United States v. Broussard

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 95-30628
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WARREN J. BROUSSARD, JR.,

Defendant-Appellant.

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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. CR-94-20018
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September 20, 1996

Before JONES, DeMOSS and PARKER, Circuit Judges.

PER CURIAM:*

Warren J. Broussard, Jr., appeals his conviction and

sentence for possession with intent to distribute cocaine base

pursuant to 21 U.S.C. § 841. Broussard argues that the district

court erred in denying the downward adjustment for acceptance of

responsibility because he gave a signed confession and did not

contest the presence or amount of narcotics, and the only issue

*
Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule
47.5.4.
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at trial was whether he could be held accountable for the mental

state of the crime rather than his participation. He contends

that application note 2 to U.S.S.G. § 3E1.1 applies. Broussard

denied his guilt and put the Government to its burden of proof on

an element of the crime, intent to distribute. The district

court did not clearly err in denying the adjustment. United

States v. Cartwright, 6 F.3d 294, 304 (5th Cir. 1993), cert.

denied, 115 S. Ct. 671 (1994).

Broussard argues that, based on expert testimony, cocaine

base and powder cocaine are scientifically the same substance,

that the disparity in the guidelines ranges for the two drugs is

unfounded, and that the lesser guideline range for powder cocaine

should apply according to the rule of lenity and the Equal

Protection Clause. This court rejected this identical argument

in United States v. Flanagan, 87 F.3d 121, 123-24 (5th Cir.

1996); see also United States v. Cherry, 50 F.3d 338, 342-44 (5th

Cir. 1995)(rejecting equal protection argument).

Broussard’s statement is sufficient evidence from which to

infer his intent to distribute the cocaine. The record is not

devoid of evidence of his intent to distribute. United States v.

Laury, 49 F.3d 145, 151 (5th Cir.), cert. denied, 116 S. Ct. 162

(1995); United States v. Pierre, 958 F.2d 1304, 1310 (5th Cir.)

(en banc).

Broussard’s speedy trial argument is abandoned for failure

to brief it. Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.

1993). Likewise, Broussard has failed to brief and has thus

abandoned his argument that his later consent to search the van
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was tainted by the alleged prior illegal arrest, rendering the

arrest issue moot.

AFFIRMED.