United States v. Brown

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 00-30356

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CALVIN BROWN, JR.; JESSE L. CAGE,

Defendants-Appellants,

- - - - - - - - - -
Appeal from the United States District Court
for the Eastern District of Louisiana
(98-CR-194-3-G)
- - - - - - - - - -
June 7, 2001
Before DAVIS, WIENER, and STEWART, Circuit Judges.

WIENER, Circuit Judge:*

Defendants-Appellants Calvin Brown, Jr. and Jesse L. Cage

(collectively “Defendants”) challenge their convictions and their

sentences for possession with the intent to distribute and

conspiracy to possess with the intent to distribute cocaine

hydrochloride (“cocaine”). The jury found that each undertook

actions, individually and as part of a conspiracy, to sell cocaine

in the New Orleans area. Both challenge, inter alia, the

sufficiency of the evidence, the district court’s admission of

*
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this opinion should not be published and is not precedent except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. Rule 47.5.4.
evidence gathered via a wiretap, and several of the district

court’s sentencing determinations. For the most part, we find

their contentions to be without merit; however, they do correctly

argue that the period of supervised release to which they were

sentenced violates their constitutional rights. Therefore, we

affirm the judgment of the district court except as to that issue,

which we vacate and remand for modification.

I. Facts and Proceedings

Defendants’ convictions stem from their alleged roles in a

conspiracy to distribute cocaine in New Orleans. The picture that

the government painted at trial, and that the jury apparently

accepted, portrayed Cage as the leader of a conspiracy comprising

(at a minimum) himself, Brown, and another man, Fred Easterling.

A joint investigation by the Drug Enforcement Administration

(“DEA”) and Louisiana State Police uncovered evidence that

Defendants were conspiring with each other and others to sell

cocaine in New Orleans. Federal and state agents obtained a

warrant from a Louisiana state judge authorizing a wiretap to

intercept conversations over a telephone line used by Cage. The

agents recorded many conversations between Cage and Brown that

occurred between May 18 and June 18, 1998. Although drugs and

money were never explicitly mentioned, Defendants did discuss

numbers and debt.

2
 Easterling entered into a plea agreement with the government

and testified at trial. He admitted that on approximately four

different occasions, he purchased a quarter kilogram of cocaine

from Cage, paying $5,500 for each quarter-kilogram. In June of

1998, Easterling used the telephone to purchase approximately 1½

kilograms of cocaine from Cage for $29,000. On June 15, Cage

traveled to Easterling’s house in Alabama and picked up the

$29,000, leaving shortly thereafter to pick up the cocaine in

Houston. Agents conducted surveillance of Cage throughout his

journey. In Houston, Cage was observed entering a business

premises owned by co-defendant Jose Diaz,1 then leaving it in

possession of a brown box. Cage was followed to a motel where he

discarded the brown box. Agents recovered the box, and a drug dog

alerted to it. During his return trip from Houston to New Orleans

on June 18, 1998, Cage was stopped for speeding. He was given a

traffic citation and consented to a search of his vehicle. The

police found approximately two kilograms of cocaine in Cage’s

vehicle and arrested him.

Easterling testified that he met Brown on one occasion: After

Easterling received poor quality cocaine from Cage, Brown tested

the substance for them and confirmed that it was in fact “bad.”

Cage then replaced that “bad” cocaine with “good” cocaine.

1
Diaz, Cage’s alleged source of supply, was tried with
Defendants but because the jury was not able to reach a verdict as
to his guilt or innocence, a mistrial was declared as to him.

3
 Evidence was also introduced showing that in October of 1998,

an undercover agent met Brown in a Burger King parking lot to

purchase two ounces of cocaine from him. When Brown approached the

agent’s vehicle, he got out and identified himself to Brown as a

law enforcement officer. Brown fled, discarding approximately two

ounces of cocaine (which police later recovered) before he was

apprehended.

A jury found Brown and Cage guilty of (1) conspiring with each

other and with others to possess with the intent to distribute

cocaine in violation of 21 U.S.C. § 846 and (2) possessing with the

intent to distribute cocaine in violation of 21 U.S.C. § 841.

During sentencing, the district court concluded that Brown had one

prior drug conviction and that Cage had two, and enhanced their

criminal history scores accordingly. The court also increased

Cage’s sentencing range by two points for his role as a

leader/organizer. For sentencing purposes, the district court

found the quantity of cocaine involved to be between two and 3.5

kilograms. Brown received a concurrent 130 month sentence for each

count of conviction and an eight year term of supervised release.

Cage was sentenced to 360 months in prison to be followed by eight

years of supervised release, as well as a $5,000 fine.

