drug felonies or by sentencing them
accordingly.
E.
Blocker raises, for the first time on appeal, an ineffective assistance of
counsel claim based upon “several grievous errors” committed by his trial
counsel. Blocker argues that his appeal “presents the paradigmatic example”
of the type of case where an ineffective assistance of counsel claim is cognizable
on direct appeal. 7 The general rule in the Fifth Circuit is that ineffective
assistance of counsel claims cannot be resolved on direct appeal if they were
not raised before the district court. United States v. Isgar, 739 F.3d 829, 841
(5th Cir. 2014). This rule is based upon the notion that typically at this stage,
the record is not sufficiently developed to allow this court to meaningfully
6 Several sister circuits have also acknowledged that Alleyne did not overrule
Almendarez-Torres. See United States v. Harris, 741 F.3d 1245, 1249 (11th Cir. 2014); United
States v. McDowell, 745 F.3d 115, 123–24 (4th Cir. 2014); United States v. Cooper, 739 F.3d
873, 884 (6th Cir. 2014); United States v. Boyce, 742 F.3d 792, 799 (7th Cir. 2014); United
States v. Blair, 734 F.3d 218, 226–28 (3d Cir. 2013); United States v. Carrigan, 724 F.3d 39,
51 n.4 (1st Cir. 2013); United States v. Rucker, 545 F. App’x 567, 573 (8th Cir. 2013) (per
curiam) (unpublished).
7 More specifically, Blocker argues that his attorney should have objected to Officer
Jay Stubbs and Detective Mobley’s testimony that Blocker was arrested for a parole violation.
He also claims that his attorney should have objected to Detective Mobley’s testimony
regarding Wallace’s post-arrest statement during which Wallace arguably implicated
Blocker. Blocker claims that this resulted in a Bruton violation. See Bruton v. United States,
391 U.S. 123, 136–37 (1968). Blocker also asserts that his attorney should have requested a
jury instruction on “multiple conspiracies.”
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No. 12-51192
assess the merits of the defendant’s allegations. See United States v. Pierce,
959 F.2d 1297, 1301 (5th Cir. 1992). A case falls within the parameters of the
general rule when the record does not reveal the reasons for trial counsel’s
decisions or shed light on alternative strategies that could have been employed
below. See United States v. Garcia, 567 F.3d 721, 729 (5th Cir. 2009).
However, this court recognizes that in some instances, an adequate record
exists to evaluate the claims. Id.; see also United States v. Haese, 162 F.3d 359,
363 (5th Cir. 1998) (holding that the court of appeals could determine the
validity of the defendant’s claims because the district court had held an
evidentiary hearing on the same claims); United States v. Thomas, 174 F.3d
197, *1 (5th Cir. 1999) (per curiam) (unpublished) (same). Nevertheless, we
very rarely reach the merits of an ineffective assistance of counsel claim on
direct appeal. 8
We see no reason to depart, in this case, from the general rule that
ineffective assistance of counsel claims are not reviewable on direct appeal
unless the issues were presented to the district court. See Isgar, 739 F.3d at
841. Here, none of Blocker’s claims were presented to the district court and
there is nothing in the record that sheds light on his trial counsel’s reasons for
making the challenged decisions. Accordingly, we decline to address the merits
of Blocker’s ineffective assistance of counsel claims.
III. CONCLUSION
For the foregoing reasons, we affirm Appellants’ convictions and
sentences.
8 See, e.g., United States v. Montes, 602 F.3d 381, 387–88 (5th Cir. 2010) (holding that
the defendant’s Strickland claim was premature because the record was not sufficiently
developed to evaluate the claim); United States v. Gulley, 526 F.3d 809, 821 (5th Cir. 2008)
(per curiam) (deciding that the defendant’s claim was not “ripe for review” because the record
was not sufficiently developed to allow the court to fairly evaluate the merits of the claim).
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