United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 6, 2005
Charles R. Fulbruge III
Clerk
No. 04-30013
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NAKIA BARNES, also known as 2-2,
Defendant-Appellant.
* * * * *
Consolidated with
No. 04-30014
* * * * *
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES R. NATION, also known as Andre,
Defendant-Appellant.
* * * * *
Consolidated with
No. 04-30110
* * * * *
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARY L. NATION, also known as Marilyn,
also known as Maralyn,
Defendant-Appellant.
No. 04-30013 c/w No. 04-30014 & No. 04-30110
& No. 04-30111 No. 04-30112 & No. 04-30232
-2-
* * * * *
Consolidated with
No. 04-30111
* * * * *
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEE DELL NATION, also known as Pop,
also known as Doom,
Defendant-Appellant.
* * * * *
Consolidated with
No. 04-30112
* * * * *
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KERRY NATION, also known as K-Mac,
Defendant-Appellant.
* * * * *
Consolidated with
No. 04-30232
* * * * *
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
THOMAS EARL NATION, also known as Touche,
Defendant-Appellant.
--------------------
Appeals from the United States District Court
for the Western District of Louisiana
USDC No. 02-CR-30043-9
--------------------
No. 04-30013 c/w No. 04-30014 & No. 04-30110
& No. 04-30111 No. 04-30112 & No. 04-30232
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Before REAVLEY, JOLLY, and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
These consolidated appeals arise out of the prosecution of
various members of a cocaine distribution ring in Farmerville,
Louisiana. Six defendants, Thomas Nation (Thomas), Marilyn Nation
(Marilyn), Kerry Nation (Kerry), Charles Nation (Charles), Nakia
Barnes (Barnes), and Lee Dell Nation (Lee Dell), appeal various
aspects of their convictions and sentences. We GRANT the motion by
the Government to file a supplemental brief in Case No. 04-30112.
Finding no error as to any defendant, we AFFIRM.
Thomas Nation
Thomas was convicted of one count of conspiracy to distribute
50 grams or more of cocaine base and two counts of distribution of
five or more grams of cocaine base. He was sentenced to concurrent
terms of 151 months in prison on all counts. Thomas challenges the
sufficiency of the evidence supporting his conviction, the
constitutionality of the district court’s finding of drug quantity
in light of Blakely v. Washington, 124 S. Ct. 2531 (2004), and the
sufficiency of the evidence supporting the district court’s
sentencing enhancement for possession of a weapon pursuant to
U.S.S.G. § 2D1.1(b)(1).
To support a conviction for a drug conspiracy, the Government
must prove “1) the existence of an agreement between two or more
*
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.
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& No. 04-30111 No. 04-30112 & No. 04-30232
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persons to violate federal narcotics laws; 2) the defendant’s
knowledge of the agreement; and 3) the defendant’s voluntary
participation in the agreement.” United States v. Gonzales, 79
F.3d 413, 423 (5th Cir. 1996). With respect to distribution, a
violation of 21 U.S.C. § 841(a)(1), the Government must prove that
the defendant knowingly distributed cocaine base. United States v.
Gordon, 876 F.2d 1121, 1125 (5th Cir. 1989). Our review of the
record demonstrates that the evidence was sufficient to support the
jury’s verdict. As to the conspiracy count, two witnesses, Nakia
Barnes and Aikeyo Lee, testified that on more than one occasion,
they each bought crack cocaine from various Nation family members
who obtained the crack from Thomas. As to the two possession with
intent to distribute counts, Lee testified that he purchased in
excess of five grams of crack cocaine on two occasions from Thomas.
That testimony was corroborated by the testimony of several law
enforcement officials as well as physical evidence. Although
Thomas attacks Lee’s credibility and the circumstances of the two
drug purchases, it was within the jury’s province to resolve those
issues. See United States v. Bermea, 30 F.3d 1539, 1552 (1994).
With respect to Thomas’s Sixth Amendment argument under
Blakely, which now applies to the federal Sentencing Guidelines,
see United States v. Booker, 125 S. Ct. 738 (2005), our review is
limited to the plain error standard. See United States v. Mares,
402 F.3d 511, 520 (5th Cir. 2005), petition for cert. filed, No.
04-9517 (U.S. Mar. 31, 2005). Thomas cannot meet the third prong
of the plain error test as the record does not indicate that the
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& No. 04-30111 No. 04-30112 & No. 04-30232
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district court would have given Thomas a lower sentence if it had
been operating under an advisory rather than mandatory Sentencing
Guidelines. See id. at 521-22. Accordingly, the district court
did not commit plain error in sentencing Thomas.