II. Analysis

A. Sufficiency of the Evidence

4
 Brown and Cage both claim that the evidence adduced at trial

was insufficient to support their convictions. In reviewing

challenges to the sufficiency of the evidence, we ask whether,

after viewing the evidence in the light most favorable to the

jury’s verdict, “any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.”2 In

doing so, we resolve all credibility determinations and reasonable

inferences in favor of the jury’s verdict.3

Brown first claims that the government failed to adduce

sufficient evidence at trial to prove that he individually

possessed cocaine with the intent to distribute it in violation of

21 U.S.C. § 841. “To prove possession of a controlled substance

with intent to distribute, the government must prove beyond a

reasonable doubt the defendant’s possession of the illegal

substance, knowledge, and intent to distribute. The necessary

knowledge and intent can be proved by circumstantial evidence.”4

Brown claims only that the government failed to prove the element

of intent.

Brown’s conviction for possession with the intent to

distribute relates to his attempt to sell two ounces of cocaine to

2
Jackson v. Virginia, 443 U.S. 307, 319 (1979).
3
See United States v. Harvard, 103 F.2d 412, 421 (5th Cir.
1997).
4
United States v. Payne, 99 F.3d 1273, 1279 (5th Cir. 1996)
(quoting United States v. Rodriguez, 993 F.2d 1170, 1175 (5th Cir.
1993)).

5
an undercover agent in the Burger King parking lot. The officer

who had arranged to meet Brown in the parking lot to purchase

cocaine from him testified that as Brown approached his vehicle,

the officer got out, identified himself, and told Brown that he was

under arrest. Brown fled and, during the ensuing chase, tossed

aside a bag which was later recovered by the police and determined

to contain two ounces of cocaine. Brown argues that this evidence

did not sufficiently establish that he intended to sell drugs to

the officer because it did not show that (1) Brown offered to sell

or deliver drugs to the officer, (2) Brown knew why the officer was

in the Burger King parking lot, and (3) the cocaine Brown allegedly

threw to the ground during the chase was for sale and not for his

personal use. We disagree. A jury could reasonably conclude that

Brown was in the Burger King parking lot and approached the

officer’s car with the intent to sell him cocaine as planned; in

fact, that is the most likely construction of the evidence.

Brown also argues that even if the evidence is sufficient to

allow a jury to infer that he possessed cocaine with the intent to

distribute it, there is insufficient evidence to show that he was

a member of a conspiracy to do so. “To establish a drug conspiracy

[pursuant to 21 U.S.C. § 846], the government must prove: (1) the

existence of an agreement between two or more persons to violate

federal narcotics laws; (2) that the defendant knew of the

agreement; and, (3) that the defendant voluntarily participated in

6
the agreement.”5 “To establish such an agreement, the government

has the burden to prove beyond a reasonable doubt that [the

defendant] had ‘the deliberate, knowing, specific intent to join

the conspiracy.’”6 “The Government is not required to prove the

existence of the conspiracy and the agreement between the

co-conspirators and the defendant by direct evidence, but may

present circumstantial evidence, such as the co-conspirator's

concerted actions, from which the jury can infer that a conspiracy

existed.”7 However, “[i]t is not enough for it merely to establish

a climate of activity that reeks of something foul.”8

Considering the evidence adduced at trial in the light most

favorable to the jury’s verdict, as we must, we find it to be more

than sufficient to support that verdict. The jury heard testimony

identifying Brown as one of the two voices on the wiretap

conversations —— conversations that can reasonably be construed as

showing that Brown conspired with Cage to sell cocaine.

We find meritless Brown’s contention that the government

adduced insufficient evidence to prove that his was one of the two

voices on the wiretap conversations because, according to Brown,

5
United States v. Gallo, 927 F.2d 815, 820 (5th Cir. 1991).
6
United States v. Galvan, 693 F.2d 417, 419 (5th Cir. 1982)
(quoting United States v. DeSimone, 660 F.2d 532, 537 (5th
Cir.1981)).
7
Gallo, 927 F.2d at 820.
8
United States v. Wieschenberg, 604 F.2d 326, 331-32 (5th
Cir. 1979).

7
the identifying agent was not sufficiently familiar with Brown’s

voice and had no special expertise or training in voice

identification. A witness need not possess such expertise or

training to identify a recorded voice as long as the witness is

well familiar with the voice he is identifying.9 Here, the

identifying agent had been in Brown’s presence two or three times

totaling several hours, giving sufficient familiarity.

