United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT July 24, 2006
Charles R. Fulbruge III
Clerk
No. 04-11359
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROY COMBS; JORGE MARTINEZ; GARY THOMAS,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Texas
(3:03-CR-188-9-N)
Before JONES, Chief Judge, and BARKSDALE and BENAVIDES, Circuit
Judges.
PER CURIAM:*
Roy Combs, Jorge Martinez, and Gary Thomas contest their
sentences for conspiring to possess, with intent to distribute,
five kilograms or more of cocaine, in violation of 21 U.S.C. § 846.
In that regard, Thomas contends the district court erred in
sentencing him to a mandatory life sentence as a repeat offender;
Combs and Martinez maintain it erred in sentencing them under the
then-mandatory Sentencing Guidelines, in violation of United States
v. Booker, 543 U.S. 220 (2005).
*
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this opinion should not be published and is not precedent except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.
Combs and Thomas also appeal their convictions, claiming: the
court erred in admitting evidence that Martha Flores, a co-
defendant, attempted to sell cocaine to a law-enforcement officer
while the trial was pending; there was insufficient evidence to
show they were part of the conspiracy to distribute cocaine; and
the court erred in denying a severance. In addition, Thomas
asserts there was a material variance between his indictment and
the Government’s proof at trial.
Concerning the evidence of Flores’ cocaine sale while the
trial was pending, we note, without deciding, that Combs and Thomas
may lack standing to appeal the admissibility of this evidence.
Other courts have concluded that only the person whose "other
crimes" are at issue may raise a 404(b) challenge on appeal. See
United States v. David, 940 F.2d 722, 736 (1st Cir. 1991).
Assuming they do have standing, we review under a heightened abuse-
of-discretion standard the admittance in a criminal trial of
evidence under Federal Rule of Evidence 404(b) (evidence of other
crimes or wrongful acts inadmissible to show action in conformity
with crime charged). United States v. Pompa, 434 F.3d 800, 805
(5th Cir. 2005). Under that rule, evidence of an extrinsic offense
is admissible if it is relevant to an issue other than the
defendant's character, and its probative value does not
substantially outweigh its prejudice. E.g., United States v.
Beechum, 582 F.2d 898, 911 (5th Cir. 1978), cert. denied, 440 U.S.
2
920 (1979). Such evidence “should not be admitted solely to
demonstrate the defendant's bad character”. Id. at 910. The
district court did not admit the evidence for that reason; the
evidence did not relate to Combs’ and Thomas’ conduct.
Furthermore, the district court gave a lengthy limiting
instruction. There was no abuse of discretion.
Combs’ and Thomas’ sufficiency-of-the-evidence claims are
reviewed de novo. E.g., United States v. Pennell, 409 F.3d 240,
243 (5th Cir. 2005). Viewing the evidence in the light most
favorable to the Government, we must determine whether a rational
fact finder could have found Combs and Thomas guilty of the
conspiracy beyond a reasonable doubt. Id. The evidence shows:
Combs repeatedly received deliveries of one to two kilograms of
cocaine from an individual; Thomas was frequently supplied cocaine
by another, who “fronted” cocaine to Thomas, allowing him to pay
for the drugs after they were sold; and Thomas was a low-level
distributor in a long distribution chain. A rational juror could
have found beyond a reasonable doubt that Combs and Thomas were
part of the conspiracy.
Next, Combs and Thomas claim they should have been tried
separately because much of the evidence was inadmissable against
them individually and was inflammatory. The district court’s
refusal to grant a separate trial is reviewed for an abuse of
discretion. United States v. Rubio, 321 F.3d 517, 526 (5th Cir.
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2003). “[T]o meet this burden, a defendant must show specific and
compelling prejudice against which the district court could not
provide adequate protection, and that this prejudice resulted in an
unfair trial”. Id. (internal citation and quotation marks
omitted). Each defendant fails to do so. First, the district
judge gave a specific jury instruction at the close of trial that
evidence should be considered individually and separately for each
defendant. Furthermore, there is a preference in the federal
system for joint trials for defendants who are charged together,
especially where conspiracy is alleged. See United States v. Neal,
27 F.3d 1035, 1045 (5th Cir. 1994), cert. denied, 513 U.S. 1179
(1995). The district court did not abuse its discretion.
Thomas also claims there was a material variance between his
indictment and the proof at trial because, although the indictment
charged only one conspiracy, the evidence shows multiple
conspiracies. A single-conspiracy verdict must be affirmed unless
the evidence, with all reasonable inferences in the Government’s
favor, precludes a reasonable jury from finding a single
conspiracy. See United States v. Morris, 46 F.3d 410, 415 (5th
Cir.), cert. denied, 515 U.S. 1150 (1995). The evidence did not
preclude such a finding.
Thomas maintains the district court erred in imposing a
repeat-offender enhancement, resulting in his mandatory life
sentence, because: (1) the district judge, not the jury, found
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Thomas had two prior convictions; and (2) the Government failed to
give sufficient notice it was going to seek this penalty when it
sought this enhancement on the day of trial. Thomas concedes the
notice was filed before trial. As such, it complies with 21 U.S.C.
§ 851(a). See United States v. Rice, 43 F.3d 601, 604 (11th Cir.
1995). Furthermore, the Government need not prove beyond a
reasonable doubt the existence of a prior conviction. See Apprendi
v. New Jersey, 530 U.S. 466, 490 (2000); United States v.
Almendarez-Torres, 523 U.S. 224 (1998). To the extent Thomas is
claiming Almendarez-Torres was wrongly decided, that claim is
foreclosed by circuit precedent. E.g., United States v.
Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct.
298 (2005).
Finally, Combs and Martinez claim the district court erred in
sentencing them under the then-mandatory Guidelines, in violation
of Booker. Because each preserved the error by making an objection
at sentencing pursuant to Blakely v. Washington, 542 U.S. 296
(2004), our review is for harmless error beyond a reasonable doubt.
United States v. Walters, 418 F.3d 461, 463-64 (5th Cir. 2005).
The district court imposed an alternative sentence identical to the
one imposed under the mandatory Guidelines; the former was to
become effective in the event the Supreme Court declared the
Guidelines unconstitutional. Therefore, the Government has
satisfied its burden to show the Booker error was harmless. See
5
United States v. Saldana, 427 F.3d 298, 314 (5th Cir.), cert.
denied, 126 S. Ct. 810 (2005).
In his reply brief, Martinez claims reversible error because
the oral pronouncement at sentencing (sentence under mandatory
Guidelines) conflicts with the written judgment (which included the
alternative sentence). Generally, we do not consider issues raised
for the first time in a reply brief. E.g., United States v. Brown,
305 F.3d 304, 307 n.4 (5th Cir. 2002), cert. denied, 538 U.S. 1007
(2003). In any event, there is no conflict: each sentence was the
same.
AFFIRMED
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