United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS October 15, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 02-50967
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENNETH DIJON BAKER and
MICHAEL HOLMES,
Defendants-Appellants.
Appeals from the United States District Court
for the Western District of Texas
USDC No. SA-01-CR-579
Before REAVLEY, HIGGINBOTHAM, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Kenneth Baker and Michael Holmes appeal their convictions of
conspiracy to possess and distribute cocaine base. Baker appeals
a second conviction of possession of cocaine base with intent to
distribute. Appellants argue that there is insufficient evidence
to support their convictions. Additionally, Appellants appeal the
district court’s application of the Sentencing Guidelines. Baker
argues that the district court clearly erred by refusing to apply
*
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this opinion should not be published and is not precedent except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.
a two-level downward adjustment for “acceptance of responsibility”
and by applying a two-level upward adjustment for “possession of a
weapon.” Holmes argues that the judge clearly erred by refusing to
apply a two-level downward adjustment for playing a “minor role” in
the crime. For the following reasons, we AFFIRM.
I
“In reviewing an appeal based on insufficient evidence, the
standard is whether any reasonable trier of fact could have found
that the evidence established the appellant’s guilt beyond a
reasonable doubt.”1 This court reviews the evidence in the light
most favorable to the verdict.2 We do not ask “whether the trier
of fact made the correct guilt or innocence determination, but
rather whether it made a rational decision to convict or acquit.”3
II
There was sufficient evidence for the jury to convict the
appellants of all charges. The direct evidence, combined with the
circumstantial evidence, supports each conviction.
A
To convict Baker of possession with intent to distribute
cocaine base in violation of 21 U.S.C. § 841(a)(1) and §
1
United States v. Jaramillo, 42 F.3d 920, 922-23 (5th Cir.),
cert. denied, 514 U.S. 1134 (1995).
2
Id. at 923.
3
Herrera v. Collins, 506 U.S. 390, 402 (1993).
2
841(b)(1)(B)(iii), the government had to prove that the defendant
(1) knowingly, (2) possessed the cocaine, (3) with the intent to
distribute.4 Possession can be actual or constructive.5
Constructive possession may be shown by “ownership, dominion or
control over the contraband, or over the vehicle in which the
contraband was concealed.”6 The offense may be proven by direct or
circumstantial evidence.7 One’s intent to distribute may be shown
by the possession of a large quantity of the drugs.8 Although
possession of a small amount of drugs does not raise an inference
of an intent to distribute,9 “[s]uch a quantity of a controlled
substance ... is sufficient when augmented by ... ‘large quantities
of cash.’”10 A jury found him guilty.
Baker possessed 6.71 grams of crack cocaine in his car. Baker
possessed 7.09 grams of crack cocaine in his bedroom. When asked
4
United States v. Diaz-Carreon, 915 F.2d 951, 953 (5th Cir.
1990).
5
United States v. Skipper, 74 F.3d 608, 611 (5th Cir. 1996).
6
Id.
7
Id. at 611.
8
United States v. Kates, 174 F.3d 580, 582-83 (5th Cir. 1999)
(finding that possession of 19.67 grams of cocaine, divided into
many small rocks, evidenced intent to distribute); United States v.
Mather, 465 F.2d 1035, 1038 (5th Cir. 1972) (possession of 198 grams
established a prima facie case of intent to distribute).
9
Turner v. United States, 396 U.S. 398, 423-35 (1970).
10
Skipper, 74 F.3d at 611 (quoting United States v. Munoz, 957
F.2d 171, 174 (5th Cir.), cert. denied, 506 U.S. 919 (1992)).
3
if he had any other drugs, he stated, “That’s all I have left.”
Control and ownership of the vehicle in which the cocaine was
hidden is sufficient to show knowing possession.11 Baker’s total
amount of crack cocaine was 13.80 grams. The testifying officer
opined that this amount was not for personal use and that the size
of the rocks was consistent with distribution. The possession of
this amount, combined with the large amount of cash found on Baker,
allows a reasonable jury to find an intent to distribute.12
Furthermore, the police found a scale in Baker’s room, which is a
device for distribution, not use. There was a hole in Holmes’s
window large enough for one to pass drugs through. Several people
were seen approaching and leaving the house in short periods of
time. Two loaded guns were found in Baker’s car. The direct
evidence, when coupled with the large amount of circumstantial
evidence, is sufficient to support the verdict.
B
There was sufficient evidence to convict Baker and Holmes with
conspiracy to distribute cocaine base in violation of 21 U.S.C. §
841(a)(1), § 841(b)(1)(B)(iii), and § 846. As discussed in Part A,
the evidence is sufficient to support Baker’s conviction of
possession with intent to distribute. The question of conspiracy
11
Id. at 611.
