United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS January 22, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
)))))))))))))))))))))))))) Clerk
No. 04-51183
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UNITED STATES OF AMERICA
Plaintiff-Appellee,
v.
MICHAEL CURTIS LEWIS, also known as Bones; CHARLES SAMSON, also
known as Killer; MALACHI DAVID WREN; VICTOR WESLEY TUCKER, also
known as Pokey; DONNIE THOMPSON; MICHAEL NORRIS MARTIN, also
known as Mikey; BUDDY FORD; LEONARD DUANE GRIFFITH, also known as
Radar; JERRY WAYNE BEASON; SHANE SAMSON, also known as Buffy
Defendants-Appellants
Appeals from the United States District Court
for the Western District of Texas
Before JONES, Chief Judge, and REAVLEY and PRADO, Circuit Judges.
PRADO, Circuit Judge:
Following a three-week trial, a jury convicted Donnie
Thompson (“Thompson”), Michael Norris Martin (“Martin”), Buddy
Ford (“Ford”), Leonard Duane Griffith (“Griffith”), Jerry Wayne
Beason (“Beason”), and Shane Samson of conspiracy to manufacture
and distribute over fifty grams of methamphetamine or 500 grams
of a substance or mixture containing methamphetamine, in
violation of 21 U.S.C. § 846. The same jury convicted Michael
1
Curtis Lewis (“Lewis”), Charles Samson, Malachi David Wren
(“Wren”), and Victor Wesley Tucker (“Tucker”) of that offense and
of a continuing criminal enterprise involving more than 15,000
grams of methamphetamine, in violation of 21 U.S.C. § 848. Now
these defendants appeal, raising various objections to their
convictions and sentences.
I. FACTUAL AND PROCEDURAL BACKGROUND
On March 17, 2004, the grand jury sitting in the Midland-
Odessa Division of the Western District of Texas returned an
indictment against twenty-eight individuals for methamphetamine-
related offenses. Eighteen of these individuals pleaded guilty.
The ten defendants named above pleaded not guilty, and the case
proceeded to trial. Jury selection was held on June 28, 2004, and
the trial took place from June 28 to July 19, 2004.
At trial, the government attempted to prove a large
methamphetamine conspiracy centered on the Aryan Circle gang. The
Aryan Circle is a prison-based organization with a white-
supremacist ideology. Its members are, in theory, ranked
according to a militaristic hierarchy; membership may be
maintained inside and outside prison, though rank does not
necessarily carry over from one realm into the other. Most,
though not all of the defendants were members of the Aryan
Circle. The government’s proof was designed to show that the
Aryan Circle, led by Lewis, Charles Samson, Wren, and Tucker,
2
succeeded in dominating the methamphetamine trade in and around
Odessa, Texas. Law enforcement officers and the cooperating
witnesses testified to the methamphetamine-related activities of
the Aryan Circle members and their associates, including the
gathering by legal and illegal means of methamphetamine
“precursors,” such as cold medicines, batteries, and anhydrous
ammonia; the manufacture, or “cooking,” of methamphetamine; and
the sale and use of methamphetamine-containing substances.
The jury found each defendant guilty of the charges against
him. The defendants moved unsuccessfully for a judgment of
acquittal pursuant to Federal Rule of Criminal Procedure 29.
Lewis, Charles Samson, Wren, and Tucker were each sentenced to
life in prison, the mandatory term under the continuing criminal
enterprise conviction; the court ordered no sentence for these
defendants’ conspiracy convictions because conspiracy is a lesser
included offense of continuing criminal enterprise. The district
court sentenced Griffith to thirty years in prison, Martin to 210
months in prison, Beason to 130 months in prison (the sentence
was subsequently reduced to 120 months), Thompson to 189 months
in prison, Ford to 324 months in prison, and Shane Samson to 156
months in prison for their conspiracy convictions.
II. JURISDICTION
These are direct appeals from a final judgment of the United
States District Court, which has jurisdiction over all offenses
3
against the United States. This court has jurisdiction pursuant
to 28 U.S.C. § 1291.
