United States v. Slaughter

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-11142
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES SLAUGHTER, also known as James Bernard Salone,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:99-CR-10-1-C
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August 10, 2000
Before DAVIS, JONES, and DeMOSS, Circuit Judges.
PER CURIAM:*
James Slaughter appeals his jury convictions and the
sentences imposed for conspiracy to distribute and possess with
intent to distribute cocaine base in violation of 21 U.S.C.
§ 842; distribution and possession of cocaine base within 1,000
feet of a playground in violation of 21 U.S.C. §§ 841(a)(1) and
860(a) and 18 U.S.C. § 2; and two counts of distribution of
cocaine base in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B),
(b)(1)(C), and 18 U.S.C. § 2. Slaughter argues that the court
reporter’s failure to transcribe the jury instructions violates
*
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that this opinion should not be published and is not precedent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.
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the Court Reporter Act, 28 U.S.C. § 753(b), and requires reversal
of Slaughter’s convictions. The written jury instructions are
included in the appellate records. Circuit Judge Carl E. Stewart
granted the Government’s motion to supplement the record with
affidavits of the trial attorneys and the court reporter, stating
that the trial court read the jury instructions as written
without any deviations. Because the written instructions are
part of the record and because the above affidavits establish
that the trial court read the instructions as written without any
deviation, the court reporter’s failure to transcribe the jury
instructions does not require the reversal of Slaughter’s
convictions. See United States v. Pace, 10 F.3d 1106, 1125 (5th
Cir. 1993).
Slaughter argues that the trial court erred in failing to
instruct the jury on the theory of multiple conspiracies.
Because Slaughter did not object to the district court’s failure
to instruction the jury on this theory, review is limited to
plain error. United States v. Calverley, 37 F.3d 160, 162-64
(5th Cir. 1994) (en banc). Under Fed. R. Crim. P. 52(b), this
court may correct forfeited errors only when the appellant shows
the following factors: (1) there is an error, (2) that is clear
or obvious, and (3) that affects his substantial rights.
Calverley, 37 F.3d at 162-64 (citing United States v. Olano, 507
U.S. 725, 730-36 (1993)). If these factors are established, the
decision to correct the forfeited error is within the sound
discretion of the court, and the court will not exercise that
discretion unless the error seriously affects the fairness,
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integrity, or public reputation of judicial proceedings. Olano,
507 U.S. at 736. Slaughter does not argue that the evidence at
trial showed that he was involved only in a separate uncharged
conspiracy and not in the overall conspiracy charged in count one
of the indictment; he does not dispute that the evidence
presented at trial established his participation in the overall
conspiracy in count one. Under such circumstances, the district
court’s failure to five a jury instruction concerning multiple
conspiracies was not plain error. See United States v.
Castaneda-Cantu, 20 F.3d 1325, 1333 (5th Cir. 1994).
Slaughter argues that the district court erred in failing to
instruct the jury that it was legally impossible for a defendant
to conspire with a government agent or informant. Because
Slaughter did not raise this argument in the district court,
review is limited to plain error. See Calverley, 37 F.3d at
162-64. Slaughter’s reliance on Sears v. United States, 343 F.2d
139, 142 (5th Cir. 1962) is misplaced. In Sears, the court held
that there could be no indictable conspiracy when the only other
supposed coconspirator was a government informant. Id. at 142.
This case is distinguishable because the Government indicted and
presented evidence at trial to establish a conspiracy existed
which included Slaughter and five others who were not government
agents or informants. Slaughter does not argue that the evidence
was insufficient to establish the existence of the conspiracy
charged in count one of the indictment.
Slaughter argues that the district court erred in enhancing
his offense level by four points for his role as a
No. 99-11142
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leader/organizer pursuant to § 3B1.1(a) of the United States
Sentencing Guidelines. Although Slaughter testified at the
sentencing hearing, he did not present any evidence to rebut the
facts set forth in the Presentence Report which indicated that he
was a leader/organizer of the conspiracy. The evidence
established that at least twelve people sold cocaine case for
Slaughter; that Slaughter recruited people to transport drugs,
sell drugs, “cook” and cut up cocaine base, store cocaine base,
count money, and carry out other tasks in furtherance of the
conspiracy; that Slaughter used force and threats to keep the
sellers in line; and that Slaughter derived substantial income
which exceeded the share of the street dealers that he recruited.
Slaughter has not shown that the district court clearly erred in
finding that he was a leader/organizer of the conspiracy and in
increasing his offense level under § 3B1.1(a). See United States
v. Boutte, 13 F.3d 855, 860 (5th Cir. 1994).
Slaughter argues that the district court erred in enhancing
his offense level by two points for obstruction of justice
pursuant to § 3C1.1 of the Guidelines. He argues that the
district court violated his due process rights and confrontation
rights by considering the testimony of Drug Enforcement
Administration Agent Brad Baker concerning hearsay statements at
the sentencing hearing. For sentencing purposes, the district
court may consider any relevant evidence, including
uncorroborated hearsay statements, if the information has a
“sufficient indicia of reliability to support its probable
accuracy.” See United States v. Davis, 76 F.3d 82, 84 (5th Cir.
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1996); United States v. Gaytan, 74 F.3d 545, 558 (5th Cir. 1996).
Slaughter did not present any evidence, other than his denial at
the sentencing hearing, to rebut Agent Baker’s testimony that
Slaughter obstructed justice by threatening a codefendant and
urging others to lie or leave town. Slaughter also did not show
that Agent Baker’s testimony concerning the hearsay statements
was materially untrue or unreliable. Therefore, he has not shown
that the district court clearly erred in finding that he
obstructed justice and in increasing his offense level under
§ 3C1.1.
Slaughter argues that the district court erred in enhancing
his offense level by two points under § 2D1.1(a)(1) of the
Guidelines because one offense occurred near a protected area.
Because Slaughter did not raise this argument in the district
court, review is limited to plain error. See Calverley, 37 F.3d
at 162-64. Slaughter concedes that a two-level reduction in his
offense level would not affect the applicable sentencing
guideline range. If his offense level were reduced from 46 to
44, his offense level would still be treated as the maximum
offense level of 43 pursuant to U.S.S.G. Ch.5, Pt. A, comment.
(n.2). Because Slaughter concedes that the correction of this
alleged error would not change the applicable guideline
sentencing range, we decline to address the merits of this claim.
See United States v. Lopez, 923 F.3d 47, 51 (5th Cir. 1991).
Slaughter argues that his conviction should be reversed
because the jury was not required to find the quantity of drugs
as an element of each of the charged offenses. Slaughter’s
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argument is foreclosed by this court’s precedent. See United
States v. Rios-Quintero, 204 F.3d 214, 215 (5th Cir. 2000);
United States v. Watch, 7 F.3d 422, 426 (5th Cir. 1993).
AFFIRMED.