12
Id. at 611 (quoting United States v. Munoz, 957 F.2d 171,
174 (5th Cir.), cert. denied, 506 U.S. 919 (1992)).
4
is whether Baker had any agreement with Holmes to possess the drugs
with the intent to distribute.
To prove a conspiracy, the government had to prove beyond a
reasonable doubt (1) the existence of an agreement to possess the
crack cocaine with the intent to distribute, (2) knowledge of the
agreement, and (3) voluntary participation in the agreement.13 The
“agreement may be shown by circumstantial evidence such as the
conduct of the alleged participants or evidence of a scheme.”14
Likewise, a defendant’s knowledge and participation may be inferred
from the circumstances.15
It must be said ... that participation in a criminal
conspiracy need not be proved by direct evidence; a
common purpose and plan may be inferred from a
“development and a collocation of circumstances.”16
Otherwise lawful acts may become unlawful when they as a whole
constitute a criminal conspiracy. The law allows these inferences
when dealing with conspiracies because “secrecy is the norm in an
illicit conspiracy.”17
The contents of Baker’s car and bedroom - cocaine, guns, and
a scale - coupled with the contents of Holmes’s bedroom could allow
13
United States v. Polk, 56 F.3d 613, 619 (5th Cir. 1995).
14
United States v. Garcia, 917 F.2d 1370, 1376 (5th Cir. 1990).
15
Id.
16
United States v. Malatesta, 590 F.2d 1379, 1381 (5th Cir.
1979) (quoting Glasser v. United States, 315 U.S. 60, 80 (1942)).
17
United States v. Greenwood, 974 F.2d 1449, 1457 (5th Cir.
1992).
5
a reasonable jury to find a conspiracy to distribute. Crack
cocaine was in both Baker’s and Holmes’s bedrooms. Next to the bag
of crack in Holmes’s dresser was his military identification card
and his credit card. The crack cocaine was packaged in bags
similar to those found in Baker’s possession. The testifying
officer opined that the bags came from the same source. The screen
on Holmes’s window was torn. The floor in Holmes’s room was messy,
but the area around the window was clear. The police witnessed
various people approach the home in a short amount of time and then
leave immediately. The police found no drug paraphernalia, which
would imply recreational use as opposed to distribution.
The government points to further circumstantial evidence to
support the conviction. It notes that (1) the drugs were in the
center console of the car and were accessible by both men; (2) the
second gun was unexplained, so a reasonable juror could conclude
that it belonged to Holmes; (3) the Lexus did not drive erratically
during the one-half mile refusal to pull over, which could lead one
to conclude that Holmes, the passenger, must have helped hide the
drugs and guns; and (4) the key to the glove compartment was found
under Holmes’s headrest, not Baker’s.
The jury heard Holmes’s and Baker’s explanation of each of
these circumstances, it judged their credibility, and convicted
both of them. Credibility determinations and inferences are for
the jury to conclude, and not for the appellate court to second-
6
guess.18 The direct evidence and the accumulation of circumstantial
evidence could lead a rational jury to convict.
III
The district court did not clearly err in any of its
conclusions affecting the Sentencing Guidelines. It found that
Baker did not accept responsibility, that Baker possessed a weapon
while in possession of cocaine, and that Holmes did not play a
minor role. We review these findings for clear error.19
A
The standard of review is extremely deferential when reviewing
a court’s finding regarding “acceptance of responsibility” under §
3E1.1. “Because trial courts are in a unique position to evaluate
whether the defendant has demonstrated acceptance of
responsibility, a district court’s finding on acceptance of
responsibility is examined for clear error but under a standard of
review even more deferential than a pure ‘clearly erroneous’
standard.”20 It is the defendant’s burden to show the adjustment’s
applicability.
18
United States v. Resio-Trejo, 45 F.3d 907, 910 (5th Cir.
1995).
19
United States v. Henderson, 254 F.3d 543, 543 (5th Cir.
2001).
20
United States v. Cano-Guel, 167 F.3d 900, 906 (5th Cir. 1999)
(internal quotation and citation omitted).