III. DISCUSSION
A. Continuing Criminal Enterprise
Lewis, Charles Samson, Wren, and Tucker challenge their
convictions for a continuing criminal enterprise involving more
than 15,000 grams of a substance containing methamphetamine. To
establish a continuing criminal enterprise, the government must
prove that (1) the defendant organized, supervised, or managed at
least five persons1 (2) in a continuing series of drug violations
(3) from which the defendant received substantial income. See 21
U.S.C. § 848(c); United States v. Bass, 310 F.3d 321, 325-26 (5th
Cir. 2002). Section 848 is “designed to apply to leaders of
large-scale narcotics operations.” Bass, 310 F.3d at 326.
Most significant to these appeals is the first element: that
of organizing, supervising, or managing at least five persons in
the drug trade. This court has stated that “[t]he terms
‘organized,’ ‘supervised,’ and ‘managed’ are not words of art and
should be interpreted according to their every day meanings.”
United States v. Gonzales, 866 F.2d 781, 784 (5th Cir. 1989).
Several other circuits have held that the term “organizer” as
1
The precise wording of the statute is “in concert with five
or more other persons with respect to whom [the defendant]
occupies a position of organizer, a supervisory position, or any
other position of management.” 21 U.S.C. § 848(c)(2)(A).
4
used in § 848 implies a person who exercises some degree of
managerial authority, rather than one who merely coordinates
various players. See, e.g., United States v. Lindsey, 123 F.3d
978, 986-87 (7th Cir. 1997); United States v. Williams-Davis, 90
F.3d 490, 508-09 (D.C. Cir. 1996); United States v. Witek, 61
F.3d 819, 822-24 (11th Cir. 1995); United States v. Jerome, 942
F.2d 1328, 1331 (9th Cir. 1991). This circuit has not had
occasion to decide this precise question. See United States v.
Garcia Abrego, 141 F.3d 142, 167 n.11 (5th Cir. 1998)
(acknowledging the law in these other circuits but stating that
the court need not then decide the question). This court has,
however, held that without additional indicia of control, a mere
buyer-seller relationship is insufficient to establish liability
under § 848. Bass, 310 F.3d at 327. We cited the Eleventh
Circuit’s explanation that “a contrary interpretation would do
violence to the common-sense meaning of the words ‘organizer’ and
‘supervisor’ and extend 848’s reach beyond the scope Congress
intended.” Id. at 327-28 (citing Witek, 61 F.3d at 822). We also
commented that our holding was consistent with the rule of lenity
applied where a criminal statute’s terms are ambiguous. Bass, 310
F.3d at 328 n.27. This holding in Bass supports the principle
that “organizer” within the meaning of § 848 requires indicia of
control or authority.
Lewis, Charles Samson, Wren, and Tucker each argue that the
evidence at trial was legally insufficient to prove the elements
5
of continuing criminal enterprise. This opinion examines in turn
the merits of their arguments.
1. Standard of Review
Where, as here, a defendant objected to the sufficiency of
the evidence at the trial level, the well-established standard of
review is whether a reasonable jury could find that the evidence
establishes the guilt of the defendant beyond a reasonable doubt.
United States v. Menesses, 962 F.2d 420, 426 (5th Cir. 1992). We
view the evidence in the light most favorable to the government
and give the government the benefit of all reasonable inferences
and credibility choices. United States v. Harvard, 103 F.3d 412,
421 (5th Cir. 1997).
2. Lewis
Lewis contends that the government’s proof at trial failed
to demonstrate that he had sufficient control over any of the
participants on the Odessa drug trade so as to make him a leader,
organizer, or manager of a continuing criminal enterprise. We
agree that the government’s evidence falls short of satisfying
the first element of a continuing criminal enterprise: that the
defendant organized, supervised, or managed at least five persons
in the drug trade. The government appears to have capitalized on
the facts that Lewis co-founded the Aryan Circle Odessa Chapter
in 1997 and held the exalted title of “District Captain” within
that chapter. But these facts do not prove that Lewis was a
6
leader or organizer of the methamphetamine trade in which many
Aryan Circle members were, without question, involved. Lewis was
incarcerated throughout the majority of the period covered by the
indictment.2 With a few exceptions, references to Lewis in the
trial testimony relate only to his use of methamphetamine, not to
a role as an organizer of the methamphetamine trade.
