United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
July 13, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
____________________
No. 05-60312
____________________
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
MALCOLM CHARLES HARTZOG
Defendant-Appellant
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi
No. 2:04-CR-00022-LG-2
_________________________________________________________________
Before KING, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
Defendant-appellant Malcolm Charles Hartzog was convicted of
conspiring to distribute cocaine hydrochloride and cocaine base
and possession with intent to distribute cocaine hydrochloride.
He was sentenced to a term of life imprisonment for the
conspiracy conviction and a term of 360 months for the possession
conviction. Hartzog appeals to this court, seeking reversal of
*
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that this opinion should not be published and is not precedent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.
his conviction and sentence. For the reasons stated below, we
AFFIRM.
I. BACKGROUND
Malcolm Charles Hartzog (“Hartzog”) was charged on August
26, 2004, in three counts of a four-count superseding indictment.
Only two of these counts are relevant to this appeal. The first
relevant count (“count one”) charged Hartzog with conspiring to
distribute more than 150 kilograms of cocaine hydrochloride and
more than 1.5 kilograms of cocaine base (“crack”), in violation
of 21 U.S.C. §§ 841(a)(1) and 846. The second relevant count
(“count three”) charged Hartzog and defendant Jackie Newsome
(“Newsome”) with possession with intent to distribute more than
100 grams but less than 500 grams of cocaine hydrochloride, in
violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. On
September 21, 2004, Hartzog moved to dismiss the indictment
pursuant to the Speedy Trial Act, 18 U.S.C. §§ 3161 et seq., and
he filed an amended version of this motion on October 1, 2004.
The district court denied both motions.
Hartzog’s trial began on November 29, 2004. The government
did not produce any physical evidence of the drugs described in
the indictment, but relied instead on the credibility of
testimony from cooperating witnesses, confidential informants,
and investigating agents to prove its case. Among these
witnesses, Hartzog’s fellow defendant Newsome, Mississippi Bureau
2
of Narcotics (“MBN”) agent Marcus Bass (“Bass”), and cooperating
witness Gregory James (“James”) provided testimony highly
relevant to this appeal.
James, a cocaine dealer, testified that he began secretly
cooperating with MBN agents after his second arrest, in September
2003. James began by naming both Newsome and Hartzog as his
suppliers. On October 24, 2003, MBN agents, including Bass,
arranged for James to meet Newsome to conduct a controlled buy.
In order to monitor this controlled buy, the MBN agents outfitted
James with a transmitter and searched him in advance for drugs on
his person. James testified that he met with Newsome, followed
Newsome to a remote area, and then gave Newsome a sum of money.
Shortly thereafter, Hartzog drove past both James and Newsome and
was identified by James. According to Newsome’s testimony at
Hartzog’s trial, he then left with James’s money, called Hartzog,
met with Hartzog, and returned to James with cocaine provided by
Hartzog. When James returned to the MBN agents, he turned over
approximately 124.9 grams of cocaine hydrochloride.
In addition to their testimony about this controlled buy,
both James and Newsome provided considerable general testimony
about Hartzog’s drug trafficking activities. At Hartzog’s trial,
James testified that he first met Hartzog in 2002, during a drug
transaction with Newsome. According to James’s testimony, he
received nine to eighteen ounces of powder cocaine from Newsome
3
and Hartzog once a week.1 James also testified that he arranged
two multi-kilogram cocaine transactions between Hartzog, Newsome,
and a group of “Texans” in the summer of 2003.
Newsome’s testimony reinforced James’s account. At
Hartzog’s trial, Newsome testified that he dealt drugs with
Hartzog until his own arrest in February 2004. More
specifically, Newsome testified to Hartzog’s role in delivering
cocaine to transactions with James. At the conclusion of
Newsome’s direct testimony, Hartzog’s counsel moved to be
provided with unredacted copies of various agent-prepared
investigative reports, known as DEA-6s, in order to impeach
Newsome’s testimony and the testimony of other prosecution
witnesses.
Hartzog’s counsel claimed that the government was required
to disclose the reports pursuant to the Jencks Act, 18 U.S.C.
§ 3500, because the reports constituted “statements,” as defined
by the Jencks Act, made by Newsome and other prosecution
witnesses. In response, the government argued that the DEA-6
reports were not witness “statements” as defined by the Jencks
Act because each report was prepared by an agent rather than a
witness and contained only the agent’s recollection of the
interview. The district court examined the DEA-6 reports and
1
James testified that Hartzog was present at “[m]ainly
every one” of his drug transactions with Newsome, and that during
these purchases, he saw Hartzog give the drugs to Newsome, who
would then give the drugs to James in exchange for money.