Viewing the wiretap conversations in the light most favorable

to the jury’s verdict, they clearly establish Brown’s role in the

drug conspiracy. The recordings show that Brown repeatedly engaged

in conversations with his alleged source of supply, Cage, regarding

debts and dropping off checks. Surveillance performed in

conjunction with the wiretap verified that money was placed in

Cage’s mailbox in a manner and in amounts consistent with the drop-

offs discussed between Brown and Cage. For instance, during the

recorded conversations between those two, a number of references

were made to drops at the Georgetown apartments in New Orleans. On

the date of Cage’s arrest, a search executed pursuant to a search

warrant produced $1,150 found in the mailbox;10 prior to that date,

Cage had told Brown that he owed him $1,200. Earlier, Cage and

9
See United States v. Biggins, 551 F.2d 64, 68 (5th Cir.
1977) (pursuant to Fed R. Evid. 901(b)(5), a witness’s familiarity
with the voice sought to be identified is sufficient to ensure
reliable voice identification).
10
During that same search, packaging materials were found in
Cage’s apartment with a cocaine residue.

8
Brown discussed the number “9” during a recorded conversation and,

subsequently, a search incident to a traffic stop of Cage produced

$900 in cash. Viewed in combination with the other evidence

presented at trial, the jury could reasonably conclude that these

recorded discussions contained coded references to drug

transactions. The jury’s verdict is bolstered by Easterling’s

testimony that the quality of cocaine was tested for him by Brown

at Cage’s request and direction.

Finally, Brown argues that the jury had no basis from which to

conclude that he should be held liable for the full extent of the

conspiracy because he was unaware of many of its details, notably,

Cage’s trip to Houston to pick up approximately two kilograms of

cocaine. Brown’s ignorance of Cage’s trip to Houston or any other

specific details of the conspiracy is irrelevant. “The government

does not have to prove that the defendant knew all of the details

of the unlawful enterprise . . . as long as there is evidence from

which the jury could reasonably infer that the defendant knowingly

participated in some manner in the overall objective of the

conspiracy.”11 Clearly, the government presented sufficient

evidence to that effect at trial.

B. Admission of the Wiretap Evidence

Defendants advance two reasons why the district court erred in

11
United States v. Posada-Rios, 158 F.3d 832, 858 (5th Cir.
1998).

9
denying their motion to suppress the wiretap evidence. They first

contend that the affidavits presented in support of the wiretap

failed to satisfy the “necessity” requirement of 18 U.S.C. §

2518(1)(c). We review for clear error a district court’s decision

regarding a motion to suppress recorded conversations on the ground

of alleged deficiencies in affidavits offered to support

authorization of a wiretap.12

18 U.S.C. § 2518(1)(c) requires that wiretaps be allowed only

when the supporting affidavits provide “a full and complete

statement as to whether or not other investigative procedures have

been tried and failed or why they reasonably appear to be unlikely

to succeed if tried or to be too dangerous.”13 To satisfy this

requirement, the applicant must demonstrate that normal

investigative techniques, employing a normal quantity of resources,

have not made a case for prosecution within a reasonable period of

time.14 We make that determination on a flexible, case-by-case

basis: “What the provision envisions is that the showing be tested

in a practical and commonsense fashion.”15

Here, the applications asserted that “[n]ormal investigative

techniques have been tried, have not been successful, and appear

12
United States v. Tomblin, 46 F.3d 1369, 1376 (5th Cir.
1995).
13
18 U.S.C. § 2518(1)(c) (2001).
14
United States v. Krout, 66 F.3d 1420 (5th Cir. 1995).
15
United States v. Hyde, 574 F.2d 856, 867 (5th Cir. 1978).

10
reasonably unlikely to succeed under the circumstances of this

investigation.” The supporting affidavits of the applying officers

asserted that “[e]mployment of normal investigative techniques,

i.e. normal surveillance, confidential informants, has not resulted

in the direct evidence to determine the inner operations of this

operation” and that a wiretap was the only remaining alternative

not yet employed. The affidavits stated that “[n]ormal

investigative techniques have not resulted in the arrest of

individuals within this organization who are willing to testify

against the remaining members of the organization,” that

confidential informants were unwilling to testify, and that

interviews with those informants would be unsuccessful because the

“persons knowledgeable about narcotic transactions or the contents

of conversations regarding illicit transactions are the parties who

are direct participants and targets of this investigation.”

The agents further explained in their affidavits that not only

were confidential informants unwilling to testify but their

information had proven to be unreliable, and, moreover, such

testimony, without corroboration by evidence gathered by wiretap,

would be insufficient for a successful prosecution. They also

stated that it would be impossible for an undercover agent to

infiltrate the organization because Cage was wary of meeting new

persons and there was “no informant in a position to introduce an

undercover agent to the members of the organization.”

These statements do not merely reflect in conclusory fashion

11
that a wiretap was necessary here, as Defendants contend, but

instead explain precisely which techniques had been unsuccessful

and why. In United States v. Krout, we upheld a wiretap

authorization order on facts similar to those present here.