The government points to several pieces of evidence as
satisfying the first element of continuing criminal enterprise.
First, the government claims that Curtis Perkins (“Perkins”)
testified at trial that Lewis recruited him to participate in the
methamphetamine trade in Odessa. The claim that Lewis “recruited”
Perkins to join the methamphetamine trade stems from a single
conversation that Lewis had with Perkins while both were in
prison and Perkins was preparing to leave. Lewis allegedly told
Perkins that Perkins could get involved with the methamphetamine
trade in Odessa, where the Aryan Circle had the trade “pretty
well locked up,” and that Perkins could parole to Lewis’s ex-
wife’s home. This testimony does not establish that Lewis
supervised, managed or otherwise exerted control over Perkins,
merely that he gave him information and advice.
The government also points to Perkins’ testimony that Lewis
later told him that Lewis had partnered with Tucker and that they
2
Specifically, he was incarcerated from April 2000 to April
2001, July 2001 to June 2003, September 2003 to November 2003,
and February 2004 to the time of trial.
7
were producing and selling ten ounces of methamphetamine per
week. Perkins did not say that he had observed Lewis working with
Tucker, and Perkins’ testimony was not corroborated. Jeff Jordan
(“Jordan”) testified that Lewis said that Tucker was cooking
methamphetamine every week and giving Lewis some for free, but
this does not suggest a business relationship between the two
Moreover, Perkins’ statement does not indicate that Lewis was
managing Tucker, or anyone else Tucker was working with.
Johnny Hines, Jr. (“Hines, Jr.”), testified that he was
present at a meeting where Lewis advised members to slow down
their methamphetamine selling because it was generating too much
“heat” from law enforcement. He also testified that Lewis advised
people to stop dealing with Charles Samson if he continued to
“burn them” for methamphetamine or money. This testimony
similarly does not establish that Lewis had control or authority
over those people, especially given that Lewis’s advice was
thoroughly disregarded.3
Finally, the government points to testimony that Lewis told
two persons that there would be retaliation against anyone who
took the stand to testify in this case. Lewis’s alleged threats
that harm would come to Aryan Circle members who testified
3
While the government need not prove that a defendant had
absolute control over the persons he is alleged to have
organized, supervised or managed, some evidence that when the
defendant gave instructions, they were on some occasions obeyed
is necessary to demonstrate indicia of control.
8
against other Aryan Circle members do not establish his
involvement in the methamphetamine trade, nor that he supervised,
managed or organized anyone in that trade.
This weak evidence of managerial control over individuals in
the methamphetamine trade may be contrasted with numerous witness
statements that Lewis was merely a methamphetamine user. In sum,
the evidence presented by the government was not nearly strong
enough to dispel in the mind of a reasonable jury a reasonable
doubt that Lewis organized, supervised, or managed at least five
persons in the methamphetamine trade.
3. Charles Samson
Charles Samson argues that evidence at trial was legally
insufficient to prove that he was a leader, organizer, or manager
of a continuing criminal enterprise, or that he received
substantial income or resources from drug activities.
Evidence of leadership is strongest against Charles Samson.
Hines, Jr., testified with regard to Charles Samson’s role in
methamphetamine production and distribution that he was “was one
the key figures in it. He was the figure, really.” Hines, Jr.,
testified that Charles Samson “told us where to produce it, how
to produce it, you know, helped us produce it, helped us sell
it.” Hines, Jr., testified that he, Buddy Ford, and other cooks
were making methamphetamine for Charles Samson, and that Shane
Samson was getting pills for Charles Samson every day. Hines,
9
Jr., named five other people as supplying pills and anhydrous
ammonia for Charles Samson.
Jordan testified that “if we was told to do something, we
had to do it because [Charles Samson] was our district captain.
If he told us to cook and we didn’t cook, we’d get disciplined
for it.” Persons who were told to cook by Charles Samson were
said by Jordan to include Chris Barrandey (“Barrandey”), Hines,
Jr., and Timothy Bishop. Jordan testified that Samson would get a
quarter or a half share from most of the cooks that took place,
including cooks by Hines, Jr., Barrandey, and Wren. Jordan
testified that Samson and Johnny Hines, Sr., beat up Perkins
because Perkins refused to cook for Samson.
