United States v. Christopher M. Dees

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-15107
April 29, 2005
Non-Argument Calendar
THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 03-00127-CR-3-LAC

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CHRISTOPHER M. DEES,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Northern District of Florida
_________________________

(April 29, 2005)

Before HULL, WILSON and FAY, Circuit Judges.

PER CURIAM:
 Christopher M. Dees appeals his jury conviction and sentence for conspiracy

to possess with intent to distribute 5 or more kilograms of cocaine and 50 or more

grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii)-(iii),

and 846. He argues that (1) the evidence was insufficient to support the jury’s

verdict; (2) the district court erred by admitting evidence of his prior drug

convictions under Fed.R.Evid. 404(b); and (3) the district court erred by failing to

rule on and delete a two-level firearm enhancement when calculating his sentence.

Dees also purports to adopt all arguments, points, and authorities cited by other

appellants on “common issues,” including any plain errors, while failing to state in

any detail what those arguments might be. For the reasons stated more fully

below, we affirm Dees’s conviction and sentence.

Dees was indicted, along with eight co-conspirators, on one count of

conspiracy to possess with intent to distribute five or more kilograms of cocaine

and 50 or more grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1),

(b)(1)(A)(ii), (iii), 846. Dees proceeded to trial where a jury convicted him for the

offense as charged in the indictment.

Prior to trial, the government filed two notices of enhancement pursuant to

21 U.S.C. § 851, indicating that Dees would be subject to an enhanced penalty

under 21 U.S.C. §§ 841(b)(1)(A)(ii)-(iii) because Dees’s criminal record included

2
two Florida state convictions for possession of a controlled substance, both of

which were felonies under Florida law. The government also filed a notice of its

intent to introduce at trial, pursuant to Fed.R.Evid. 404(b), the circumstances

surrounding three of Dees’s previous arrests, two of which led to the convictions

outlined in the government’s notice of penalty enhancement.

Dees, after the jury had been empaneled, but before trial had begun, objected

to the government’s use of 404(b) evidence, arguing that the use of such evidence

was inappropriate and prejudicial unless Dees took the stand and testified that he

had never heard of cocaine and did not know what it was. The government

responded that the use of 404(b) evidence helped prove intent and identification,

regardless of whether Dees testified, and that it intended to reserve using the

evidence of Dees’s prior drug-related arrests until other evidence had been

presented to connect the arrests to the facts of the case. The court reserved ruling

on the issue until trial.

At trial, the government relied principally on the testimony of convicted co-

conspirators. First, it called Jafari Williams, serving a 250-month sentence for

conspiracy to distribute cocaine and crack cocaine. In addition, Williams had

several other state felony convictions on his record. Williams’s testimony

established that he (1) knew Dees since childhood; (2) began dealing cocaine in

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2001; (3) first received cocaine from Dees in the latter part of 2002, and continued

to receive cocaine from him in quantities of 14 to 18 ounces, at a price of $14,000

for 18 ounces; (4) met with Dees regularly in the Warrington Village Apartments

in Pensacola; (5) personally saw Dees engaged in selling and pushing cocaine and

crack cocaine, and even shared customers with Dees; (6) occasionally would

supply Dees’s customers and Dees would supply Williams’s customers if either

one ran out of cocaine; (7) rode in automobiles with Dees while Dees was selling

cocaine and supplied Dees with cocaine; (8) witnessed Dees “cook” cocaine

powder into cocaine base; (9) taught Dees how to “cut” his cocaine with baking

soda in order to sell more; (10) shared a motel room with Dees, and had been in

Dees’s house when Dees would package his cocaine for distribution; and (11) saw

Dees with more than one kilogram of cocaine at least nine times.

Williams admitted that he lied to the police about a hotel room key found in

his pocket at the time of his arrest, and went on to testify that the largest purchase

that he and Dees discussed making together was a 30-kilogram buy for $150,000,

which was never consummated. Instead, Dees sold Williams three kilograms of

cocaine for $66,000. Furthermore, both Williams and Dees paid another co-

conspirator, Joseph Grimsley, to “cook” the cocaine into cocaine base because

Grimsley was an “expert.” Williams was also able to identify bags that Dees used

4
to wrap and package his cocaine. Williams further testified that Dees, on several

occasions, left powder cocaine for Williams to sell on his behalf. Ultimately,

Williams testified that, over the course of the conspiracy, Dees sold him about 12

kilograms of cocaine, some of which was seized at the time Williams was arrested.