Notably, we stated that:

The affidavits contained detailed accounts of the
investigative techniques . . .. Specifically, the
affidavits asserted that informants or undercover agents
could not infiltrate the conspiracy at high enough levels
to obtain sufficient evidence to prosecute managers of
the organization. This court has previously affirmed
wiretap orders based upon similar affidavits.16 These
affidavits amply established an inability to fully
develop a case from informants’ knowledge, inability to
infiltrate with undercover agents, lack of access to
primary targets, the limited value of searches in proving
these offenses, and informants’ fear and unwillingness to
testify.17

The instant facts fall well within the boundaries established in

Krout. We conclude therefore that the district court did not

clearly err in denying Defendants’ motion to suppress the wiretap

evidence on this ground.

Defendants also contend that the wiretap order violated

Louisiana law, rendered applicable by 18 U.S.C. § 2516(2). It

specifies that when a wiretap order is sought in state court, as is

the case here, the state judge may authorize a wiretap “in

conformity with section 2518 of this chapter and with the

16
Krout, 66 F.3d at 1425 (citing United States v.
Guerra-Marez, 928 F.2d 665, 671 (5th Cir. 1991); United States v.
Webster, 734 F.2d 1048, 1055 (5th Cir. 1984)).
17
Krout, 66 F.3d at 1425

12
applicable state statute.”18 Defendants contend that the wiretap

was authorized in violation of Louisiana law because there is no

evidence that the authorizing judge examined the confidential

informants, as required by La. R.S. 15:1310(A)(3). Because

Defendants did not raise this issue before the district court,

merely challenging the admission of the wiretap evidence generally

and on other grounds, we review this claim for plain error.19 Under

that standard, we may reverse a district court’s decision only if

we conclude that (1) the district court committed an error, (2)

that was clear and obvious, and (3) that affected a defendant’s

substantial rights.20 Only if these elements are satisfied may we

exercise our discretion to correct the error, and then only if it

“‘seriously affect[s] the fairness, integrity, or public reputation

of judicial proceedings.’”21

“Error is defined as a deviation from a legal rule in the

absence of a valid waiver.”22 We cannot credit the government’s

argument that Defendants’ failure to raise this issue before the

18
United States v. Nelligan, 573 F.2d 251, 254 (5th Cir. 1978)
(holding that 28 U.S.C. § 2516 explicitly “provides for state
court authorizations of interceptions [to be conducted] in
conformity with the applicable state statute”).
19
United States v. Calverley, 37 F.3d 160, 163 (5th Cir. 1994)
(en banc); United States v. Buchanon, 72 F.3d 1217 (6th Cir. 1995).
20
United States v. Dupre, 117 F.3d 810, 817 (5th Cir. 1997).
21
Calverley, 37 F.3d at 164 (quoting United States v. Olano,
507 U.S. 725, 732 (1993)).
22
Calverley, 37 F.3d at 162.

13
district court constitutes waiver of the district court’s error;

instead, we perceive this to be an instance of forfeiture.

“Waiver, the intentional relinquishment or abandonment of a known

right is distinguishable from forfeiture, the failure to make the

timely assertion of a right. Whereas the former results in no

error, the latter does not extinguish the error . . . [and] may be

reviewable [under the plain error standard] if it qualifies.”23

Clearly, this is an instance when Defendants did not knowingly

relinquish their claim but merely failed timely to register their

objection.

Under these conditions we must first ask whether the district

court’s denial of Defendants’ motion to suppress the wiretap

evidence was error at all. The Louisiana Supreme Court has

interpreted La. R.S. 15:1310(A)(3) as requiring that information

garnered via the wiretap authorization be suppressed only when (1)

the authorizing judge fails to examine the confidential informants

and (2) the confidential informants’ information is essential to

the requisite probable cause finding.24 Our examination of the

record indicates that it is likely that both prongs are satisfied

here: Not only did the state judge fail to examine the confidential

informants but it appears that their information was essential to

23
Calverley, 37 F.3d 162 (internal quotations and citations
omitted).
24
State v. Neisler, 98-1384 (La. 1/16/96) 666 So.2d 1064,
1068-69.

14
the finding of probable cause on which the wiretap authorization

was based. We therefore assume that the district court’s failure

to suppress the wiretap evidence was error.

