IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-11409
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GENICE STRIBLING
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the
Northern District of Texas, Dallas
USDC No. 3:99-CR-111-3-P
_________________________________________________________________
April 19, 2001
Before FARRIS,* JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:**
Genice Stribling appeals her conviction and sentence for
distribution and conspiracy to distribute cocaine base, in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(iii),
841(b)(1)(B)(iii) and 846. Specifically, she challenges: (1) the
denial of a motion for a new trial, based on the court’s refusal to
grant Stribling’s third and fourth requests for funds for an
*
United States Circuit Judge of the Ninth Circuit, sitting by
designation.
**
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this opinion should not be published and is not precedent except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.
investigator; (2) the admission of a statement at trial as an
exception to the hearsay rule; (3) her sentence, in the light of
the fact that the jury did not find a specific drug quantity; (4)
the constitutionality of 21 U.S.C. §§ 841(a) and (b); and (5) the
district court’s failure to consider the Bureau of Prison’s ability
to care for Stribling during the sentencing phase. We affirm the
conviction, but modify the term of Stribling’s supervised release.
I
Stribling first claims that the district court’s failure to
provide funding for the services of an investigator constitutes
grounds for a new trial. Under 18 U.S.C. § 1306A(e)(1), a district
court can provide defendants with funds to hire an investigator
when they are financially unable to do so. The defendant bears the
burden of demonstrating with specificity the reason why the
services of an investigator are necessary. United States v.
Gadison, 8 F.3d 186, 191 (5th Cir. 1993). We review both the
district court’s refusal to grant a new trial and its decision not
to provide funds for an investigator for abuse of discretion. See
Gadison, 8 F.3d at 191; United States v. Cantu, 167 F.3d 198, 201
(5th Cir. 1999).
The district court granted Stribling’s first two requests for
investigatory funds, but denied her third and fourth requests for
funds to hire a private investigator. The court noted that her
requests were “devoid of specifics as to what specific services the
private investigator was to perform and how those services are
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necessary;” that she had two attorneys representing her; that her
case was not complex; and that she had access to witness testimony
from the trial of her daughter and co-defendant, Sharanda Jones, at
which her lawyers were present. Stribling contends that because of
the lack of funds, she was unable to investigate three government
witnesses who provided prejudicial testimony. Stribling, however,
failed to demonstrate what investigative efforts had been
exhausted, why her attorneys could not perform the necessary
investigation, or why the funds provided her were insufficient to
cover further investigation. The district court did not abuse its
discretion in denying Stribling’s additional requests for funds for
an investigator. Furthermore, Stribling had the opportunity to
impeach the witnesses she did not interview, and copious evidence
of her guilt was presented at trial. Additional investigation is
most unlikely to have resulted in acquittal. See United States v.
Lowder, 148 F.3d 548, 551 (5th Cir. 1998)(noting that newly
discovered evidence warrants a new trial only if, among other
factors, the new evidence would “probably produce an acquittal”).
Thus, the district court did not abuse its discretion by refusing
to grant Stribling’s motion for a new trial.
II
Stribling next argues that her conviction should be reversed
because the district court erred in admitting the April 6, 1999,
written statement of Kelly Douglas as a “prior consistent
statement,” (which, of course, is not considered hearsay under
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Federal Rule of Evidence 801(d)(1)(B)). As the Government
acknowledges, introduction of the statement, which was made after
Douglas changed her statements to the DEA in an effort to cooperate
with the government, was improper. See Tome v. United States, 513
U.S. 150 (1995) (prior consistent statements are admissible only if
they are made prior to the alleged fabrication or motive to
fabricate).
Errors in admissions under Rule 801 are reviewed for harmless
error. United States v. Powers, 168 F.3d 741, 750-51 (5th Cir.
1999). “Harm will be found only if the evidence had a ‘substantial
impact’ on the jury's verdict.” United States v. Dickey, 102 F.3d
157, 163 (5th Cir. 1996). Douglas’s April 6, 1999, statement was
largely repetitive of a statement she gave to the DEA on December
10, 1998, implicating Stribling in drug dealing. Stribling
impeached Douglas’s testimony at trial with two statements that
Douglas had made indicating that Stribling was not involved in drug
dealing, as well as Douglas’s motive to lie. While the April 6,
1999, statement may have been slightly more detailed than Douglas’s
testimony or the December statement, these extra details in a
statement that was largely cumulative could not have had a
substantial impact on the jury’s verdict. Furthermore, Douglas was
just one of many witnesses who tied Stribling to drug dealing. The
district court’s erroneous admission of the April 6, 1999,
statement was harmless error.
III
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Relying on Apprendi v. New Jersey, 530 U.S. 466 (2000),
Stribling next challenges the validity of her sentence. Although
the indictment mentioned specific drug quantities, the district
court failed to state the specific quantity of drugs when it
instructed the jury as to the essential elements of the offense
that the jury was required to find beyond a reasonable doubt.