Tony Wilkins (“Wilkins”) testified that if you cooked
methamphetamine in West Odessa, “Charlie Samson was going to get
his part” of the cook and further stated “he’d have people bring
me out there to his house to get his part, what he felt he was
owed.” Wilkins testified that he cooked numerous times at Charles
Samson’s house and that he attended meetings at Charles Samson’s
house where participants in the methamphetamine business
discussed obtaining supplies. He stated that Charles Samson was
“the boss or the leader” at those meetings.
There is more testimony regarding Charles Samson, but the
preceding excerpts suffice to establish that a reasonable jury
could conclude beyond a reasonable doubt that Charles Samson
10
organized, supervised, or managed at least five people in the
drug trade.
Samson objects that there is not sufficient evidence to
prove that he received substantial income or resources from the
drug trade. Section 848 does not specify what level of income or
resources qualifies as “substantial income or resources.” As
Samson points out, in many cases where a continuing criminal
enterprise conviction was upheld, there was far more evidence of
wealth than exists in this case. See, e.g., United States v.
Wilson, 116 F.3d 1066, 1088 (5th Cir. 1997)(vacated in part on
other grounds by United States v. Brown, 161 F.3d 256 (5th Cir.
1998)) (defendant owned eleven cars); United States v. Chagra,
669 F.2d 241, 257 (5th Cir. 1982)(overruled on other grounds by
Garrett v. United States, 471 U.S. 773 (1985))(appellant had
“lavish personal expenditures”). Here, the government did not
present evidence regarding cars, real estate, bank accounts, or
other items of value owned by Charles Samson. Yet this court has
also held that “[t]he requirement that a defendant obtain
substantial income from drug trafficking is satisfied by showing
that many thousands of dollars changed hands, and that some was
received by the defendant.” United States v. Gonzales, 866 F.2d
781, 784 (5th Cir. 1989). The evidence presented at trial leaves
no doubt that thousands of dollars of methamphetamine was
produced, and by taking a portion of most cooks, Charles Samson
11
obtained a substantial share. The Second Circuit has stated that
the substantial income requirement is met where the defendant had
no legitimate income and was able to purchase drugs and finance
his living expenses. United States v. Joyner, 201 F.3d 61, 72 (2d
Cir. 2000). The record indicates that Charles Samson had no
legitimate source of income during the period covered by the
indictment, yet paid his living expenses and obtained a steady
supply of methamphetamine. A reasonable jury could have concluded
beyond a reasonable doubt that Charles Samson obtained
substantial income or resources from his drug violations.
4. Wren
Wren argues that the government failed to prove beyond a
reasonable doubt each element of a continuing criminal
enterprise. We hold that the evidence of Wren’s organizing,
supervising, or managing five or more persons in the drug trade
was insufficient to support his conviction for continuing
criminal enterprise.
Evidence regarding Wren’s official status within the Aryan
Circle varied. Wren claims that he never became a “member” of the
Aryan Circle; as he never completed his nine-month probationary
period, during which he was a “recruit” or “prospect.” Others
testified that Wren achieved the rank of “sergeant at arms;”
others that this was only his “prison rank.” But Wren’s official
rank in the Aryan Circle is of secondary importance. The
12
government points to Wren’s alleged role in “smashes,” or
assaults, which the government claims Wren organized to further
the methamphetamine conspiracy. Barrandey testified regarding one
“smash,” stating that after Leo McCarty (“McCarty”) sold him bad-
smelling anhydrous ammonia on several occasions, Wren suggested
that he, Barrandey, and Jordan go beat up McCarty, which they
did. This testimony does not indicate that Wren supervised,
organized, or managed Barrandey, Jordan, or McCarty. Barrandey’s
testimony makes clear that Wren was subordinate to him, for he
was Wren’s “prospector,” or sponsor into the Aryan Circle. Hines,
Jr., mentions a smash conducted by Wren, but then explains that
“it was over a girl, I believe, one of our prospects.” Jordan
testified that “Chris Barrandey and Malachi Wren told me” to rob
Randy Barnes. This could be construed as evidence that Wren was
an organizer or supervisor of Jordan, though more likely the
person doing the organizing in this instance was Barrandey.
