United States Court of Appeals
Fifth Circuit
F I L E D
April 22, 2003
IN THE UNITED STATES COURT OF APPEALS Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
No. 02-50423
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID EARL MAJORS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. W-00-CR-28-2
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Before REAVLEY, JOLLY, and JONES, Circuit Judges.
PER CURIAM:
David Earl Majors appeals his conviction and sentence
after a jury trial for possession of cocaine with intent to
distribute in violation of 21 U.S.C. § 841(a)(1). We affirm.
BACKGROUND
On March 23, 2000, members of the Waco Police
Department's Drug Enforcement and Special Operations Units executed
a search warrant for narcotics at the residence of James Murphy
Gilbert. Officer Ben Rush was responsible for securing people in
the residence and ensuring that no weapons were present. Rush
encountered Majors in the kitchen area; he knew that Majors had a
criminal record for drugs, weapons charges, and theft.
Upon ordering Majors to the ground, handcuffing him, and
conducting a quick patdown for weapons, Rush felt a large bulge in
the left pocket of Majors’s baggy shorts. Unable to identify the
bulge, Rush pulled up the outside of Majors’s pocket to see what
was inside. He testified that there was no other reasonable way to
verify that the bulge was not a weapon.
Inside the pocket, Rush saw a plastic bag filled with
smaller plastic bags containing white powder. Satisfied that the
bulge was not a weapon, Rush did not remove anything at that time.
Instead, he informed another police officer nearby that Majors
possessed suspected narcotics. When a Drug Enforcement Unit
Officer searched Majors’s pockets, he did not find the package that
Rush had seen, but it turned up on a staircase where Majors had
been leaning against the banister while waiting to be moved into
another room of the house. Rush testified that the package found
on the staircase was the same package he had seen in Majors’s
pocket. Police later determined that the package contained
approximately 6.21 grams of cocaine.
The district court denied appellants’ two motions to
suppress and, after a jury found him guilty, sentenced Majors to
262 months in prison, six years' supervised release, a $3,000 fine,
and a $100 special assessment.
2
DISCUSSION
Self-representation
Majors first argues that the district court denied him
his Sixth Amendment right to self-representation. The denial of a
defendant’s right to represent himself, if established, requires
reversal without a harmless error analysis. Moreno v. Estelle, 717
F.2d 171, 173 n.1 (5th Cir. 1983).
Prior to trial, Majors’s court-appointed attorney, Lisa
Kubala, moved to withdraw as counsel. The district court denied
the motion, noting that Kubala was Majors’s third attorney. On the
day of trial, Majors gave the court a letter complaining about
Kubala’s representation but did not mention anything about self-
representation. During trial, Bob Barina, a partner at Kubala’s
law firm, assisted Kubala by examining the witnesses. Before
closing arguments on the second day of trial, Barina informed the
court that Majors was dissatisfied with Barina’s performance and
that Majors wished either to retain counsel or make the closing
argument himself.
Although Majors complains of being represented by an
attorney who was neither retained by him nor appointed by the
court, this circumstance is irrelevant. The district court
properly denied his request to represent himself as untimely.
Brown v. Wainwright, 665 F.2d 607, 611 (5th Cir. 1982)(en banc)
(denying defendant’s request to assume his own defense as untimely
on the third day of trial prior to closing arguments). Moreover,
3
Majors’s request was not unequivocal as it was for either new
counsel or permission to make the closing argument. United States
v. Martin, 790 F.2d 1215, 1218 (5th Cir. 1986) (the request to
proceed pro se must be clear and unequivocal).
Motions to suppress
Majors argues that the district court erred by denying
his motions to suppress. In reviewing the denial of a motion to
suppress, the district court’s factual findings are reviewed for
clear error and the legal conclusions are reviewed de novo. United
States v. Smith, 273 F.3d 629, 632 (5th Cir. 2001). The evidence
is viewed in the light most favorable to the prevailing party. Id.
Majors first contends that because the government could
not produce the search warrant for Gilbert’s house, it could not
show that there was probable cause or reasonable suspicion for Rush
to put Majors on the floor, handcuff him, and pat him down for
weapons. We note initially that Majors lacked standing to contest
the existence of the warrant, since he was neither an owner nor
occupant of the house, but merely a visitor. Minnesota v. Carter,
525 U.S. 83, 90, 119 S.Ct. 469, 473, 142 L.Ed.2d 373 (1998).
Nevertheless, the existence of a warrant was not a sine qua non to
the officer’s frisking or handcuffing Majors. Although the actual
warrant for entering the house was lost, nothing in the record
suggests that the warrant did not exist at the time of the search.