Our next plain error inquiry is whether this error was

“plain,” that is, whether the error was “‘obvious,’ ‘clear,’ or

‘readily apparent.’”25 Put another way, plain errors “are errors

which [sic] are so conspicuous that ‘the trial judge and prosecutor

were derelict in countenancing [them], even absent the defendant’s

timely assistance in detecting [them].’”26 Defendants have failed

to establish that the instant error satisfies this standard. The

error complained of was essentially a violation of state law, made

applicable by the relevant federal wiretap statute. The error was

not apparent on the face of the wiretap authorization which, to the

contrary, was supported by probable cause and valid under all

federal law excepting the provision that makes the Louisiana

statute applicable. It would be unreasonable to expect a federal

district court (or even a federal prosecutor) to be sufficiently

aware of Louisiana state law to notice this defect on its own.

This is especially true given that Defendants, represented by

Louisiana counsel, not only failed to raise this claim before the

district court but argued strenuously for suppression of the

wiretap evidence solely on the ground that the federal “necessity”

25
Calverley, 37 F.3d at 163 (internal citations omitted).
26
Id. (quoting United States v. Frady, 456 U.S. 152, 163
(1982)).

15
requirement had not been met. This technical, state-law defect in

the wiretap evidence was anything but “obvious” or “readily

apparent.”27

C. Sentencing

Defendants raise several challenges, both individual and

common, to the district court’s sentencing determinations. We

examine “the district court’s interpretation or application of the

sentencing guidelines de novo and its findings [of fact] . . . for

clear error.”28 For sentencing purposes, the district court need

only determine its factual findings “by a preponderance of the

relevant and sufficiently reliable evidence.”29

1. Quantity of cocaine involved

Defendants, for different reasons, contest the district

court’s finding that the quantity of drugs attributable to them for

sentencing purposes is between two and 3.5 kilograms. United

States Sentencing Guidelines (“USSG”) § 1B1.3(a)(1)-(2) provides

that a defendant’s sentence is to be determined on the basis of all

27
We note that even if we were to conclude that the instant
error was “plain” and, moreover, that it affected Defendants’
substantial rights, we would decline to exercise our discretion to
reverse the district court’s refusal to suppress the wiretap
evidence because this error is not one that calls into doubt the
“‘fairness, integrity, or public reputation of judicial
proceedings.’” Calverley, 37 F.2d at 64 (quoting United States v.
Atkinson, 297 U.S. 157, 160 (1936)).
28
United States v. Huerta, 182 F.3d 361, 364 (5th Cir. 1999).
29
United States v. Huskey, 137 F.3d 283, 291 (5th Cir. 1998).

16
criminal acts he participated in during the offense of conviction

as well as all criminal acts that were part of the same course of

conduct as the offense of conviction. Defendants were convicted of

individually possessing with the intent to distribute and

conspiracy to possess with the intent to distribute cocaine over an

extended period of time, encompassing several distinct

transactions. The district court made its determinations of drug

quantity by adopting the presentencing report (“PSR”), finding that

the PSR was well-supported by the evidence adduced at trial.

The PSR stated that it was accurate to hold Cage responsible

for between two and 3.5 kilograms by adding (1) the two kilograms

he was found with on his return trip from Houston, (2) “the ½

kilogram that he obtained from an unindicted coconspirator and

[(3)] the fourteen ounces [392 grams] that he sold to Calvin Brown

during the course of the conspiracy.” Cage objects to this

finding, contending that the district court clearly erred in

finding that the packages found in his possession when he was

stopped on his return from Houston contained two kilograms of

cocaine. He argues that the district court had no basis for that

finding because only one of the packages was tested for cocaine and

that neither was weighed. Therefore, he contends, the record at

best supports an inference that the packages amounted to

approximately 1½ kilograms because that was the amount Easterling,

the apparent prospective purchaser of these packages of cocaine,

testified that he was buying.

17
 We note first that the district court was well within its

discretion in crediting the testimony of the forensic chemist from

the Louisiana Police Crime Lab that both packages had been tested

(positively) for cocaine. Cage correctly points out, however, that

there is no proof in the record that the packages were ever

weighed. Although Cage argues on appeal that he properly objected

to the district court’s adoption of the PSR’s finding of the weight

of those packages,30 our conclusion need not turn on the efficacy

of Cage’s purported objection: His claim fails on the merits as

well. The record contains sufficient evidence to support a

conclusion by the district court that the packages contained at

least 1.5 kilograms, as Cage concedes. In conjunction with the

court’s other undisputed findings, the record clearly contains

sufficient evidence to support the finding that Cage should be held

responsible for more than two kilograms of cocaine.

30
Cage did argue before the district court, during sentencing,
that the government had not presented evidence that the packages in
question had been weighed. However, he did not do so in the
context of objecting to the PSR’s finding regarding the quantity of
drugs but rather in the course of arguing for a sentencing
reduction for an acceptance of responsibility. Specifically, he
argued that he was willing to enter into a plea bargain for the
quantity of drugs that he was charged with and ultimately convicted
for being responsible for —— between two and 3.5 kilograms —— but
was unwilling to accept the government’s plea offer because it
required him to accept responsibility for five kilograms of
cocaine. In the course of his explanation of why accepting
responsibility for that larger amount was unacceptable to him, he
mentioned in passing that even though the government had not shown
at trial that he should be responsible for even two kilograms, he
had been willing to acknowledge responsibility for two to 3.5
kilograms, implying the accuracy of that range.