Hines, Jr., offered somewhat confused testimony that Aryan
Circle “sergeants at arms” transmitted orders from Charles Samson
to certain cooks that they were required to sell their
methamphetamine to Aryan Circle members. Hines, Jr., also stated
that “Malachi Wren was a sergeant at arms at one time.” But this
testimony, while it might imply that Wren transmitted orders to
certain cooks, does not establish that they followed those
orders. Multiple witnesses testified that cooks sold to whoever
13
was willing to buy, inside or outside of the Aryan Circle.
Most significantly, when asked which five persons Wren had
organized, managed, or supervised, Hines, Jr., stated “Jeff
Jordan, myself, Shane Samson. There was a bro named Redwood. Tony
Wilkins was supposed to be AC . . .” and also stated “Susan
Creel, Tony Rister.” When asked how Wren had organized or managed
Jordan, Hines, Jr., stated “[h]e took him to Floydada. They went
up there and got anhydrous and did a cook.” When asked how Wren
organized or managed him, Hines, Jr., stated “[t]here was a few
times he would come by my shop and get–-get valves or get pieces
for his tanks, and he would need to go up there when he would go
steal anhydrous.” When asked how Wren supervised, organized or
managed Shane Samson, Hines, Jr., testified “I’ve seen Shane
Samson giving pills before, and batteries, for a cook.” When
asked about what Wren did in regard to Redwood, Hines, Jr.,
stated “I just know he come down here a couple times and picked
up methamphetamine. I don’t know if he was bringing the pills or
if he was really in the picture with [Wren].” When asked how Wren
was organizing Wilkins, Hines, Jr., stated “Tony would have–-I
believe they would get pills, anhydrous. I mean, you know, you
just—-one day somebody might have the pills; somebody else might
have the anhydrous. You just get together. What one person has,
the other one might need.” When asked how Wren organized Creel or
Rister, Hines, Jr., responded “[h]e would tell them to go get the
14
pills and then give them a percentage off the cook.”
This testimony indicates sporadic cooperation or
coordination between Wren and other parties, but not control or
authority by Wren over five or more persons. Hines, Jr.’s
descriptions of the exchange of supplies between Wren and parties
such as Shane Samson and Hines, Jr., evidence only buyer-seller
relationships, without the other indicia of control required by
Bass. Section 848 is designed to reach the "top brass" in the
drug rings, not the lieutenants and foot soldiers. Garrett v.
United States, 471 U.S. 773, 781 (1985). In sum, the evidence
presented by the prosecution was not strong enough to eliminate a
reasonable doubt that Wren organized, supervised, or managed at
least five persons in the methamphetamine trade.
5. Tucker
As an initial matter, Tucker argues that the district court
erred by denying his motion to suppress evidence that the police
obtained from a warrantless search of his hotel room. We review
the district court’s factual findings for clear error and its
Fourth Amendment conclusions de novo. United States v. Gonzalez,
328 F.3d 755, 758 (5th Cir. 2003). The following facts are
undisputed. Tucker and two women, Caldwell and Gillian, occupied
a hotel room at the Days Inn. While Tucker was absent, police and
hotel staff knocked on the door. Caldwell answered the door. When
she turned to retrieve her identification, a police officer
placed his foot in the door. Caldwell motioned for the officers
15
to come in. After the officers asked if there were drugs present
and stated that a drug dog was on its way, Gillian told the
officers that there were drugs in a black bag located in the
room.
We conclude that Tucker’s Fourth Amendment claim is
meritless. As the district court stated, the officer’s “knock and
talk” strategy is a reasonable investigative tool. See United
States v. Gould, 364 F.3d 578, 590 (5th Cir. 2004). The officers
reasonably interpreted Caldwell’s gesture as an invitation to
enter the room. See United States v. Cotnam, 88 F.3d 487, 490
(7th Cir. 1996). The officers did not search the room
immediately, but only after Gillian’s admission that there were
drugs in the room created probable cause. See United States v.
Jones, 239 F.3d 716, 720 (5th Cir. 2001) (after “knock and talk,”
plain view of gun justified search under exigent circumstances).