Dees conducted a thorough cross-examination of Williams, pointing out to

the jury that Williams’s statements to law enforcement regarding his drug dealings

came only after he faced a life sentence, and Williams admitted that his testimony

was offered in order to reduce his sentence. Dees further insinuated that Williams

might have had a “falling out” with him, providing a motive for incriminating

Dees.

The government also called Earl Hudgins, who was arrested the same day as

Williams, and who is serving a 250-month sentence for federal drug charges.

Hudgins testified that he bought crack cocaine from Dees and Williams and

eventually purchased powder cocaine from Dees in order to “cook” it himself and

make a better profit upon resale. He further testified that he only bought powder

cocaine from Dees when Williams had run out, but that he probably bought a total

of 60 cookies of cocaine base directly from Dees. Hudgins also indicated that the

most cocaine powder he ever saw Dees handle was three kilograms involved in a

sale to Williams. Like Williams, Hudgins also used Grimsley as his “cook,” and

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testified that he saw Dees at Grimsley’s house, and that Dees was there to “cook”

cocaine.

As he did with Williams, Dees cross-examined Hudgins thoroughly,

exposing his criminal record, pointing out possible inconsistencies in testimony,

implying that Hudgins’s testimony was offered solely to avoid a sentence of life

imprisonment, and averring that there may have been a “falling out” between

Hudgins and Dees, which Hudgins denied.

To further prove its case, the government called eight more of Dees’s co-

conspirators, all of whom had been convicted of the same charge as the one facing

Dees, and all of whom had either received or were awaiting sentencing. Each co-

conspirator testified that he either bought or sold cocaine or cocaine base from

Dees, and each co-conspirator was subject to the same type of cross-examination

as were Williams and Hudgins, i.e, each had a criminal record, a drug conviction,

and the possibility of a reduced sentence or a reduced sentence for testifying.

Therefore, the backbone of the government’s case against Dees was formed

through the testimony of Dees’s convicted co-conspirators.

Mid-trial, the government again indicated to the court that it wished to

present 404(b) evidence. It argued that the introduction of the evidence, showing

two incidents where Dees was found in possession of cocaine base and packaging

6
suitable for distribution, would help prove intent and negate any mistake. Dees

argued that the evidence was being offered to prove Dees’s propensity, not intent,

and that the government had already proffered the testimony of ten witnesses,

giving it a strong case and making the introduction of the prior acts highly

prejudicial and unnecessary. He reiterated his earlier argument that Dees would

have to specifically refute any connection to, or knowledge of, cocaine before the

government’s evidence would be admissible. The court again reserved ruling, and

eventually found that the 404(b) evidence would “be permitted for the purpose of

determining state of mind or intent and whether [Dees] acted in accordance with a

plan and not by mistake, and I’ll so inform the jury.”

Dees then stipulated to two prior felony convictions for possession of

cocaine base, one on March 2, 1999, the other on July 31, 2000. The jury was

informed that it could not consider the prior convictions when determining whether

Dees committed the crimes with which he was presently charged.

After both sides had closed their cases, Dees moved for a judgment of

acquittal, arguing that, if the government’s evidence proved a conspiracy, it proved

that the conspiracy was for the government’s witnesses to receive lesser sentences

by implicating Dees instead of some unknown third person in the conspiracy. He

argued that the government’s witnesses had a clear motive to get out of their

7
sentences, had the opportunity to speak with one another about the case, and were

continuing to protect someone at the expense of Dees. The court denied Dees’s

motion, finding that it was the jury’s duty to determine the credibility of the

witnesses, and the evidence needed to be viewed in a light most favorable to the

government.

In its instructions to the jury, the court stated that the jury could believe or

disbelieve any witness, suggesting to the jury that it consider, among other things,

whether there was any evidence to suggest a witness testified falsely, whether the

witness had been convicted of a felony, and it specifically instructed the jury that

witnesses seeking to gain favorable treatment by testifying or by plea bargaining

might have reasons to make a false statement, and, therefore, their testimony

should be viewed with more caution. The jury was further instructed that, to prove

Dees conspired, the government had to show (1) two or more persons in some way

or manner, came to a mutual understanding to try and accomplish a common and

unlawful plan as charged in the indictment, and (2) that the defendant, knowing the

unlawful purpose of the plan, wilfully joined it. The jury found Dees guilty as

charged.