Finally, the evidence at the sentencing hearing supported the
§ 2D1.1(b)(1) enhancement. The district court may consider any
relevant evidence without regard to its admissibility at trial,
including uncorroborated hearsay, provided that the information has
sufficient indicia of reliability to support its probable accuracy.
United States v. Gaytan, 74 F.3d 545, 558 (5th Cir. 1996); §
6A1.3(a). A Presentence Report (PSR) generally bears sufficient
indica of reliability to support a district court’s factual
findings. United States v. Ayala, 47 F.3d 688, 690 (5th Cir.
1995).
The PSR states that Thomas was trying to retrieve a gun when
he was arrested and, at the time of his arrest, 1.9 grams of crack
cocaine were found in his house. Thomas PSR ¶¶ 9, 12, 22. In
addition, Thomas was convicted of a crack cocaine distribution
conspiracy that involved the sale of drugs from his home, making
his home the situs of the offense. See United States v. Eastland,
989 F.2d 760, 770 (5th Cir. 1993). Based on those facts, it is not
clearly improbable that the gun was connected to the drug
conspiracy. See United States v. Villanueva, No. 03-20812, 2005 WL
958221 at *8 (5th Cir. Apr. 27, 2005); United States v. Condren, 18
F.3d 1190, 1199-1200 (5th Cir. 1994).
No. 04-30013 c/w No. 04-30014 & No. 04-30110
& No. 04-30111 No. 04-30112 & No. 04-30232
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Accordingly, we AFFIRM the judgment of the district court as
to Thomas Nation.
Marilyn Nation
Marilyn Nation pleaded guilty to one count of conspiracy to
possess with intent to distribute five grams or more of a mixture
containing cocaine base. She admitted to making sales of crack
totaling 51.83 grams. On appeal, she contends that the evidence at
sentencing was not sufficiently reliable to support the drug
quantity attributed to her or a § 3B1.1 enhancement based on her
status as a leader or organizer.
Agent Harry Deal testified that a co-defendant, Jeanette
Thompson, informed him that she had sold crack cocaine on behalf of
Marilyn on four or five occasions, usually in the amount of one
ounce and was paid by Marilyn for doing so. The Presentence Report
employed the lower figure of four ounces in calculating drug
quantity. This evidence is sufficient to support the district
court’s calculation of drug quantity. See Gaytan, 74 F.3d at 558.
As to the § 3B1.1 enhancement, both Jeanette Thompson and
Christopher Warren told Agent Deal that Marilyn and Lee Dell Nation
received cocaine powder from Dallas, cooked it, and distributed it
to other Nation family members for distribution. As noted,
Thompson also told Agent Deal that she sold crack on behalf of
Marilyn on four to five occasions. Although Marilyn attacks the
credibility of Thompson and that of Aikeyo Lee, another witness,
the record as a whole supports the district court’s findings. See
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& No. 04-30111 No. 04-30112 & No. 04-30232
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Villanueva, 2005 WL 958221 at *8; United State v. Turner, 319 F.3d
716, 725 (5th Cir. 2003).
Accordingly, we AFFIRM the judgment with respect to Marilyn
Nation.
Kerry Nation
Kerry Nation pleaded guilty to one count of a bill of
information charging him with conspiracy to possess with intent to
distribute five grams or more of cocaine base. He appeals the
district court’s denial of his motion to withdraw his guilty plea
on the basis that his counsel misinformed him regarding the
applicability of the § 4B1.1 career offender enhancement.
Based on the record before us, we cannot conclude that the
district court abused its discretion in denying the motion to
withdraw. See United States v. Powell, 354 F.3d 362, 370 (5th Cir.
2003). We also decline to address his ineffective assistance of
counsel claim. See United States v. Higdon, 832 F.2d 312, 314 (5th
Cir. 1987). However, we note that our decision is based on the
fact that no evidence was adduced at the hearing on the motion to
withdraw. Counsel made unsworn statements which suggest that Kerry
Nation’s guilty plea was the result of erroneous advice from his
attorney.
