UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-40265
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES EARL MANKINS, JR.,
Defendant-Appellant.
Appeal from the United States District Court
For the Eastern District of Texas
February 18, 1998
Before POLITZ, Chief Judge, GARWOOD and BARKSDALE, Circuit Judges.
POLITZ, Chief Judge:
James Earl Mankins, Jr. appeals his sentence for conspiracy to possess with
intent to distribute methamphetamine in violation of 21 U.S.C. §§ 846 and 841(a)(1).
For the reasons assigned, we affirm.
BACKGROUND
While under surveillance by the Drug Enforcement Administration, a confidential
source purchased methamphetamine from Mankins on three occasions in February
1996. Laboratory analysis disclosed that Mankins delivered 26.6 grams of
amphetamine on the first occasion, 10.3 grams of D-methamphetamine on the second
occasion, and 27.9 grams of D-methamphetamine on the third occasion. In May 1996,
the DEA initiated surveillance of Mankins and his co-conspirator, Deborah Hicks.
After observing what appeared to be a drug transaction, drug enforcement agents, with
the assistance of the local police, intercepted and arrested Mankins and Hicks. A
search of their vehicle and residence revealed cash, syringes, zip-lock bags, scales, and
55.5 grams of D-methamphetamine among other substances.
An indictment was returned charging Mankins and Hicks with one count of
conspiracy to possess with intent to distribute more than ten grams of
methamphetamine and four counts of possession with intent to distribute and the
distribution of more than ten grams of methamphetamine. The government filed a
notice of its intent to seek a sentence enhancement based on Mankins’ previous
conviction for using a communication facility to commit or facilitate acts constituting
a felony under the federal drug laws in violation of 21 U.S.C. § 843(b). Under a
written plea agreement, Mankins pled guilty to the conspiracy charge and stipulated to
possessing 93.7 grams of methamphetamine mixture or 9.88 grams of actual
methamphetamine. The government reserved its right to establish that Mankins
possessed a total of 100 grams of methamphetamine mixture or 10 grams of actual
methamphetamine for sentencing, as well as to seek the enhancement earlier noted.
After the Presentence Investigation Report was completed, Mankins objected to
the quantity of methamphetamine involved, the suggested enhancement for a prior
felony conviction, and an enhancement for being an organizer of the criminal activity.
At sentencing the government presented exhibits and Hicks’ testimony to establish that
in addition to the stipulated 93.7 grams, Mankins obtained additional quantities of
2
methamphetamine from a supplier in Sulphur Springs on at least three occasions.
Based on this evidence, the district court found that Mankins possessed a total of 100
grams of methamphetamine mixture, invoking the sentencing provisions set forth in 21
U.S.C. § 841(b)(1)(B)(viii). The district court also found that Mankins was an
organizer under U.S.S.G. § 3B1.1 and that his prior conviction constituted a felony
drug offense, warranting a sentence enhancement. Accordingly, the district court
sentenced Mankins under § 841(b)(1)(B)(viii) to 120 months in prison and eight years
supervised release.1 No fine was imposed. Mankins timely appealed, contending that
the district court erred in: (1) finding that he possessed 100 grams of methamphetamine
mixture; (2) determining that his prior conviction for “telephone facilitation” is a felony
drug offense for enhancement purposes; and (3) finding that he was an organizer under
U.S.S.G. § 3B1.1(c).
ANALYSIS
Title 21, United States Code section 841(b)(1)(B)(viii) establishes statutory
sentencing provisions if a defendant possesses 100 grams or more of a mixture
containing methamphetamine. Mankins contends that the evidence is insufficient to
show that he possessed 100 grams of methamphetamine mixture. This contention
overlooks the rubric that a defendant participating in a drug conspiracy is accountable
for the foreseeable quantity of drugs attributable to the conspiracy.2 This quantitative
1
Under the Guidelines, Mankins had a total offense level of 25 and a criminal
history category of II, resulting in a guidelines range of 63 to 78 months. With a prior
conviction for a felony drug offense under § 841(b)(1)(B)(viii), the statutory mandatory
minimum term of imprisonment is ten years and the maximum term is life.
2
United States v. Mitchell, 31 F.3d 271 (5th Cir. 1994).
3
computation at sentencing is a factual finding, to be established by a preponderance of
the evidence,which will be upheld on appeal unless clearly erroneous.3
Mankins stipulated that he possessed 93.7 grams of methamphetamine mixture
based on the 38.2 grams of D-methamphetamine delivered to the confidential source
in February 1996 and the 55.5 grams of D-methamphetamine found after his arrest.