A pre-sentence investigation report (“PSI”) calculated Dees’s base offense

level at 38, pursuant to U.S.S.G. § 2D1.1(c)(1), based on a drug quantity

8
calculation of well in excess of 30,000 kilograms of marijuana. A two-level

enhancement was added pursuant to U.S.S.G. § 2D1.1(b)(1) based on the

possession of a weapon by two of Dees’s co-conspirators, which the PSI found to

be reasonably foreseeable given the large sums of cash and cocaine involved. No

other enhancements or reductions were made, giving Dees a total offense level of

40. Dees had eight criminal history points, placing him at criminal history

category IV, providing for a guidelines range of 360 months’ imprisonment to life.

However, because Dees was subject to two prior felony drug convictions, he faced

a minimum mandatory term of life imprisonment pursuant to 21 U.S.C.

§§ 841(b)(1)(A)(ii)-(iii).

Dees filed several objections to the PSI, the only one relevant to his present

appeal being a challenge to the two-level enhancement for use of a firearm during

the conspiracy. At the sentencing hearing, however, the district court asked Dees if

any of his objections, including his objection to the firearm enhancement, were not

trumped by the statutorily enhanced sentence. Dees replied that his objections

were indeed mooted by the statutory enhancement, and sought only to preserve

those objections made to the PSI for the purposes of appeal. Thus, the district

court heard no argument regarding Dees’s objections, nor did it make any rulings

as to the findings of the PSI, proceeding directly to whether the government had

9
met is burden of proof regarding the statutory enhancement.

Dees neither confirmed nor denied that he had two prior felony drug

convictions, and the government put witnesses on the stand, ultimately linking the

convictions of record to Dees through his fingerprints. Based on Dees’s two prior

felony drug convictions, and his federal conviction in the instant case under 21

U.S.C. §§ 841(a)(1), 846, the district court sentenced Dees, as it was required, to

life imprisonment.

I. Sufficiency of the Evidence

On appeal, Dees first argues that there was insufficient proof to convict him

for conspiracy to possess with intent to distribute cocaine and cocaine base because

the only evidence presented by the government linking Dees to a conspiracy was

the tenuous testimony of co-conspirators. He argues that there was no direct

evidence incriminating him, and that the witnesses who testified against him spoke

about the case amongst themselves and had motives to provide false statements in

return for reduced sentences. Because no independent evidence corroborated the

testimony of the witnesses, and because there was no discrepancy in the overall

testimony of each witness, their testimony was likely fabricated, and Dees argues

that the evidence was insufficient to convict him. Thus, he argues that his motion

for judgment of acquittal should have been granted.

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 We review de novo whether the evidence was sufficient to support a

conviction. United States v. Majors, 196 F.3d 1206, 1210 (11th Cir. 1999)

(citation omitted). “In reviewing the sufficiency of the evidence to support the jury

verdict, we view the evidence in the light most favorable to the government . . . all

reasonable inferences and credibility choices are made in the government's favor.”

Id. “Accepting all reasonable inferences from the evidence which support the

verdict, we will affirm the convictions if a reasonable fact-finder could have

reached a conclusion of guilt beyond a reasonable doubt.” Id.

Moreover, we review de novo the denial of a motion for judgment of

acquittal, and the denial will be upheld if a reasonable fact-finder could conclude

that the evidence established the defendant's guilt beyond a reasonable doubt,

drawing all inferences in favor of the government. See United States v. Hansen,

262 F.3d 1217, 1236 (11th Cir. 2001).

“To sustain a conviction for conspiracy to possess cocaine with intent to

distribute, the government must prove beyond a reasonable doubt that (1) an illegal

agreement existed; (2) the defendant knew of it; and (3) the defendant, with

knowledge, voluntarily joined it.” United States v. McDowell, 250 F.3d 1354,

1365 (11th Cir. 2001). “It is not necessary to prove a defendant's participation in a

criminal conspiracy by direct evidence.” Id. “Instead, a common purpose and plan

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may be inferred from a development and collocation of circumstances.” Id.

(quotation and citation omitted). “Although mere presence at the scene of a crime

is insufficient to support a conspiracy conviction, presence nonetheless is a

probative factor which the jury may consider in determining whether a defendant

was a knowing and intentional participant in a criminal scheme.” Id.