18
 The district court found that Cage was responsible for at

least 0.9 kilograms of additional cocaine. This finding was

adopted by the district from the PSR, specifically its statement

that Cage had obtained one-half a kilogram from an unindicted

coconspirator and had sold at least 14 ounces (392 grams) to Brown.

“The PSR generally bears sufficient indicia of reliability to be

considered as evidence by the district court in resolving disputed

facts. A district court may thus adopt facts contained in the PSR

without further inquiry if the facts have an adequate evidentiary

basis and the defendant does not present rebuttal evidence.”31

Because Cage presents no such rebuttal evidence regarding the

attribution of the one-half kilogram that he is said to have

obtained from the unindicted coconspirator or the 392 grams that he

allegedly sold to Brown, the district court was free to adopt the

PSR’s finding.

Accordingly, we find that the district court did not clearly

err in adopting the PSR’s findings that Cage was responsible for

more than two kilograms of cocaine. In combination with the

finding that Cage possessed approximately 1.5 kilograms when his

vehicle was stopped, the finding that he was responsible for an

additional 0.9 kilograms clearly supports the district court’s

determination that Cage was responsible for more than two kilograms

of cocaine.

31
United States v. Brown, 54 F.3d 234, 241 (5th Cir. 1995)
(citations omitted).

19
 As for Brown, he too contests the district court’s attribution

to him of more than two kilograms of cocaine. The court predicated

its findings on the PSR’s conclusion that Brown should be found

responsible for at least two kilograms of cocaine, based on (1) the

approximately 1.5 kilograms32 that Cage obtained in Houston and was

arrested with, (2) the 14 ounces (392 grams) that Brown purchased

from Cage during the conspiracy, and (3) the two ounces (56 grams)

discarded by Brown while he was being chased immediately prior to

his arrest.

For sentencing purposes, a defendant convicted of being part

of a drug conspiracy is responsible not only “for the drugs with

which [he] was directly involved but also those that can be

attributable to him as part of his ‘relevant conduct’ under § 1B1.3

of the Sentencing Guidelines.”33 “Relevant conduct” includes

“reasonably foreseen acts and omissions of others in furtherance of

the jointly undertaken criminal activity.”34

Brown first argues that the district court committed clear

32
Brown does not challenge the weight of the packages of
cocaine that Cage was found to have in his possession. As we
discussed regarding the quantity of drugs for which Cage was held
responsible, for sentencing purposes, the district court found that
those packages contained two kilograms of cocaine. Because the
issue is slightly in doubt but is ultimately immaterial to our
inquiry, however, we will assume that the packages of cocaine
weighed only 1.5 kilograms of cocaine, the amount that Cage
concedes they contained.
33
United States v. Gallardo-Trapero, 185 F.3d 307, 325 (5th
Cir. 1999).
34
USSG § 1B1.3.

20
error in finding that it was foreseeable to him that Cage would

obtain 1.6 kilograms of cocaine from his source in Houston. Brown

points out that (1) the agent who testified regarding the meaning

of the wiretap conversations stated that he did not think Brown

knew that Cage was going to Houston to obtain cocaine from his

supplier, and (2) the wiretap evidence produced by the government

did not show that Brown knew Cage was going to Houston to obtain

cocaine. This argument misapprehends the applicable law. Although

it is unlikely that Brown knew all the details of Cage’s plans or

the quantities of cocaine Cage intended to procure from his

sources, the district court was only required to find that Brown

was aware that Cage undertook other actions in furtherance of the

conspiracy, especially plans and actions to obtain cocaine from his

sources. Such a finding is well supported by the evidence.

Brown next challenges the sentencing court’s finding that he

had purchased 14 ounces of cocaine from Cage, a finding based on

police analysis of the wiretap conversations. Again, we disagree.

The district court was free to infer, as did the jury, that the

numbers discussed during the recorded conversations referred to

money and drugs. Moreover, Brown’s contentions to the contrary

notwithstanding, the wiretap evidence reasonably supports the PSR’s

conclusion that Brown purchased at least 14 ounces of cocaine from

Cage because the district court was free to credit the agent’s

testimony to that effect, including his interpretation of the

“coded” recorded conversation. As with Cage, in combination these

21
separate findings support the district court’s determination that

Brown was responsible for more than two kilograms of cocaine.