Because Apprendi requires that any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be alleged
in the indictment and proved to a jury beyond a reasonable doubt,
the district court erred in failing to instruct on drug quantity.
See United States v. Doggett, 230 F.3d 160, 165 (5th Cir. 2000),
cert. denied, 121 S.Ct. 1152 (2001). A fact used in sentencing
that does not increase a penalty beyond the statutory maximum,
however, does not need to be proved to a jury beyond a reasonable
doubt. United States v. Keith, 230 F.3d 784, 787 (5th Cir. 2000)
cert. denied, 121 S.Ct. 1163 (2001).
Stribling objected to the jury instructions at sentencing, and
thus, her sentencing challenge is reviewed do novo. United States
v. Garcia, 242 F.3d 593 (5th Cir. 2001) (“Defendant challenged his
sentence . . . at the sentencing hearing. Thus, he has adequately
preserved error, and the issue is before us on de novo review.”).
As Stribling recognizes, her 204 month prison term does not exceed
the twenty year maximum term of 21 U.S.C. § 841(b)(1)(C) and,
therefore, does not violate Apprendi. Stribling’s five year term
of supervised release, however, exceeds the three year statutory
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maximum provided by 18 U.S.C. § 3583(b)(2), which is applied to
convictions under 21 U.S.C. § 841(b)(1)(C). See Doggett, 230 F.3d
at 165 n.2; United States v. Kelly, 974 F.2d 22, 24 (5th Cir.
1992). Accordingly, Defendant’s term of supervised release must be
reduced from five years to no more than three years.***
Stribling also argues that Apprendi renders 21 U.S.C. § 841(a)
and (b) unconstitutional, because we previously ruled that Congress
intended drug quantity to be a sentence enhancement factor rather
than an element of the offense. We rejected this constitutional
challenge in United States v. Slaughter, 238 F.3d 580, 582 (5th
Cir. 2001).
IV
Finally, Stribling contends that the district court’s refusal
to depart downward on her sentence was based on materially
erroneous assumptions, in violation of due process. Stribling is a
bed-bound quadriplegic who requires constant medical attention.
She argues that, in ruling that the prison system had “the
***
The government suggests that we could reduce the term of
supervised release to three years without remanding the case,
because the minimum term of three years of supervised release under
§ 841(b)(1)(C) and the maximum term of three years of supervised
relief under § 3583(b)(2) leave the district court with no
discretion to impose any other term of supervised release. See
Doggett, 230 F.3d at 165 n.2 (modifying the term of supervised
release to three years without remanding the case for
resentencing). Stribling, however, contends that she qualifies for
the safety valve provisions of 18 U.S.C. § 3553(f) and U.S.S.G. §
5C1.2, and is therefore not subject to any mandatory minimum terms
of supervised release. We leave this for the district court to
consider on remand.
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capacity, the facilities, to deal with Ms. Stribling’s condition,”
the district court did not consider the adequacy of medical care at
FMC Carswell, the only medical facility for female federal
prisoners. Stribling also moves to supplement the record with
newspaper articles and affidavits about the poor quality of medical
care at FMC Carswell.
A district court is entitled to depart downward from the
applicable sentencing range in the sentencing guidelines in the
case of an “extraordinary physical impairment” when, for instance,
“home detention may be as efficient as, and less costly than,
imprisonment.” U.S.S.G. § 5H1.4. In this circuit, we have no
jurisdiction to review a district court’s discretionary decision
not to depart downward absent a court’s misunderstanding of the
law. United States v. Dadi, 235 F.3d 945, 954 (5th Cir. 2000).
Thus, although we can consider Stribling’s constitutional
challenge, we cannot review the district court’s failure to depart
downward in calculating Stribling’s sentence.
Stribling correctly notes that a sentence based upon erroneous
and material information violates due process. United States v.
Mueller, 902 F.2d 336, 347 (5th Cir. 1990). We accept the district
court’s findings of fact relating to sentencing, however, unless
clearly erroneous. United States v. Deavours, 219 F.3d 400, 402
(5th Cir. 2000). Although the adequacy of Stribling’s medical care
is now disputed, Stribling fails to meet her burden of showing that
the district court’s findings of fact were clearly erroneous or
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that “the district court relied on materially untrue information”
when it refused to reduce her sentence based on her medical
condition. Id. We therefore uphold the term of Stribling’s
incarceration and deny her motion to supplement the record.
V
For the reasons stated above, we AFFIRM Stribling’s conviction
and the district court’s denial of Stribling’s motion for a new
trial. We also AFFIRM Stribling’s sentence, except for the term of
supervised release, which we VACATE and REMAND to the district
court for resentencing consistent with this opinion.
AFFIRMED in part; VACATED and REMANDED in part.
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