At trial, Jafari Williams testified that he (1) knew Dees since childhood; (2)

began dealing cocaine in 2001; (3) first received cocaine from Dees in the latter

part of 2002, and continued to receive cocaine from him in quantities of 14 to 18

ounces, at a price of $14,000 for 18 ounces; (4) personally saw Dees engaged in

selling and pushing cocaine and crack cocaine, and even shared customers with

Dees; (5) occasionally would supply Dees’s customers and Dees would supply

Williams’s customers if either one ran out of cocaine; (6) rode in automobiles with

Dees while Dees was selling cocaine and supplied Dees with cocaine; (7)

witnessed Dees “cook” cocaine powder into cocaine base; (8) taught Dees how to

“cut” his cocaine with baking soda in order to sell more; (9) shared a motel room

with Dees, and had been in Dees’s house when Dees would package his cocaine for

distribution; and (10) saw Dees with more than one kilogram of cocaine at least

nine times.

Williams further testified that the largest purchase that he and Dees

12
discussed making together was a 30-kilogram buy for $150,000, which was never

consummated. Instead, Dees sold Williams three kilograms of cocaine for

$66,000. Furthermore, both Williams and Dees paid another co-conspirator,

Joseph Grimsley, to “cook” the cocaine into cocaine base because Grimsley was an

“expert.” Williams was also able to identify bags that Dees used to wrap and

package his cocaine. Williams further testified that Dees, on several occasions, left

powder cocaine for Williams to sell on his behalf. Ultimately, Williams testified

that, over the course of the conspiracy, Dees sold him about 12 kilograms of

cocaine, some of which was seized at the time Williams was arrested.

The government also called Earl Hudgins, who was arrested the same day as

Williams, and who is serving a 250-month sentence for federal drug charges.

Hudgins testified that he bought crack cocaine from Dees and Williams and

eventually purchased powder cocaine from Dees in order to “cook” it himself and

make a better profit upon resale. He further testified that he only bought powder

cocaine from Dees when Williams had run out, but that he probably bought a total

of 60 cookies of cocaine base directly from Dees. Hudgins also indicated that the

most cocaine powder he ever saw Dees handle was three kilograms involved in a

sale to Williams. Like Williams, Hudgins also used Grimsley as his “cook,” and

testified that he saw Dees at Grimsley’s house, and that Dees was there to “cook”

13
cocaine.

As to both Williams and Hudgins, Dees conducted vigorous cross-

examination, exposing their criminal records, pointing out possible inconsistencies

in testimony, implying that their testimony was offered solely to avoid a sentence

of life imprisonment, and averring that there may have been a “falling out”

between Hudgins, Williams, and Dees, which the parties denied. Similar

testimony regarding buying and selling cocaine and cocaine base and similar

cross-examination was elicited from no less than eight other co-conspirators and

government witnesses.

While Dees attacks the credibility and truthfulness of the government’s

witnesses, attributing to them high motives to lie, “[c]redibility determinations are

the exclusive province of the jury.” United States v. Calderon, 127 F.3d 1314,

1325 (11th Cir. 1997). Indeed, as we have held, “judgment of acquittal . . . is not

required because the government's case includes testimony by an array of

scoundrels, liars and brigands.” United States v. Hewitt, 663 F.2d 1381, 1385

(11th Cir. 1981). “The jury [is] free to disbelieve the . . . government witnesses

whose faults were exhaustively catalogued by the attorneys . . . . Furthermore, the

trial judge fully instructed the jury on the degree of suspicion they should entertain

when considering the testimony. . . .” Id. (citations omitted).

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 As in Hewitt, by bringing back a verdict of guilty, the jury found the

government’s witnesses credible. Id. at 1385. Moreover, the court at Dees’s trial

specifically instructed the jury that it was free to disbelieve witnesses, and that it

should take with caution the testimony of those who were testifying in hope of

sentence reductions. (See R1-150 unnumbered). Instead, the jury believed the

testimony establishing that Dees bought cocaine, “cooked” cocaine base, sold

cocaine powder and cocaine base to others, shared customers with several different

drug dealers, learned how to “cut” his cocaine from another co-conspirator

(Williams), and consummated sales as high as three kilograms of cocaine for

$66,000, and as many as 60 cookies of cocaine base to one buyer alone. We

conclude that this was sufficient evidence for a reasonable juror to conclude,

beyond a reasonable doubt, that Dees was a participant in a conspiracy to possess

with intent to distribute cocaine and cocaine base, as charged in the indictment.

Therefore, we conclude that the district court did not err by denying Dees’s motion

for judgment of acquittal, and the evidence, taken in a light most favorable to the

government, was sufficient to support Dees’s conviction.

II. Admission of 404(b) Prior Convictions

Dees next argues that the district court abused its discretion by admitting

into evidence two separate state felony convictions for possession of controlled

15
substances, both of which were outside the time scope of the charged conspiracy.