4
denied Hartzog’s Jencks Act motion. Following Newsome’s cross
examination, the government introduced several other cooperating
witnesses who testified about various cocaine transactions
involving Hartzog.
After the government rested, Hartzog called Special Agent
Karl Winter (“Winter”) to the stand in order to challenge the
testimony of some of the government’s witnesses, based on the
content of the DEA-6 reports Winter had written. Hartzog then
took the stand in his own defense. Hartzog testified that he was
not involved in the controlled buy of October 24, 2003, and he
denied engaging in any drug transactions with any of the co-
conspirators named in the indictment.
Following the government’s rebuttal evidence, the district
court instructed the jury, and both sides presented their closing
arguments. During their deliberations, the jurors sent a note to
the district judge asking: “Do we have to be unanimous on [the]
amount [of drugs]?” The district court replied: “Yes.” Shortly
thereafter, the jury foreperson sent a second note, which stated:
“I believe we will be unable to agree unanimously on the amount.”
The district court then called the jury foreperson to
discuss the verdict form. The foreperson informed the district
court that the jury had reached unanimity on the first and fourth
questions of the special verdict form, which dealt with Hartzog’s
guilt or innocence on the conspiracy and possession with intent
to distribute charges. The foreperson also informed the district
5
court that the jury was unable to reach unanimity on the second
and third questions of the special verdict form, which required
the jury to determine what quantities of cocaine hydrochloride
and crack Hartzog had conspired to distribute. Both the second
and third questions allowed the jurors to select “none” as a
response. After this exchange, the district court simply
instructed the jury to return to its deliberations. Over two
hours later, the jury unanimously found Hartzog guilty of the
conspiracy and possession counts of the indictment discussed
above. The jury also found that Hartzog’s conspiracy conduct
involved less than 500 grams of cocaine hydrochloride and more
than fifty grams of crack.
On March 7, 2005, the district court sentenced Hartzog to a
term of life imprisonment and a term of 360 months for the
possession conviction. Hartzog filed a motion for a new trial
and a motion for judgment notwithstanding the verdict on March 9,
2005. The district court denied both motions the following day.
On April 12, 2005, Hartzog filed a notice of appeal to this
court, challenging the jury verdict and seeking relief from his
conviction and sentence.
II. DISCUSSION
A. Hartzog’s Jencks Act Claim
Hartzog raises two claims in this appeal based on the Jencks
Act. First, he claims that the Jencks Act required Hartzog’s
6
prosecutors to disclose unredacted versions of the DEA-6 reports
because these reports contained information provided by
cooperating witnesses that could have been used for impeachment
purposes. To support his claim that these DEA-6 reports
constituted “statements” as defined by 18 U.S.C. § 3500(e),
Hartzog points out that the government referred to them as
statements during his trial. Second, Hartzog claims that the
district court erred in denying his objection without conducting
an in camera review to determine if the DEA-6 reports contained
“statements,” as defined by the Jencks Act. To support this
second claim, Hartzog refers to our opinion in United States v.
Conroy, 589 F.2d 1258, 1272-73 (5th Cir. 1979), in which we
vacated and remanded a trial court’s judgment based on that
court’s failure to examine material allegedly covered by the
Jencks Act.
In response, the government contends that Hartzog has failed
to show that the DEA-6 reports were witness “statements” as
defined by § 3500(e), because Hartzog has not made a showing that
the reports were ever read or adopted by the witnesses. The
government also claims that Conroy is inapposite because the
district court in this matter, unlike the court in Conroy,
actually examined the DEA-6 reports before denying Hartzog’s
motion.
We review the district court’s determination that a DEA-6
report did “not constitute a ‘statement’ requiring disclosure
7
under the Jencks Act for clear error.” United States v. Brown,
303 F.3d 582, 591 (5th Cir. 2002); see also United States v.
Durham, 587 F.2d 799, 802 (5th Cir. 1979) (“We will not overturn
a trial court’s ruling that reports are not statements under the
Jencks Act unless that finding is clearly erroneous.”).
Moreover, even when the government is found to have violated the
Jencks Act, that failure is subject to harmless error analysis.