The district court’s finding of drug quantities for which

Defendants should be held responsible is reasonably supported by

the record evidence or, in some instances, by unchallenged

statements of the PSR. We are satisfied not only that the district

court did not commit clear error in attributing between two and 3.5

kilograms of cocaine to both Brown and Cage, but that the court

affirmatively reached the correct results.

2. Defendants’ Apprendi Claims

We review “the defendants’ challenges to their sentences for

plain error in light of their failure to raise the objections

below.”35

Defendants argue that, in two respects the district court’s

determination of the quantity of cocaine involved without

submitting the issue to the jury, resulted in their being sentenced

in violation of their constitutional rights as clarified by the

Supreme Court in Apprendi v. New Jersey.36 They first challenge

their respective terms of imprisonment, although in doing so, they

35
United States v. Meshack, 225 F.3d 556, 575 (5th Cir. 2000),
cert. denied, 121 S.Ct. 834 (2001), petition for reh’g, 244 F.3d
367 (citing Johnson v. United States, 520 U.S. 461, 467 (1997)
(reviewing for plain error even though the case on which the
defendants relied had not been decided at the time of trial)).
36
530 U.S. 466 (2000).

22
expressly concede that this argument is barred by our recent

precedent applying Apprendi to similar cases.37 As we are bound by

this precedent, we are precluded from considering these claims.

We do, however, find merit in Brown’s claim that the district

court committed plain error by sentencing him to eight years of

supervised release as specified in 21 U.S.C. § 841(b)(1)(B) (the

penalty provision corresponding to § 841(a)(1) requiring a showing

that the defendant’s drug offense involved between at least 500

grams of cocaine). Because Apprendi requires that Brown be

sentenced under § 841(b)(1)(C) (the penalty provision corresponding

to § 841(a)(1) which does not require the showing of a quantity of

drugs) and that provision, as interpreted by our decision in United

States v. Meshack,38 allows a maximum of six years’ supervised

release irrespective of drug amount —— in light of the fact that he

was convicted of a prior offense39 —— Brown’s eight-year term of

supervised release cannot stand. Therefore, because Brown was

37
See, e.g., United States v. Doggett, 230 F.3d 160 (5th Cir.
2000); United States v. Keith, 230 F.3d 784 (5th Cir. 2000).
38
225 F.3d 556 (5th Cir. 2000).
39
Meshack, 225 F.3d at 578. There, we reconciled the apparent
discrepancy between the requirement of 21 U.S.C. § 841(b)(1)(C)
that the period of supervised release be “at least 6 years”
(emphasis added) and the requirement of the applicable sentencing
guideline, 18 U.S.C. § 3583(b)(2), that the period of supervised
release be “no more than five years” (emphasis added) permitting a
defendant convicted pursuant to § 841(b)(1)(C) to be sentenced to
no more than six years of supervised release. 225 F.3d at 578
(citing United States v. Kelly, 974 F.2d 22, 24-25 (5th Cir.
1992)).

23
sentenced to an eight-year term of supervised release, the district

court plainly erred.40

Although Cage did not expressly raise a similar objection, he

did voice a general challenge that his term of imprisonment

violated Apprendi. It is at least arguable that this challenge

should be construed as encompassing any and all Apprendi errors

committed by the district court in the course of sentencing Cage.

Moreover, even if the manner in which Cage presented this challenge

was too general to have raised the specific issue of Apprendi’s

effect on his term of supervised release, “we have discretion to

suspend the Federal Rules of Appellate Procedure ‘for good cause

shown.’”41 On those occasions in which we are concerned that it

would be “anomalous” to correct an error preserved as to only one

defendant “when all defendants suffer from the same error, we

consider the argument[] to be adopted [by all]. This adoption does

not prejudice the government which had the opportunity to fully

brief all issues in response to the various contentions of the

defendants.”42 We find this to be an appropriate instance in which

to exercise that discretion.

As with Brown, Apprendi requires us to consider Cage’s

conviction as occurring pursuant to § 841(b)(1)(C) which, under our

40
Meshack, 225 F.3d at 578.
41
United Sates v. Gray, 626 F.2d 494, 497 (5th Cir. 1980).
42
Id. (citations omitted).

24
interpretation of Apprendi in United States v. Meshack,43 here

allows for a maximum period of supervised release of six years. We

are therefore constrained to conclude, as we did with Brown, that

the district court plainly erred in sentencing Cage to eight years

of supervised release. We thus vacate the terms of supervised

release of both Defendants and remand to the district court so that

it may modify this aspect of their sentences in accordance with our

decisions in Meshack and United States v. Kelly,44 to fall somewhere

from the minimum term of five years specified in 18 U.S.C.