The district court relied primarily on Hicks’ testimony at the sentencing hearing to find
that Mankins possessed a minimum of 6.3 additional grams for a total of 100 grams of
methamphetamine mixture. Mankins contends, however, that the quantity of drugs
about which Hicks testified is included in the stipulated 93.7 grams, and that her
testimony is based on subjective beliefs and is unreliable.
Hicks testified that Mankins traveled with her on three or four occasions to
Sulphur Springs where, on each trip, she purchased approximately one or two ounces
(28 to 56 grams) of good quality methamphetamine. Hicks stated that she would give
Mankins an eighth of an ounce each trip for accompanying her. She also testified that
she believed Mankins was selling the methamphetamine he obtained from her as well
as from others, because he was selling more than she gave him. Giving due
consideration to this evidence, we cannot say that the district court’s finding of drug
quantity is clearly erroneous. The statutory sentencing provisions of §
841(b)(1)(B)(viii) were applicable herein.
Under § 841(b)(1)(B)(viii), the mandatory term of imprisonment increases if the
3
United States v. Dickey, 102 F.3d 157 (5th Cir. 1996).
4
defendant has a prior conviction for a felony drug offense.4 Mankins maintains that the
district court erred in determining that the enhancement applies because his prior
conviction for violating 21 U.S.C. § 843(b) does not constitute a felony drug offense.5
This presents an issue of first impression for us. As a question of law, we review the
district court’s determination de novo.6
A felony drug offense is “an offense that is punishable by imprisonment for more
than one year under any law of the United States or of a State or foreign country that
prohibits or restricts conduct relating to narcotic drugs, marihuana, or depressant or
stimulant substances.”7 Section 843(b) provides:
It shall be unlawful for any person knowingly or intentionally to use any
communication facility in committing or in causing or facilitating the
commission of any act or acts constituting a felony under any provision
of this [control and enforcement] subchapter or [the import and export]
subchapter ... of this [drug abuse and prevention] chapter.
Mankins contends that his conviction for violating § 843(b) is not a “drug offense”
because guilt of the underlying act is not an element of proof for facilitation under §
843(b), and he did not plead to such.8 Mankins misconstrues, however, the required
4
The sentencing range increases from a minimum of 5 years and a maximum of 40
years to a minimum of 10 years and a maximum of life imprisonment.
5
Mankins does not dispute that his prior conviction under § 843(b) is final or that
it is a felony for purposes of the enhancement.
6
United States v. Sandle, 123 F.3d 809 (5th Cir. 1997).
7
21 U.S.C. § 802(44). This statutory definition has remained essentially consistent
since its inception in 1984. See Sandle, 123 F.3d at 811 fn.2.
8
United States v. Domino, 62 F.3d 716 (5th Cir. 1995); United States v.
Martinez, 950 F.2d 222 (5th Cir. 1991).
5
proof of the underlying offense and, thus, the nature of a § 843(b) violation.
A conviction under § 843(b) requires proof that a defendant (1) knowingly or
intentionally (2) used a communications facility (3) to facilitate the commission of a
drug offense.9 This third element requires proof of the underlying drug offense that the
defendant is accused of facilitating, even though it is not separately charged.10 The
statute therefore requires that in the course of using a communications facility the
defendant must either commit an independent drug crime, or cause or facilitate such a
crime.11 As an element of the offense, the statute can clearly be viewed as prohibiting
these drug related acts. Section 843(b) thus falls within the definition of a “felony drug
offense” in that it “prohibits or restricts conduct relating to [unlawful controlled
substances].”12 Accordingly, we find and conclude that the district court did not err by
construing Mankins’ prior conviction for violating § 843(b) as a felony drug offense in
order to enhance his sentence.13
Having concluded that the district court correctly sentenced Mankins under the
enhanced statutory imprisonment range, we need not consider Mankins’ challenge to
the U.S.S.G. § 3B1.1(c) enhancement. Even with this enhancement the resulting
guidelines range is below the statutory mandatory minimum term of imprisonment,
9
Id.
10
United States v. Rey, 641 F.2d 222 (5th Cir. 1981).
11
See United States v. Vea-Gonzales, 999 F.2d 1326 (9th Cir. 1993).
12
21 U.S.C. § 802(44).
13
See 21 U.S.C. § 841(b)(1)(B)(viii).
6
making this issue moot.
The judgment appealed is AFFIRMED.
7