The district court concluded that, after Gillian’s
admission, the officers’ search was justified by exigent
circumstances. Because the presence of exigent circumstances is
in essence a factual determination, we review only for clear
error. United States v. Howard, 106 F.3d 70, 74 (5th Cir. 1997).
In this case, the officers could have reasonably believed that
the contraband would be removed if they left to obtain a warrant.
See United States v. Blount, 123 F.3d 831, 837 (5th Cir. 1997)
(stating that factors indicating an exigent circumstance include
“the ready destructibility of the contraband and the knowledge
16
that efforts to dispose of narcotics and to escape are
characteristic behavior of persons engaged in the narcotics
traffic.”). The district court did not clearly err in finding
that exigent circumstances existed. We uphold the district
court’s decision to deny Tucker’s motion to suppress.
Tucker next argues that the evidence at trial was
insufficient to support his conviction for continuing criminal
enterprise. Like Lewis, Tucker was in prison for most of the
period covered by the indictment. When out of prison, however, he
was by all accounts a prolific cook of methamphetamine, the
dominant cook within the Aryan Circle group. Lance Morris
(“Morris”) testified that Tucker had used Morris’s house to cook
methamphetamine many times and was in general cooking
methamphetamine “every day, every other day.” Jordan testified
that Tucker told him that he was “cooking over, probably, a pound
a week.”
Tucker argues that the overt acts in which he was named, if
they occurred at all, were only “indicative of a conspiracy on
that day for the benefit of the participants that day.” However,
based on evidence of Tucker’s very frequent methamphetamine cooks
and of the interlocking relationships of participants in the
Odessa, Texas drug trade, it was reasonable for the jury to
conclude that Tucker’s activities formed part of an ongoing
conspiracy. Whether a single conspiracy or multiple conspiracies
existed is not dispositive, so long as the elements of § 848 are
17
satisfied.
Tucker claims that there is no evidence that he organized,
supervised, or managed anyone. The record suggests otherwise.
Morris testified that he gathered precursors for Tucker’s
methamphetamine cooks and received a portion of Tucker’s
methamphetamine cook in return. Morris also testified that he saw
Martin at Tucker’s house multiple times, preparing to cook
methamphetamine.4 Jordan testified that persons working with
Tucker in the methamphetamine business were Wilkins (“Tony
Wilkins and [Tucker] was cooking dope together and selling dope
together”), John Self (“John Self, I know, was selling his dope”)
Cindy Hines, and Tucker’s 15-year old nephew “Kid” (“[Kid] told
me he was cooking for [Tucker]”).
Wilkins testified that the first methamphetamine cook he did
when out of prison was for the benefit of Tucker and Charles
Samson. He testified that he had wanted to get out of the drug
business, but felt compelled to begin cooking again.
Subsequently, Wilkins testified, he and Tucker cooked substantial
quantities of methamphetamine approximately every other day for a
two-to-three month period. Susan Creel (“Creel”) testified that
4
The government’s brief claims that Morris’s testimony
established that “other Aryan Circle members who gathered pills
and precursors for Appellant Tucker and Wilkins to cook the
methamphetamine” were Kevin Renfro, Charles Samson, and Michael
Lewis, but Morris’s testimony does not in fact contain this
information.
18
she regularly bought finished methamphetamine from Tucker and
would resell the methamphetamine. Patrick Daniel Catoe (“Catoe”)
testified that he once observed Tucker trade pills for
methamphetamine with a juvenile, Danny Hallbrook.5
It is not clear that Tucker’s relationship with each of the
above-named persons rose beyond the level of buyer-seller. Based
on her testimony, it appears that Creel had only a buyer-seller
relationship with Tucker–-whenever she wished, she traded the
cash she had on hand for his methamphetamine, which she resold,
retaining the profits herself. But the jury was entitled to infer
that in order to keep his large-scale methamphetamine production
operation running, Tucker needed to exercise a degree of control
or authority over many of the persons supplying him with
precursors and selling the finished product. An element of
control or authority is especially likely in the case of the two
juveniles who were seen trading or cooking with Tucker. Jury
members could also have concluded that Tucker was supervising or
otherwise exercising control over Morris, Martin, Cindy Hines,
and John Self. Finally, the jury could have reasonably concluded,
based on Wilkins’ testimony, that he was under the authority of
Tucker, although other testimony suggested that the two were
equal partners. It is not required that the jury agree
5
The statement in the government’s brief that Catoe
testified that he himself traded with Tucker is not found in the
record.