7
Section 3E1.1 applies “[i]f the defendant clearly demonstrates
acceptance of responsibility for his offense.”21 However, it “is
not intended to apply to a defendant who puts the government to its
burden of proof at trial by denying the essential factual elements
of guilt, is convicted, and only then admits guilt and expresses
remorse.”22 The comment provides a rare exception to this general
rule when a criminal defendant accepts responsibility for the
conduct but continues to trial nonetheless to preserve issues for
appeal.23
Baker put the government to its proof, so the adjustment is
not intended to apply unless Baker shows his case to be one of the
rare exceptions mentioned in the commentary. His case does not
qualify. The exception applies to those who accept responsibility
but continue to trial only to preserve issues for appeal that do
not relate to his factual guilt. Baker did not accept
responsibility and did not go to trial for issues other than his
factual guilt. Accordingly, the district court did not clearly err
by refusing to apply the two-level downward adjustment.
B
The court did not clearly err by applying a two-level upward
adjustment to Baker’s sentence for possessing a dangerous weapon
21
U.S. SENTENCING GUIDELINES MANUAL § 3E1.1.
22
Id., cmt. 2.
23
Id.
8
while in possession of the cocaine pursuant to § 2D1.1(b)(1) of the
Sentencing Guidelines. A two-level upward adjustment is
appropriate when a defendant possessed a dangerous weapon while
possessing or trafficking drugs.24 A judge’s finding that a
defendant possessed a dangerous weapon under § 2D1.1(b)(1) is a
factual finding reviewed for clear error.25 The government bears
the burden of proof to show a temporal and spatial relation between
the weapon, the drug trafficking, and the defendant.26 This burden
is met if the government shows the gun to be in the same location
as the drugs.27 “The adjustment should be applied if the weapon was
present, unless it is clearly improbable that the weapon was
connected with the offense. For example, the enhancement would not
be applied if the defendant, arrested at his residence, had an
unloaded hunting rifle in the closet.”28
The government met its burden in this case by showing that (1)
Baker possessed cocaine in his car with intent to distribute, and
(2) Baker possessed two guns in the same car. The spatial and
temporal relation requirement is met by the fact that the gun and
24
Id. at § 2D1.1(b)(1).
25
Id.
26
United States v. Vasquez, 161 F.3d 909, 912 (5th Cir. 1998).
27
United States v. Cooper, 274 F.3d 230, 245 (5th Cir. 2001);
United States v. Eastland, 989 F.2d 760, 770 (5th Cir. 1993).
28
U.S. SENTENCING GUIDELINES MANUAL § 2D1.1(b)(1), cmt. 3 (emphasis
added).
9
drugs were both located in the car.29 Based on the close proximity
of the drugs and the guns, the decision to apply the two-level
increase was not clear error.
C
The district court did not clearly err by denying Holmes a
two-level downward adjustment for playing a minor role in the
offense. Section 3B1.2(b) of the Sentencing Guidelines allows a
two-level decrease if “the defendant was a minor participant in any
criminal activity.” A minor participant is one “who is less
culpable than most other participants, but whose role could not be
described as minimal.”30 The district court’s determination is
factual and reviewed for clear error:
The determination whether to apply [§ 3B1.2(b)], or an
intermediate adjustment, involves a determination that is
heavily dependent upon the facts of the particular case.
As with any other factual issue, the court, in weighing
the totality of the circumstances, is not required to
find, based solely on the defendant’s bare assertion,
that such a role adjustment is warranted.31
Usually, courts find criminal participants similarly culpable, and
therefore, this adjustment is applied infrequently.32 The defendant
29
United States v. Cooper, 274 F.3d 230, 245 (5th Cir. 2001);
United States v. Eastland, 989 F.2d 760, 770 (5th Cir. 1993).
30
Id. at § 3B1.2(b), cmt. 5.
31
Id., cmt. 3(C).
32
United States v. Tremelling, 43 F.3d 148, 153 (5th Cir.
1995).
10
must bear the burden of showing that he is “substantially less
culpable.”33
Holmes argues that he was a mere passenger in a drug dealer’s
car, and a mere houseguest in a drug dealer’s house. Further, he
notes that the police found no money on him and that they did not
find a scale in his room. Finally, Holmes argues that the
government itself viewed Holmes as a minor participant by stating
in its closing argument that “a person can play a minor role in a
conspiracy and still be guilty.”
The court heard these arguments but concluded that Holmes was
not a “minor participant” within the meaning of § 3B1.2.
Considering (1) Holmes was in a car containing crack cocaine and
two loaded handguns, (2) Holmes’s bedroom contained crack cocaine
and an open screen, (3) Baker’s bedroom contained crack cocaine and
a scale, (4) multiple people were seen approaching the house and
then immediately leaving within a short period of time, and (5) the
key to the glove box containing the loaded handguns was found under
Holmes’s headrest, the district court did not clearly err.
IV
For the reasons above, we AFFIRM.
33
United States v. Garcia, 242 F.3d 593, 597 (5th Cir. 2001).
11