UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 98-10457
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID EARL KATES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
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May 3, 1999
Before HIGGINBOTHAM, JONES, and WIENER, Circuit Judges.
PER CURIAM:
Appellant David Earl Kates, sentenced to 360 months
imprisonment as a career offender convicted of possession with
intent to distribute crack cocaine, asserts three issues on appeal.
He contends that the evidence was insufficient to show that the
19.67 grams of crack cocaine he possessed were intended for
distribution; that the government withheld exculpatory Brady
evidence of Yshone Chamine Moore; and that his prior convictions do
not render him a career offender under the Sentencing Guidelines.
Finding no reversible error, we affirm.
Amarillo police officers were chasing a suspected stolen
car, which pulled to a stop at the house of Yshone Chamine Moore,
a/k/a “Fat Mama.” Appellant Kates emerged from the car and walked
toward the house. Officer Brent Harlan testified that he saw Kates
pull a package from the waist of his pants and throw it in the
direction of the house. As Kates did so, Officer Harlan tackled
Kates, but before he could handcuff him, Harlan saw Moore take the
package and run around the side of the house. Officer Harlan
chased Moore and took her into custody. Kates returned to his car
and drove away, but he was apprehended within a few blocks.
Neither Kates nor Moore had drugs in their possession, but Moore
led the officers to a baggy of crack cocaine hidden in tall grass.
Kates and Moore were charged with possession of cocaine
base (crack cocaine) with intent to distribute. Moore pleaded
guilty about one week before Kates’s trial. In doing so, she
stipulated to a factual recitation that included Kates saying
“Here, take this Mama,” as he threw the clear plastic baggy toward
her. Moore stipulated that the baggy contained crack cocaine.
The government led Kates to believe that Moore would be
a prosecution witness, but she was never called to testify.
Kates’s defense was that the drugs belonged to Moore, but she made
a deal with the prosecutors to receive a more lenient sentence if
she testified against Kates. The defense also argued that no
physical evidence connected Kates to the drugs. Kates was
convicted.
2
On appeal, Kates asserts that the government did not
establish that he possessed cocaine base with intent to distribute.
This crime requires proof beyond a reasonable doubt that the
defendant (1) knowingly (2) possessed cocaine (3) with intent to
distribute it. See United States v. Ortega Reyna, 148 F.3d 540,
543-44 (5th Cir. 1998). Intent to distribute may be inferred from
the possession of a quantity of drugs too large to be used by the
defendant alone. See United States v. Prieto-Tejas, 779 F.2d 1098,
1101 (5th Cir. 1986). Possession of a small quantity of illegal
drugs consistent with personal use does not support an inference of
intent to distribute in the absence of other evidence, such as drug
paraphernalia, guns, or large quantities of cash. See United
States v. Hunt, 129 F.3d 739, 742-44 (5th Cir. 1997).
This court must affirm a conviction if a rational trier
of fact could have found, viewing the evidence and all inferences
therefrom in the light most favorable to the verdict, that the
evidence established the essential elements of the crime beyond a
reasonable doubt. See United States v. Mmahat, 106 F.3d 89, 97
(5th Cir. 1997).
DEA Agent Larry Lamberson testified that the 19.67 grams
of crack cocaine would be sold in rocks in very small amounts. He
testified that the baggy seized would probably contain 190 rocks
and would be valued from $1,900 to $3,800. He opined that this was
definitely a distributable quantity and that such a quantity is
hardly ever purchased for personal use. Kates’s finger prints were
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not identified on the baggy, and no other evidence of drug dealing
exists in this record.
Kates contends that under applicable case law, the amount
he was found to possess, less than one ounce of crack cocaine, is
insufficient to support an inference of intent to distribute. This
court has overturned convictions of possession with intent to
distribute 2.89 grams1 and 7.9982 grams of crack cocaine. Kates
also relies on the Supreme Court’s decision that possession of
14.68 grams of cocaine is insufficient, in and of itself, to
establish intent to distribute. See Turner v. United States, 396
U.S. 398, 422-23, 90 S. Ct. 642, 655-56 (1970).
Not only do the Fifth Circuit cases involve much smaller
quantities of crack, but Kates’s analogy to Turner is flawed. As
the Eleventh Circuit observed, cases like Turner “are
distinguishable since they do not involve the more potent,
concentrated form of the drug, cocaine base.” United States v.
Robinson, 870 F.2d 612, 612-13 (11th Cir. 1989). The Eleventh
Circuit noted that the mandatory minimum sentencing provisions for
cocaine base are 100 times more stringent than for other forms of
cocaine. See id. at 613; see also 21 U.S.C. §§ 841(b)(1)(A),
841(b)(1)(B). While Turner is inapposite, other circuit court
cases have consistently held that amounts of crack cocaine weighing
1
See United States v. Skipper, 74 F.3d 608, 611 (5th Cir.
1996).
2
See Hunt, 129 F.3d at 742.
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as little as 10 grams could be sufficient to sustain convictions
for possession with intent to distribute. See United States v.
Smith, 91 F.3d 1199, 1201 (8th Cir. 1996) (9.9 grams of cocaine
base “far exceeds the amount attributable to personal use”); United
States v. Bell, 954 F.2d 232, 235 (4th Cir. 1992) (“The thirteen
plus grams of crack . . . is a ‘large quantity’ supporting the
factfinder’s inference that an intent to distribute existed.”),
overruled on other grounds by United States v. Burgos, 94 F.3d 849
(4th Cir. 1996) (en banc); Robinson, 870 F.2d at 613 (25.2 grams
sufficient); see also United States v. Lamarr, 75 F.3d 964, 973
(4th Cir. 1996) (5.72 grams sufficient).