See United States v. Martinez, 151 F.3d 384, 391 (5th Cir. 1998)
(finding no indication that a Jencks Act violation occurred, but
quoting United States v. Beasley, 576 F.2d 626, 629 (5th Cir.
1978), and “reiterat[ing] this circuit’s holding” that “‘the
harmless error doctrine must be strictly applied in Jencks Act
cases’”).
Hartzog’s first claim is misplaced; the DEA-6 reports are
not “statements” as defined by the Jencks Act. The Jencks Act
defines the term “statement” thusly:
The term “statement,” as used in . . . this section in
relation to any witness called by the United States,
means--
(1) a written statement made by said witness and signed
or otherwise adopted or approved by him;
(2) a stenographic, mechanical, electrical, or other
recording, or a transcription thereof, which is a
substantially verbatim recital of an oral statement made
by said witness and recorded contemporaneously with the
making of such oral statement; or
(3) a statement, however taken or recorded, or a
transcription thereof, if any, made by said witness to a
grand jury.
18 U.S.C. § 3500(e). We have applied this provision and held
that in order for “interview notes” such as the DEA-6 reports at
8
issue in this appeal “to qualify as a statement under
§ 3500(e)(1) the witness must have signed, read, or heard the
entire document read.” United States v. Pierce, 893 F.2d 669,
675 (5th Cir. 1990) (citing United States v. Hogan, 763 F.2d 697,
704 (5th Cir. 1985)). The witnesses did not sign or otherwise
verify these DEA-6 reports. Moreover, we have held in the past
that “DEA-6 reports are not verbatim accounts” but are rather
“‘short, concise, summaries of the witnesses’ version of the
facts as recounted to the agents.’” United States v. Weintraub,
871 F.2d 1257, 1260 (5th Cir. 1989) (quoting United States v.
Merida, 765 F.2d 1205, 1215 (5th Cir. 1985)). Hartzog has not
shown that the DEA-6 reports at issue in this appeal depart from
the norm and provide substantially verbatim accounts of the
witnesses’ version of the facts. Because Hartzog has failed to
show that the DEA-6 reports qualify as statements under the
Jencks Act, he has failed to show that a violation of the Jencks
Act occurred.
Hartzog’s second claim is also misplaced because Conroy is
inapposite. In Conroy, the trial court completely failed to
review any of the documents at issue and relied entirely on the
government’s assertions. See 589 F.2d at 1273 (stating that
“where the court fails even to look at the complete materials,
thereby abdicating its responsibility to government counsel, the
reviewing court has no choice but to vacate the judgment and
remand for an appropriate examination”). In contrast, the
9
district court in this matter reviewed the redacted DEA-6 reports
and made specific findings that the reports did not contain
“statements” as defined by the Jencks Act. Because the district
court carefully reviewed the DEA-6 reports before denying
Hartzog’s Jencks Act motion, Hartzog has failed to show that the
district court’s failure to hold an in camera review was
reversible error.
B. Hartzog’s Brady Claim
Hartzog also claims that the district court’s failure to
disclose the unredacted DEA-6 reports violated his due process
rights established by Brady v. Maryland, 373 U.S. 83 (1963), and
Giglio v. United States, 405 U.S. 150 (1972). The Brady rule,
which requires the government to disclose evidence favorable to
the accused and material to guilt or to punishment, also
“encompasses evidence concerning the reliability of a witness
that may be determinative of guilt or innocence.” United States
v. Garcia, 917 F.2d 1370, 1375 (5th Cir. 1990) (citing Giglio,
405 U.S. at 154). Hartzog now claims that the government’s
failure to disclose the unredacted DEA-6 reports deprived him of
potentially exculpatory impeachment evidence.
In response, the government argues that Hartzog failed to
establish a sufficient record for our review of this Brady claim
because he did not ask the district court to include the
unredacted DEA-6 reports in the record. In addition, the
10
government argues that Hartzog has failed to demonstrate that any
of the withheld information would have made a material difference
to his defense. See, e.g., United States v. Lowder, 148 F.3d
548, 551 (5th Cir. 1998) (rejecting Brady claims because, even
assuming that the government withheld potential impeachment
evidence, the evidence was immaterial as the government’s case
“consisted of testimony from numerous witnesses”).