He argues that the evidence was highly prejudicial and offered only to paint him as

a drug user, not for motive, intent, or any other permissible purpose.

We review the district court’s rulings on admission of evidence for an abuse

of discretion. United States v. Jiminez, 224 F.3d 1243, 1249 (11th Cir. 2000).

“The abuse of discretion standard has been described as allowing a range of choice

for the district court, so long as that choice does not constitute a clear error of

judgment.” United States v. Kelly, 888 F.2d 732, 745 (11th Cir. 1989).

Rule 404(b) provides that evidence of “other crimes, wrongs, or acts, is not

admissible to prove the character of a person in order to show action in conformity

therewith. It may, however, be admissible for other purposes, such as proof of

motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of

mistake or accident.” Fed.R.Evid. 404(b). Thus, extrinsic evidence of uncharged,

criminal activities generally is considered inadmissible for proving that the

defendant acted the same way in the charged offense, but is admissible if used for

another purpose, such as to establish intent. Fed.R.Evid. 404(b). Even then, “[t]o

be admissible, 404(b) evidence must (1) be relevant to one of the enumerated

issues and not to the defendant’s character; (2) the prior act must be proved

sufficiently to permit a jury determination that the defendant committed the act;

16
and (3) the evidence’s probative value cannot be substantially outweighed by its

undue prejudice, and the evidence must satisfy Rule 403.”1 United States v.

Chavez, 204 F.3d 1305, 1317 (11th Cir. 2000).

“‘Evidence of prior drug dealings is highly probative of intent to distribute a

controlled substance . . . .’” United States v. Cardenas, 895 F.2d 1338, 1344 (11th

Cir. 1990) (quoting United States v. Hitsman, 604 F.2d 443, 448 (5th Cir. 1979)).

This is true even if the prior offense involved a different type of drug than the drug

in the charged offense. See United States v. Calderon, 127 F.3d 1314, 1331 (11th

Cir. 1997) (holding a prior conviction for trafficking large quantities of marijuana

relevant to the question of intent in charge of cocaine importation and distribution).

Here, it was not an abuse of discretion to permit the 404(b) evidence at trial.

As to the first prong of the Chavez test, Dees pled not guilty, placing intent directly

at issue. Under Calderon, a plea of not guilty in a drug conspiracy case alone

arguably satisfies the government’s 404(b) relevancy requirement. Calderon, 127

F.3d at 1332. Under the second prong (sufficient proof), Dees stipulated to the

record convictions and the underlying arrests and reports; therefore, the acts were

sufficiently proven. The jury, thus, was able to determine that the defendant

3
“Although relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”
Fed.R.Evid. 403.

17
committed the prior acts. See Huddleston v. United States, 485 U.S. 681, 689, 108

S.Ct. 1496, 1501, 99 L.Ed.2d 771 (1988).

Finally, as to the question of prejudice, this Court has held that “a not guilty

plea in a drug conspiracy case, such as we have here, makes intent a material issue

and opens the door to admission of prior drug-related offenses as highly probative,

and not overly prejudicial, evidence of a defendant’s intent.” Calderon, 127 F.3d

at 1332. Furthermore, where, as Dees argues here, the credibility of the

government’s witnesses is suspect, the need for 404(b) evidence is heightened. Id.

Additionally, as the government argues, any prejudicial effect to Dees was

mitigated by the district court’s instruction to the jury regarding the limited

purpose and use of the 404(b) evidence.

Therefore, we conclude that the district court did not abuse its discretion by

admitting into evidence Dees’s prior arrests and convictions for possession of

controlled substances.

III. Dees’s Two-Level Firearm Enhancement

Lastly, Dees argues that the district court erred by not ruling on and

removing a two-level enhancement for possession of a firearm by a co-conspirator

used to calculate his guidelines sentence, U.S.S.G. § 2D1.1(b)(1). Dees concedes

that the court thought the issue was trumped by the statutorily enhanced mandatory

18
life sentence, but argues that because Dees was not present during the possession

of the firearm, and could not have reasonably foreseen its possession, this Court

should remand for resentencing because the mention of firearms affects, inter alia,

the determination of Dees’s incarceration facility.

Pursuant to U.S.S.G. § 2D1.1(b)(1), a defendant’s sentence is enhanced two

levels if a dangerous weapon, including a firearm, is possessed. U.S.S.G.

§ 2D1.1(b)(1). “The adjustment should be applied if the weapon was present,

unless it is clearly improbable that the weapon was connected with the offense.”