Furthermore, the officers’ testimony demonstrates that they
believed they were executing a valid warrant to search for drugs.
4
“Under the good faith exception to the exclusionary rule, evidence
is not to be suppressed . . . where it is discovered by officers in
the course of actions that are taken in good faith and in the
reasonable, though mistaken, belief that they are authorized.”
United States v. De Leon-Reyna, 930 F.2d 396, 400 (5th Cir.
1991)(en banc)(internal quotation marks and citation omitted).
Rush was executing a search for drugs under the good
faith belief that the search was authorized by a warrant. Based on
his knowledge of Majors’s history of narcotics and weapons
offenses, it was reasonable to believe that Majors might be armed.
See United States v. Dixon, 132 F.3d 192, 197 (5th Cir. 1997)
(“This Circuit has explicitly recognized that firearms are ‘tools
of the trade’ of those engaged in illegal drug activities . . . .”)
(internal quotation marks and citation omitted)). Rush’s patdown
for weapons was reasonable.
Majors further argues that even if a warrant existed,
Rush exceeded the scope of a reasonable search because he could not
have reasonably believed that the bulge in Majors’s pants was a
weapon. Majors relies on Minnesota v. Dickerson, 508 U.S. 366,
378-79, 113 S. Ct. 2130, 2138-39, 124 L. Ed. 2d 334, 347-48 (1993),
where the Supreme Court held that an officer’s “plain feel” seizure
of cocaine violated Terry because the officer manipulated a lump in
the defendant’s pocket after he knew that the lump was not a
weapon. Majors fails to recognize that “so long as an officer is
investigating an object that reasonably may be a weapon, the Terry
5
search may continue.” United States v. Maldonado, 42 F.3d 906, 909
(5th Cir. 1995); see also United States v. Campbell, 178 F.3d 345,
349 (5th Cir. 1999) (holding that an officer “had not ruled out the
possibility that the large bulge was a weapon, and his removal of
the pocket’s contents was not beyond the scope of a permissible
Terry frisk”).
Unlike the officer in Dickerson, Rush did not rule out
the possibility that the bulge in Majors’s pocket was a weapon; his
continued search of Majors’s pocket was therefore justified under
Terry for the protection of himself and the other officers in the
house. The bulge in Majors’s pocket was “bigger than a softball”
and “in between hard and soft.” Although Rush could not feel a
knife in Majors’s pocket, he could not tell if there was a another
weapon in the bulge. Cf. Maldonado, 42 F.3d at 909 (officer
wondering if a bulge in a boot was a grenade). Rush testified that
apart from looking inside Majors’s pocket, there was no other
reasonable way to determine if a weapon was present. Viewed in the
light most favorable to the Government, Rush had not ruled out the
possibility that the bulge was a weapon, nor had he ruled out that
the softball size item in Majors’s pocket might conceal a weapon.
Consequently, he could continue the search beyond the initial
“plain feel.”1
1
Pursuant to Federal Rule of Appellate Procedure 23(j),
Majors asked this court to take notice of United States v.
Casado, 303 F.3d 440 (2d Cir. 2002), in which the Second Circuit
recently held that an officer’s search of the defendant’s pocket
violated the Fourth Amendment. Casado, however, is
6
Sufficiency of the evidence
Majors next challenges the sufficiency of the evidence to
establish that the cocaine seized was intended for distribution.
“[W]e must determine whether any reasonable trier of fact could
have found that the evidence established the essential elements of
the offense beyond a reasonable doubt.” United States v. Reyna,
148 F.3d 540, 543 (5th Cir. 1998). “All credibility determinations
and reasonable inferences are to be resolved in favor of the
verdict.” United States v. Resio-Trejo, 45 F.3d 907, 911 (5th Cir.
1995).
Majors argues that Johnson’s testimony is insufficient to
establish intent to distribute because he testified only that the
manner in which the cocaine was packaged in smaller individual bags
usually indicates that it is for distribution. Intent to
distribute, however, may also be inferred from “the presence of
distribution paraphernalia, large quantities of cash, or the value
and quality of the substance.’” United States v. Munoz, 957 F.2d
171, 174 (5th Cir. 1992). No minimum quantity of the controlled
substance is required. Id.