We review “allegations of Brady violations de novo.” United
States v. Infante, 404 F.3d 376, 386 (5th Cir. 2005). To prevail
on a Brady claim, a defendant such as Hartzog must satisfy a
three-part test: “(1) the prosecution did not disclose evidence;
(2) the evidence was favorable to the defense; and (3) the
evidence was material--i.e., there is a reasonable probability
that if the government had disclosed the evidence, the result of
the proceeding would have been different.” Infante, 404 F.3d at
386. This reasonable probability has been defined as “a
probability sufficient to undermine confidence in the outcome.”
United States v. Holley, 23 F.3d 902, 914 (5th Cir. 1994)
(quoting United States v. Bagley, 473 U.S. 667, 682 (1985)).
We have reviewed the redacted reports, and we conclude that
the withheld information is non-material. Virtually all of the
redacted information relates to witness identity: for the most
part, only the names of certain informants have been redacted; in
a few instances, additional identifying information such as
11
addresses or phone numbers have also been redacted. “We fail to
see how access” to these minor omissions “could have been of any
real value” to Hartzog’s defense, “even for impeachment
purposes.” United States v. Sink, 586 F.2d 1041, 1051 (5th Cir.
1998). Accordingly, we hold that Hartzog’s Brady claim is
without merit.
C. Hartzog’s Speedy Trial Act Claim
Hartzog also claims that the district court erred in failing
to dismiss this case pursuant to the Speedy Trial Act, 18 U.S.C.
§ 3161. In this appeal, Hartzog claims that his prosecution
involved two separate violations of the Speedy Trial Act. First,
Hartzog argues that his prosecution violated the Speedy Trial Act
because over thirty days elapsed between the filing of the
criminal complaint on June 21, 2004, and the filing of the
superseding indictment on August 26, 2004. Hartzog also argues
that the district court erred in granting the government a
continuance. He claims that this error caused over seventy days
to elapse between the filing of the complaint and the
commencement of his trial, which also violated the Speedy Trial
Act.
The government responds by arguing that Hartzog’s claims
fail to account for the specific exceptions which served to toll
the time limitations of the Speedy Trial Act in this case.
First, the government argues that the filing of the initial
12
indictment on June 23, 2004, tolled the thirty day arrest-to-
indictment clock. Citing this court’s decision in United States
v. Perez, 217 F.3d 323, 329 (5th Cir. 2000), the government
points out that although the superseding indictment increased the
drug quantities alleged, both the original and superseding
indictments charged the same offenses, and therefore no violation
of the Speedy Trial Act occurred. Second, the government points
out that even without considering the district court’s September
8, 2004, order granting a continuance, Hartzog’s trial still
occurred within the seventy-day limit set forth by the Speedy
Trial Act, because the district court properly excluded several
time periods based on motions filed by Hartzog.
The Speedy Trial Act requires that an “indictment charging
an individual with the commission of an offense shall be filed
within thirty days from the date on which such individual was
arrested or served with a summons in connection with such
charges.” 18 U.S.C. § 3161(b). When, as here, the government
files a superseding indictment based on the same criminal
transaction, and the superseding indictment is filed more than
thirty days after the defendant’s arrest, the filing of the
original indictment tolls the thirty-day limit set forth in the
statute. Perez, 217 F.3d at 328-29. Therefore, the district
court correctly declined to dismiss the superseding indictment
based on the Speedy Trial Act.
13
The Speedy Trial Act also requires that “the trial of a
defendant . . . shall commence within seventy days from the
filing date . . . of the . . . indictment, or from the date the
defendant has appeared before a judicial officer of the court in
which such charge is pending, whichever date last occurs.” 18
U.S.C. § 3161(c)(1). However, several “periods of delay” are
“excluded . . . in computing the time within which the trial of
any such offense must commence[,]” including a “delay resulting
from any pretrial motion, from the filing of the motion through
the conclusion of the hearing on, or other prompt disposition of,
such motion . . . .” 18 U.S.C. § 3161(h), (h)(1)(F). We have
held that “[o]bviously any pretrial motion leveled at dismissing
th[e] indictment counts as excludable time under 18 U.S.C.
§ 3161(h)(1)(F).” United States v. Castellano, 848 F.2d 63, 65
(5th Cir. 1988). Here, as in Castellano, there was no violation
of the seventy-day time limit of the Speedy Trial Act because the
district court properly excluded several periods for delay when
it considered Hartzog’s pretrial motions.