Id., (comment., n.3.).

We will assume, without deciding, that the district court should have heard

argument from the parties concerning the application of § 2D1.1(b)(1) to Dees’s

sentence because any error in failing to make specific findings regarding or

erroneously applying that section had no impact whatsoever on the sentence

imposed. “[O]nce the court of appeals has decided that the district court

misapplied the Guidelines, remand is appropriate unless the reviewing court

concludes, on the record as a whole, that the error was harmless, [i.e.], that the

error did not affect the district court’s selection of the sentence imposed. Williams

v. United States, 503 U.S. 193, 203, 112 S.Ct. 1112, 1120-21, 117 L.Ed.2d 341

(1992).

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 Here, the court was required, under 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii)-

(iii), to impose a life sentence because Dees had two prior felony drug convictions.

See 21 U.S.C. § 841(b)(1)(A)(ii)-(iii) (“[i]f any person commits a violation of this

subparagraph . . . after two or more prior convictions for a felony drug offense

have become final, such person shall be sentenced to a mandatory term of life

imprisonment without release.). Therefore, regardless of whether Dees should or

should not have been subject to a weapon enhancement under the guidelines was

irrelevant, as his sentence would have been life imprisonment either way.

Therefore, we conclude that any error committed by the district court in failing to

rule on the enhancement or ruling in favor of applying the enhancement was

harmless.2

IV. Dees’s Adopted Arguments

2
Dees argues in brief that resentencing is required because the mention of firearms has
greater ramifications than just the two-level enhancement, i.e., that it is a factor in the
determination of the incarceration facility. Dees offers no authority or citation for this novel
proposition, and in any event, he did not argue this to the district court, and any review would be
subject to plain error analysis. Under plain error review, Dees would have to demonstrate that
the district court committed an error, obvious or plain under current law, that violated his
substantial rights. See United States v. Cotton, 535 U.S. 625, 631. 122 S.Ct. 1781, 1785, 152
L.Ed.2d 860 (2002). However, Dees cannot make such a showing because “inmates usually
possess no constitutional right to be housed at one prison over another.” Barfield v. Brierton,
883 F.2d 923, 936 (11th Cir. 1989). Moreover, there is no precedent even suggesting that the
district court was required to resolve the firearm-enhancement question where a mandatory term
of life imprisonment was required, even if the facility of incarceration may have been altered.
Finally, it is the Bureau of Prisons, acting at the direction of the United States Attorney General,
not the Judiciary, that controls the placement of persons convicted of crimes against the United
States. See 18 U.S.C. § 4042(a).

20
 In his brief, Dees states that he adopts “all arguments, points, and authorities

cited by other appellants on the common issues they share including any plain

errors which occurred.” Dees does not, however, indicate which appellants (or,

indeed, that there are any others), nor does he direct us to which issues, if any, may

be shared in common with his codefendants.

A party seeking to adopt the arguments set forth in the brief of a codefendant

pursuant to F.R.A.P Rule 28 is required, at the very least, to include “a statement

describing in detail which briefs and which portions of those briefs are

adopted.” F.R.A.P. 11th Cir. 28-1(f) (emphasis supplied). Dees’s statement of

adoption fails to state in any detail which briefs and which portions he seeks to

adopt, and thus, fails to comply with our procedural rules.

Upon our own, independent review, it appears that the only brief of an

appellant related to Dees is that of Robert Pettway, who submitted a brief in his

appeal of United States v. Pettway, No. 04-14658-AA. We have, on occasion,

allowed a party to adopt an argument of a co-appellant, despite a failure to

technically conform with the appellate rules of adoption, where it would be

anomalous to reverse some convictions on an error (raised in the argument to be

adopted) that affected all of the defendants involved. See, e.g., United States v.

Gray, 626 F.2d 494, 497 (5th Cir. 1980). We, however, have reviewed the

21
arguments raised in Pettway’s brief, along with the record on appeal, and conclude

that the arguments adopted by Dees from Pettway’s brief lack merit as to Dees.

Therefore, we decline to further address any potentially adopted arguments from

Dees’s perspective in this opinion.

In sum, we conclude that (1) the evidence was sufficient for a reasonable

juror to convict Dees; (2) the district court did not abuse its discretion by admitting

the government’s 404(b) evidence; and (3) any error committed by failing to

address Dees’s two-level enhancement under the guidelines was harmless because

it did not and would not have affected his sentence. We, therefore, affirm Dees’s

conviction and sentence.

AFFIRMED.

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