§ 3583(b)(2) (the applicable sentencing guideline provisions for

class B felonies, the offense class under which a violation of §

841(b)(1)(C) falls) to the maximum of six years specified in §

841(b)(1)(C).

3. Cage’s Role as a Leader/Organizer

Cage asserts that the district court erred in assessing him a

two level increase for his role as a leader/organizer pursuant to

USSG § 3B1.1. He essentially argues that the record evidence,

which he insists demonstrates only that he purchased and re-sold

cocaine, is insufficient to support the district court’s

determination that he was a leader/organizer and the resulting

imposition of a two level increase of his offense level. Such an

43
225 F.3d 556 (5th Cir. 2000).
44
974 F.2d 22 (5th Cir. 1992).

25
adjustment “is proper only if [Cage] was ‘the organizer or leader

of at least one other participant in the crime and if he asserted

control or influence over at least that one participant.’”45 We

have previously observed that

[t]he commentary to sentencing guideline section 3B1.1
suggests that the court consider the following factors in
making the organizer, leader, manager, supervisor
determination: (1) the exercise of decision-making
authority; (2) the nature of participation in the
commission of the offense; (3) the recruitment of
accomplices; (4) the claimed right to a larger share of
the fruits of the crime; (5) the degree of participation
in planning or organizing the offense; (6) the nature and
scope of the illegal activity; and (7) the degree of
control and authority exercised over others.46

With these factors in mind, we conclude that the district court did

not clearly err in determining that the evidence adduced at trial

demonstrated that Cage was a leader/organizer within the meaning of

USSG § 3B1.1. The wiretap recordings show that Brown reported his

progress to Cage on a number of occasions and that Cage instructed

Brown as to amounts owed and the actions he was to take in

furtherance of the drug conspiracy. Moreover, when Brown confirmed

to Cage and Easterling the poor quality of some cocaine, he did so

at Cage’s direction. The district court was on firm ground in its

assessment of Cage’s role in the conspiracy.

45
United States v. Perkins, 105 F.3d 976, 980 (5th Cir. 1997)
(quoting United States v. Jobe, 101 F.3d 1046, 1065 (5th Cir.
1996)).
46
United States v. Barretto, 871 F.2d 511, 512 (5th Cir. 1989)
(quoting Application Note 3, S 3B1.1).

26
C. Cage’s Ineffective Assistance of Counsel Claim

Cage contends, for the first time on appeal, that he was

prejudiced by the ineffective assistance provided by his counsel,

in violation of his Sixth Amendment rights.47 “The general rule in

this circuit is that a claim of ineffective assistance of counsel

cannot be resolved on direct appeal when the claim has not been

raised before the district court since no opportunity existed to

develop the record on the merits of the allegations.”48 We have

“undertaken to resolve claims of inadequate representation on

direct appeal only in rare cases where the record allowed us to

evaluate fairly the merits of the claim.”49 Because Cage did not

raise this issue before the district court and the record is not

sufficiently developed to allow us to review his claim, we decline

to do so. We therefore dismiss his claim without prejudice to his

right to raise the issue in an application for collateral relief

under 28 U.S.C. § 2255.50

III. Conclusion

47
See Strickland v. Washington, 466 U.S. 668 (1984).
48
United States v. Higdon, 832 F.2d 312, 313-14 (5th Cir.
1987); see also United States v. Glinsey, 209 F.3d 286, 392 (5th
Cir. 2000).
49
Higdon, 832 F.2d at 314.
50
Id. at 314 (citing United States v. McClure, 786 F.2d 1286,
1291 (5th Cir. 1986); United States v. Rodriguez, 582 1015, 1016
(5th Cir. 1978)).

27
 Defendants challenge their drug convictions on numerous

grounds. We hold these challenges to be without merit, concluding

that there is sufficient evidence to support Defendants’

convictions. We also hold that the district court did not clearly

err in (1) refusing to suppress the wiretap evidence, (2)

determining the quantity of drugs for which each defendant was

responsible, and (3) assessing Cage a two level increase for his

role as a leader/organizer. We do find merit, however, in

Defendants’ claims that they were sentenced in violation of their

constitutional rights as clarified in Apprendi, but only as far as

supervised release is concerned. We therefore vacate the

supervised release portion of the sentences and remand to the

district court to modify Defendants’ sentences accordingly.

Finally, we agree with the government that it would be

inappropriate for us to review Cage’s ineffective assistance of

counsel claim at this juncture, so we dismiss that claim without

prejudice. In sum, we affirm Defendants’ convictions, and we

affirm their sentences in all respects other than their terms of

supervised release, which we vacate and remand to the district

court for modification consistent with this opinion and for

resentencing to supervised release as thus modified.

AFFIRMED in part; VACATED and REMANDED in part.

28