D. Hartzog’s Remaining Claims
1. Hartzog’s Verdict Form Claim
Hartzog claims that the district court’s special verdict
form allowed the jury to consider quantities of cocaine that
conflicted with the quantities charged in the conspiracy count of
the indictment. He also claims that the district court failed to
14
require the jury to find the drug quanties beyond a reasonable
doubt. Hartzog concludes that these alleged errors require
reversal based on our holdings in United States v. Randle, 259
F.3d 319 (5th Cir. 2001), withdrawn and superseded on reh’g, 304
F.3d 373 (5th Cir. 2002), and United States v. Burton, 237 F.3d
490 (5th Cir. 2000) (per curiam).
Hartzog’s conclusion is incorrect because the district
court’s jury instruction was consistent with the guidelines
provided in FIFTH CIRCUIT PATTERN JURY INSTRUCTION (Criminal) § 2.89
and expressly approved by this court in United States v. Arnold,
416 F.3d 349, 356 (5th Cir. 2005) (stating that “[t]his approach
--using a special interrogatory to determine drug quantity--is
endorsed in the note to Fifth Circuit Pattern Instruction § 2.89,
and we find its use appropriate”). Furthermore, Randle and
Burton, the cases relied upon by Hartzog, are inapposite. In
Randle, “the district judge did not instruct the jury to
determine the quantity of crack cocaine” for which the defendant
was responsible. 259 F.3d at 320. Similarly, in Burton, “the
quantity of cocaine base possessed with intent to distribute
. . . was neither charged in the indictment nor proven to the
jury beyond a reasonable doubt.” 237 F.3d at 491. In contrast,
the district court in this matter submitted the drug quantity to
the jury, and the jury reached conclusions beyond a reasonable
doubt on the quantity issue using the verdict form. Therefore,
the verdict form does not require reversal.
15
2. Hartzog’s Drug Quantity Claim
Hartzog also claims that the district judge’s responses to
the jury’s questions and the district judge’s exchanges with the
jury’s foreperson require reversal. More specifically, Hartzog
argues that because the district judge did not reiterate that
“none” was an option on the drug quantity issue--even though
“none” was clearly provided as an option in the written
instruction--the conviction should be reversed.
In general, district courts enjoy “wide latitude in deciding
how to respond to questions from a jury . . . .” United States
v. Cantu, 185 F.3d 298, 305-06 (5th Cir. 1999). The district
court’s straightforward exchange with the jury in this case fits
well within the acceptable latitude established by our precedent.
Moreover, the very case Hartzog relies upon, United States v.
Natale, 764 F.2d 1042 (5th Cir. 1985), actually undercuts his
position. In Natale, we rejected a defendant’s argument that a
supplemental jury instruction was erroneous because it did not
adequately refer to the original instruction. Instead, we held
that the trial court’s “response was carefully constructed to
avoid favoring either side,” and we declined to require the trial
court to “redefine” a term appearing in the original instruction.
Natale, 764 F.2d at 1047. As in Natale, the district court in
this matter provided a carefully constructed, neutral response
that did not favor either side, and it was not required to
16
redefine or reiterate a term which appeared in the original
instruction.
3. Hartzog’s Beyond a Reasonable Doubt Claim
Hartzog argues, without legal citation, that the district
court violated his due process rights by instructing the jury
that proof beyond a reasonable doubt “is proof of such a
convincing character that you would be willing to rely and act
upon it without hesitation in the most important of your
affairs.” Hartzog failed to object to this reasonable doubt
instruction at trial, so we review this claim for plain error.
Hartzog has not demonstrated any error, much less plain error, as
the district court’s instruction was taken directly from the
FIFTH CIRCUIT PATTERN JURY INSTRUCTION (Criminal) § 1.05.
4. Hartzog’s Sufficiency of the Evidence Claim
Hartzog also argues that the record was insufficient to
convict him of conspiracy to distribute cocaine. To support this
argument, he claims that the prosecution’s witnesses were not
credible, and he also points to the lack of physical evidence to
support their testimony. We “review the evidence to determine
whether ‘a rational jury could have found the essential elements
of the offenses beyond a reasonable doubt.’” United States v.
Pompa, 434 F.3d 800, 806 (5th Cir. 2005) (quoting United States
v. Dean, 59 F.3d 1479, 1484 (5th Cir. 1995)). In the course of
this review, we “draw[] all reasonable inferences in favor of the
17
jury’s verdict.” United States v. Alix, 86 F.3d 429, 435-36 (5th
Cir. 1996). Moreover, we will not consider Hartzog’s credibility
argument on appeal: “‘[c]redibility issues are for the finder of
fact and do not undermine the sufficiency of the evidence.’”