Based on the totality of these authorities, together with
DEA Agent Lamberson’s confirmation that the 19.67 grams of crack
was almost surely intended for distribution, the amount possessed
by Kates created at least a jury question regarding intent to
distribute. The jury had sufficient evidence to conclude that
Kates was guilty as charged.
Kates’s next contention is that the government should
have informed him that Moore changed her story just before trial,
dissuading the government from calling her as a witness. Kates
asserts that her new testimony would have been material and
exculpatory, and the government’s failure to disclose this violated
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963). Kates
raised this contention in a motion for new trial based on newly
discovered evidence, and he appended an affidavit of Moore which
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states, inter alia, that Kates “didn’t toss me anything and I never
saw him with any dope or with a plastic bag.” Moore’s affidavit
also states that she did not know where the dope came from and that
she did not see it come from Kates.
Reviewing the Brady issue de novo as we are bound to do,
U.S. v. Green, 46 F.3d 461, 464 (5th Cir. 1995), we conclude that
the proffered evidence from Moore either was not exculpatory or was
not material to the outcome of the trial. The district court
concluded that even if Moore had testified at trial by saying what
is in her affidavit, that testimony would not be exculpatory of
Kates.
We shall assume arguendo that the prosecution knew,
contrary to Agent Lamberson’s affidavit submitted in response to
the motion for new trial, that Moore had changed her story before
trial to the version related in her post-trial affidavit. Moore’s
affidavit is at least ambiguous on the critical point of Kates’s
possession of the baggy containing crack. Neither interpretation
of her affidavit, however, assists Kates. First, if Moore
testified that Kates never threw her the baggy or said anything to
her, she would be making statements contrary to her sworn
statements at her guilty plea hearing. Such plainly inconsistent
and possibly perjurious testimony by Moore at Kates’s trial could
not be credible and would not be exculpatory. Second, considering
the other possible interpretation of Moore’s affidavit, if she did
not know where the baggy came from, her testimony would not have
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contradicted the police officers. They specifically testified that
Kates threw the baggy to Moore, who ran off with it and tried,
unsuccessfully, to toss it away in a vacant lot. This testimony
would not have incriminated Kates, but it wouldn’t have created a
conflict that could have exculpated him either.
In any event, the probability that Moore’s testimony
could have put this case in a such a different light as to
undermine confidence in the verdict is not a reasonable one. “The
mere possibility that an item of undisclosed information might have
helped the defense, or might have affected the outcome of the
trial, does not establish 'materiality' in the constitutional
sense." United States v. Agurs, 427 U.S. 97, 109-10 (1978). Given
the weight of the other evidence and Moore’s late unreliable
assertions, we find there is no reasonable probability that Kates
would have been acquitted if the allegedly exculpatory testimony
had been admitted. See Bagley, 473 U.S. at 682.
Kates resists being sentenced as a career offender under
U.S. Sentencing Guidelines Manual § 4B1.1, i.e., a person who had
at least two prior felony convictions of a controlled substance
offense. Kates denies that he has two previous relevant felony
convictions because he was arrested for two separate offenses on
the same day and was sentenced for those offenses on the same day.
If the defendant’s prior convictions constitute “related
cases” within the meaning of U.S. Sentencing Guidelines Manual §
4A1.2(a)(2), they will not be treated separately for career
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offender purposes. The official commentary to that guideline
states that “prior sentences are considered related if they
resulted from offenses that (1) occurred on the same occasion, (2)
were part of a single common scheme or plan, or (3) were
consolidated for trial or sentencing.” U.S. Sentencing Guidelines
Manual § 4A1.2 cmt. 3. This court has held that “a finding that
prior cases were ‘consolidated’ will require some factual connexity
between them, or else a finding that the cases were merged for
trial or sentencing.” United States v. Huskey, 137 F.3d 283, 288
(5th Cir. 1998). Either a formal order of consolidation or the
listing of the two offenses in the same criminal information under
the same docket number is sufficient to find that two separate
offenses were consolidated. See id. By contrast, neither the fact
that sentencing for both offenses occurs on the same day (and/or in
the same proceeding) nor the imposition of identical, concurrent
sentences is sufficient to find that factually distinct offenses
were “related cases.” See id.
Kates’s previous state court convictions arise from his
delivery of cocaine to an undercover agent on May 11, 1991, and the
separate delivery of cocaine to another undercover agent one week
later. Kates was arrested for the offenses on the same day. Two
indictments were returned against him, and the cases were not
formally consolidated. Kates received concurrent but different
sentences from a single judge: he was sentenced to ten years
deferred probation for one offense and ten years straight probation
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for the other. Kates was paroled on each offense on the same day.
These coinciding events are not, however, sufficient to find
consolidation under Fifth Circuit precedent. See, e.g., United
States v. Garcia, 962 F.2d 479, 482-83 (5th Cir. 1992). This court
has rejected the proposition that cases must be considered
consolidated simply because two convictions have concurrent
sentences. See id. at 482. Moreover, as Huskey demonstrates, the
simultaneous disposition of two separate cases does not amount to
consolidation for guidelines purposes. Kates’s arguments based on
case law from the Ninth Circuit or disagreement with this circuit’s
precedent will not suffice to overcome the career offender
enhancement.
For the foregoing reasons, the judgment of conviction and
sentence are AFFIRMED.
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