United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS June 22, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-51025
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EUGENE BOSTON, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:04-CR-459-ALL
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Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
On the morning of August 3, 2004, Eugene Boston, Jr., and
his girlfriend, Norma Buckley, were in Buckley’s car. Boston was
driving; Buckley was in the passenger seat. Police stopped the
vehicle and arrested Boston on outstanding warrants. In a search
incident to the arrest, police found 21.23 grams of cocaine base
concealed in a hidden compartment in the car’s dashboard.
In a jury trial, Boston was found guilty of two counts of
drug-related offenses. Count One was for possession of more than
five grams but less than 50 grams of cocaine base with intent to
distribute, in violation of 21 U.S.C. § 841(a) and (b), and Count
*
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this opinion should not be published and is not precedent except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.
No. 05-51025
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Two was for possession of more than five grams of cocaine base,
in violation of 21 U.S.C. § 844(a). The district court entered
convictions on both counts, sentenced Boston to two concurrent
prison terms of 120 months and two concurrent supervised-release
terms of eight years, and assigned a $200 special assessment.
Boston now appeals.
Boston contends the trial evidence was insufficient to
support the knowledge element of his convictions. In a
sufficiency of the evidence claim, “the relevant question is
whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979). See also United
States v. Lopez-Urbina, 434 F.3d 750, 757 (5th Cir.), cert.
denied, 126 S. Ct. 672 (2005). The court does “‘not consider
whether the jury correctly determined guilt or innocence, [only]
whether the jury made a rational decision.’” Lopez-Urbina, 434
F.3d at 757 (quoting United States v. Rivera, 295 F.3d 461, 466
(5th Cir. 2002)) (alteration in original).
“The general rule in this circuit is that knowledge can be
inferred from control over the vehicle in which the drugs are
hidden if there exists other circumstantial evidence that is
suspicious in nature or demonstrates guilty knowledge.” United
States v. Garza, 990 F.2d 171, 174 (5th Cir. 1993) (internal
quotation omitted). Boston contends that the Government failed
to present sufficient evidence from which the jury could have
rationally inferred that Boston knew about the cocaine base
No. 05-51025
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hidden in Buckley’s car. We disagree.
Boston was driving the vehicle, and the hidden compartment
was accessible from the driver’s seat. In addition, a
surveillance officer had observed Boston “tinkering” under the
hood of the vehicle before he and Buckley drove away. The same
officer testified that the dashboard had “obvious” alterations
and that it was “kind of torn up.” The officer also described
seeing a flat-blade screwdriver wedged into a seam in the trim on
the dashboard’s console. The trim on the driver’s side was
chipped, indicating that it had been pried open. The drugs were
located behind the damaged trim. In addition to the evidence in
the car, Boston and Buckley had just come from staying overnight
at Buckley’s apartment. In the apartment, the police found
equipment and materials consistent with the manufacture of
cocaine base. The equipment—an electronic scale, a microwave-
oven carousel, and a Pyrex plate—all tested positive for cocaine.
On the basis of the evidence presented, a rational trier of fact
could have found that Boston knew about the cocaine base
concealed in the car’s dashboard. We, therefore, reject Boston’s
challenge to the sufficiency of the evidence.
As the Government concedes, on the facts of this case,
Boston’s convictions were multiplicitous. The Count Two
conviction of possession of cocaine base, under 21 U.S.C. §
844(a), was a lesser included offense of the Count One conviction
of possession of cocaine base with intent to distribute, under 21
U.S.C. § 841(a) and (b). Under double-jeopardy principles, the
lesser included offense, and the sentence for that offense, must
No. 05-51025
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be vacated. United States v. Brito, 136 F.3d 397, 408 (5th Cir.
1998). See also Rutledge v. United States, 517 U.S. 292, 296
(1996) (citing Blockburger v. United States, 284 U.S. 299, 304
(1932)). Accordingly, we affirm the Count One conviction and
vacate the Count Two conviction.
Where it is clear that the dual convictions did not lead the
district court to impose a harsher sentence, there is no need to
remand for resentencing. See United States v. Narviz-Guerra, 148
F.3d 530, 534 (5th Cir. 1998). Here, aside from the $200 special
assessment, it is clear that the same 120-month sentence would be
imposed. The district court’s original sentence is the statutory
minimum sentence. See 21 U.S.C. § 841(b)(1)(B). Vacating the
Count Two conviction does not affect the statutory minimum of the
Count One conviction. We, therefore, adjust the special
assessment to $100 and do not remand for resentencing.
Boston argues that his prison sentence violates his due-
process rights because his prior convictions were neither
submitted for proof to a jury nor admitted by him. This argument
is foreclosed. United States v. Ochoa-Cruz, 442 F.3d 865, 868
(5th Cir. 2006).
We AFFIRM the Count One conviction and sentence under 21
U.S.C. § 841(a) and (b) for possession of cocaine base with
intent to distribute. We VACATE the Count Two conviction and
sentence under 21 U.S.C. § 844(a) for possession of cocaine base.
We MODIFY the district court’s judgment to impose only a $100
special assessment. Any money paid by Boston in excess of $100
toward the erroneous special assessment should be refunded.