Martinez, 151 F.3d at 389 (quoting United States v. Morgan, 117
F.3d 849, 854 n.2 (5th Cir. 1997)).
Hartzog is also incorrect that the jury’s verdict is
insupportable because of the lack of physical evidence. Physical
evidence is not required for a narcotics conviction, and we have
held that even the testimony of a single witness “was in itself
sufficient to convict” a defendant of similar crimes. United
States v. Ramirez, 145 F.3d 345, 351 (5th Cir. 1998); see also
United States v. Westbrook, 119 F.3d 1176, 1190 (5th Cir. 1997)
(upholding a verdict based on the testimony of co-conspirators
even though police did not find the defendant in possession of
crack). As in Westbrook, the jury’s guilty verdict in this
matter is supported by “voluminous” testimony, and we decline to
disturb it.
5. Hartzog’s Sentencing Claim
Finally, Hartzog raises two sentencing issues. First, he
contends that the district court erred by reaching a different
fact finding conclusion on the drug quantity issue than the jury,
thereby violating his Sixth Amendment rights under United States
v. Booker, 543 U.S. 220 (2005). Second, Hartzog argues that the
18
district court erred in applying a four-level sentencing
enhancement under the U.S. SENTENCING GUIDELINES MANUAL § 3B1.1 (2004)
[hereinafter U.S.S.G.]. Hartzog argues that this enhancement
also violated Booker’s standard because the district court judge,
rather than the jury, made the findings necessary to support the
enhancement.2
Hartzog’s first sentencing argument--that the district court
erred by adjusting his sentence based on facts neither admitted
by him nor proven beyond a reasonable doubt to the jury--is
incorrect. As we recently explained, the sentencing guideline
range “‘should be determined in the same manner as before
Booker/Fanfan’ and . . . a judge may still find all the facts
supporting a sentence.” United States v. Duhon, 440 F.3d 711,
715-16 (5th Cir. 2006) (quoting United States v. Mares, 402 F.3d
511, 519 (5th Cir. 2005)); see also United States v. Alonzo, 435
F.3d 551, 553 (5th Cir. 2006) (stating that, “[c]ontrary to [the
2
In his brief, Harztog also discusses the retroactivity
of Booker and the district court’s use of his prior convictions
to enhance his sentence. It is not clear whether he intends to
challenge his sentence on these grounds; regardless, both claims
are foreclosed by Supreme Court and circuit precedent. See
Almendarez-Torres v. United States, 523 U.S. 224, 228 (1998)
(treating the fact of a prior conviction as a permissible
sentencing factor that need not be admitted by the defendant or
found by the jury beyond a reasonable doubt); United States v.
Alfaro, 408 F.3d 204, 211 (5th Cir. 2005) (noting post-Booker
that “Almendarez-Torres has not been overruled and is still good
law”); United States v. Austin, 432 F.3d 598, 599 (5th Cir. 2005)
(concluding that there was no ex post facto problem with the
district court’s application of the remedial holding of Booker at
sentencing).
19
defendant’s] argument, ‘Booker contemplates that, with the
mandatory use of the Guidelines excised, the Sixth Amendment will
not impede a sentencing judge from finding all facts relevant to
sentencing’”) (quoting Mares, 402 F.3d at 519). Therefore, the
district court acted within the confines of Booker when it
determined that the evidence presented against Hartzog supported
the drug quantities alleged in the indictments.
Hartzog’s second sentencing argument is similarly misplaced.
U.S.S.G. § 3B1.1(a) instructs a sentencing court to increase a
defendant’s offense level by four levels “[i]f the defendant was
an organizer or leader of a criminal activity that involved five
or more participants or was otherwise extensive.” We review a
“district court’s determination that a defendant was a leader or
organizer under U.S.S.G. § 3B1.1(a) [as] a factual finding . . .
for clear error.” United States v. Villanueva, 408 F.3d 193, 204
(5th Cir. 2005). The testimony submitted at trial indicated that
Hartzog was the primary supplier of substantial quantities of
cocaine for over five individuals; therefore, the district
court’s sentencing enhancement under § 3B1.1 was not error, much
less plain error.
III. CONCLUSION
For the reasons stated above, Hartzog’s conviction and
sentence are AFFIRMED.
20