Johnson testified that the plastic bag contained
approximately 25 smaller bags of cocaine, each with a street value
distinguishable from the present case. In Casado, the officer
reached into the defendant’s pocket and removed a pager, cash,
and crack cocaine without first conducting any type of pat down.
In this case, Rush conducted a pat down, identified a bulge that
reasonably could have been a weapon, and then proceeded to look
into Rush’s pocket.
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of $30-40 dollars. Johnson further testified that a knife and
scale box were found in the house and that scales are usually used
to weigh drugs and to break them down into smaller portions. Based
not only on the packaging of the cocaine, but also on its value and
the presence of the knife and scale in the house, a rational jury
could have found beyond a reasonable doubt that Majors possessed
the cocaine with an intent to distribute.
Sentence enhancement
Majors next argues that the district court erred by
enhancing his statutory maximum sentence from 20 to 30 years based
on his stipulation to a 1990 felony drug conviction because the
court misinformed him that without a stipulation, proof of the
prior conviction would be placed before the jury. He also argues
that the district court failed to comply with the requirements of
21 U.S.C. § 851(b) by asking him to affirm or deny the prior
conviction before he was convicted by the jury.2
2
21 U.S.C. § 851(b) provides:
Affirmation or denial of previous conviction. If the
United States attorney files an information under this
section, the court shall after conviction but before
pronouncement of sentence inquire of the person with
respect to whom the information was filed whether he
affirms or denies that he has been previously convicted
as alleged in the information, and shall inform him
that any challenge to a prior conviction which is not
made before sentence is imposed may not thereafter be
raised to attack the sentence.
(emphasis added).
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Although the district court did not strictly comply with
21 U.S.C. § 851(b), any error was harmless. In United States v.
Garcia, 954 F.2d 273 (5th Cir. 1992), the district court questioned
the defendant about prior convictions and elicited an admission
regarding the convictions at the rearraignment hearing rather than
after conviction. This court held that because the defendant
failed to comply with the procedures of § 851(c) to challenge the
convictions and never revealed what challenges he was prepared to
level, the district court’s failure to strictly comply with the
warning component of § 851(b) was harmless. Id. at 277-78; see
also United States v. Fragoso, 978 F.2d 896, 902-03 (5th Cir.
1992).
As in Garcia, the record in this case does not indicate
that Majors complied with the procedures of § 851(c) to challenge
the 1990 conviction. Moreover, although he did not wish to
stipulate to the conviction, he did not reveal to the district
court or to this court the basis for any challenge to his prior
conviction. The district court’s failure to comply strictly with
§ 851(b) is harmless.
Double-counting a prior conviction in sentencing
This court reviews the application of sentencing
guidelines de novo. United States v. Cothran, 302 F.3d 279, 286
(5th Cir. 2002). Contrary to Majors’s contention, the district
court did not impermissibly double count his 1990 drug conviction.
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Although the 1990 conviction enhanced his statutory maximum
sentence, it did not increase his criminal history category.
Majors qualified as a career offender under § 4B1.1 based
on prior convictions of robbery and burglary of a habitation.3
Section 4B1.1 automatically sets the criminal history category of
career offenders at VI. Thus, regardless of the fact that Majors’s
presentence investigation report added three points to his criminal
history score for the 1990 drug conviction, Majors’s criminal
history category would have been set at VI due to his status as a
career offender. Moreover, according to the table in Chapter 5,
Part A of the sentencing guidelines, thirteen or more criminal
history points establish a criminal history category of VI; even
without the three points for the 1990 drug conviction, Majors’s
criminal history score would have been 16, and his category would
have been VI. Any double counting would have therefore been
harmless.
For the foregoing reasons, the judgment of the district
court is affirmed.
AFFIRMED.
3
Because this court applies the version of the sentencing
guidelines in effect at the time of sentencing, United States v.
Phillips, 210 F.3d 345, 348 n.1 (5th Cir. 2000), this opinion
references the sentencing guidelines effective as of November 1,
2001. Section 4B1.1 of the sentencing guidelines treats a
defendant as a career offender if 1) he was at least eighteen
years old at the time of the instant offense of conviction, 2)
the offense of conviction is a felony that is a crime of violence
or a controlled substance offense, and 3) he has at least two
prior felony convictions of either a crime of violence or a
controlled substance offense.
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