As to Kerry’s contention that his sentence should be reversed
in light of Booker, he did not preserve the error, limiting our
review to plain error. See Mares, 402 F.3d at 520. For the same
reasons set forth with respect to Thomas Nation, Kerry fails to
meet the third prong of the plain error test. We AFFIRM the
No. 04-30013 c/w No. 04-30014 & No. 04-30110
& No. 04-30111 No. 04-30112 & No. 04-30232
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judgment of the district court, without prejudice to Kerry’s right
to file a motion pursuant to 28 U.S.C. § 2255 alleging ineffective
assistance of counsel.
Charles Nation
Charles Nation pleaded guilty to a one-count bill of
information charging him with conspiracy to possess with intent to
distribute five or more grams of cocaine base. He challenges his
sentence pursuant to Blakely. As Charles admitted the drug
quantity during his guilty-plea hearing, and as the prior
convictions used to enhance his sentence do not fall within
Booker’s scope, there was no Sixth Amendment violation. 125 S. Ct.
at 756. Further, the district court’s imposition of a sentence
under a mandatory Guidelines regime did not constitute plain error,
as there is no indication in the record that the district court
would have imposed a lower sentence if the Guidelines had been
advisory. See United States v. Valenzuela-Quevedo, No. 03-41754,
2005 WL 941353 at *4 (5th Cir. Apr. 25, 2005). Accordingly, we
AFFIRM the judgment with respect to Charles Nation.
Nakia Barnes
Nakia Barnes pleaded guilty to one count of distribution of
five or more grams of crack cocaine. The district court granted a
§ 5K1.1 motion for downward departure based on Barnes’ substantial
assistance. The court sentenced Barnes to 67 months of
imprisonment, below the sentencing range of 121 to 151 months. It
is not disputed that the sentencing range should have been 108 to
135 months, because the district court did not include in its
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& No. 04-30111 No. 04-30112 & No. 04-30232
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calculation an additional one-point reduction for acceptance of
responsibility that it had previously awarded.
As Barnes did not object to the incorrectly-calculated range,
we review for plain error. Barnes cannot demonstrate that the
error affected his substantial rights because there is no
indication that the error must have affected the outcome of the
proceedings. See Mares, 402 F.3d at 521. Nothing in the record
suggests a reasonable probability that the district court would
have departed further from the correct guideline range. See id. at
521-22. Barnes’ reliance on United States v. Waskom, 179 F.3d 303
(5th Cir. 1999), a harmless error case, and United States v.
Rayford, No. 03-40945 (5th Cir. Jan. 14, 2004), an unpublished and
factually distinguishable opinion, is misplaced. Therefore, we
AFFIRM the judgment with respect to Nakia Barnes.
Lee Dell Nation
Lee Dell Nation pleaded guilty to conspiracy to possess with
intent to distribute five grams or more of cocaine base. He raises
several issues on appeal. The first seven challenge his sentence
pursuant to Blakely. Alternatively, he asserts that the evidence
did not support a § 3B1.1 enhancement based on his status as a
leader or organizer or a § 2D1.1(b)(1) weapons enhancement. As to
Lee Dell’s Blakely challenges, we again review these unpreserved
claims for plain error and, for the same reasons we have
articulated with respect to Thomas and Kerry Nation, Lee Dell fails
to satisfy the third prong of the plain error test.
No. 04-30013 c/w No. 04-30014 & No. 04-30110
& No. 04-30111 No. 04-30112 & No. 04-30232
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We further conclude that the evidence supported the
enhancements. As to the § 3B1.1 enhancement, the same evidence
supporting the enhancement as to Marilyn Nation supports the
enhancement as to Lee Dell Nation. With respect to the
§ 2D1.1(b)(1) enhancement, the PSR determined that a gun was found
in Lee Dell’s truck along with $16,000 in cash and 84 grams of
crack cocaine. Agent Deal also testified that weapons were found
in Lee Dell’s home. This evidence amply supports the enhancement.
See Condren, 18 F.3d at 1199-1200.
We reject Lee Dell’s constitutional challenges to the
disparate treatment of crack and powder cocaine. See United States
v. Wilson, 77 F.3d 105, 112 (5th Cir. 1996); United States v.
Galloway, 951 F.2d 64, 66 (5th Cir. 1992).
For the foregoing reasons, we AFFIRM the judgment of the
district court as to each appellant.
AFFIRMED.