19
unanimously as to the identities of the five or more people being
organized, supervised, or managed. United States v. Short, 181
F.3d 620, 624 (5th Cir. 1999). There is sufficient evidence in
the record for the jury to have reasonably concluded beyond a
reasonable doubt that Tucker organized, supervised, or managed at
least five persons in the methamphetamine trade.
Tucker next argues that he did not receive substantial
income or resources from the sale of drugs. As with Charles
Samson, Tucker had no legitimate source of income during his
period out of prison, yet he managed to pay living expenses and
finance his extensive meth-cooking activities. Creel testified
that she paid Tucker approximately $150 nearly every day for
methamphetamine, and the record indicates that she was only one
of numerous sellers who bought their supply from Tucker. The
evidence is sufficient for a reasonable jury to have concluded
that Tucker obtained substantial income or resources from his
drug violations.
Finally, Tucker argues that the evidence is insufficient to
support a jury finding that he was responsible for more than
15,000 grams of a substance containing methamphetamine. FBI Agent
Espenshade testified that, conservatively estimated, Tucker and
Wilkins produced 10,080 grams of a substance containing
methamphetamine. The total amount attributed to the Aryan Circle
group was over thirty-one kilograms of a substance containing
methamphetamine. In accordance with ordinary principles of
20
conspiracy liability, not only methamphetamine produced by Tucker
but also methamphetamine produced or sold by his co-conspirators
may be attributed to Tucker. Even if the jury could not have
concluded beyond a reasonable doubt that the testimony in this
case proved a single conspiracy, the jury could have reasonably
found that Tucker was linked by his relationships with Wilkins,
Martin, and Charles Samson to sufficient quantities of
methamphetamine that when these quantities were added to the more
than ten kilograms of methamphetamine that Tucker himself
produced, the total reached more than fifteen kilograms.
B. Conspiracy
Defendants Wren, Thompson, Ford, Shane Samson, Griffith,
Beason, and Martin challenge their convictions for conspiracy to
distribute more than fifty grams of methamphetamine or 500 grams
of a substance containing methamphetamine. To establish a
conspiracy under § 846, “the government must prove beyond a
reasonable doubt that (1) an agreement existed between the
defendant and one or more persons to violate the applicable
narcotics laws; (2) each defendant knew of the conspiracy and
intended to join it; and (3) the defendant participated
voluntarily in the conspiracy.” United States v. Infante, 404
F.3d 376, 385 (5th Cir. 2005). “An express agreement is not
required; a tacit, mutual agreement with common purpose, design,
and understanding will suffice.” Id. Further, “[t]he government
need not prove an overt act to show participation in a
21
conspiracy.” United States v. Turner, 319 F.3d 716, 721 (5th Cir.
2003).
1. Motions for Severance
Thompson, Ford, Griffith, Beason, and Martin argue that the
trial court erred by denying their motions for a severance. We
review a grant or denial of severance for abuse of discretion.
United States v. Sudeen, 434 F.3d 384, 387 (5th Cir. 2005). A
severance is reversible only on a showing of specific compelling
prejudice. Id. “There is a preference in the federal system for
joint trials of defendants who are indicted together,”
particularly in conspiracy cases. Zafiro v. United States, 506
U.S. 534, 537 (1993); United States v. Scott, 796 F.2d 1245, 1250
(5th Cir. 1986). “When the risk of prejudice is high, a district
court is more likely to determine that separate trials are
necessary, but . . . less drastic measures, such as limiting
instructions, often will suffice to cure any risk of prejudice.”
Id.
Historically, this court has been reluctant to vacate a
conviction because the district court refused to sever a trial.
See United States v. Bieganowski, 313 F.3d 264, 287 (5th Cir.
2002) (“A spillover effect, by itself, is an insufficient
predicate for a motion to sever.”); United States v. Peterson,
244 F.3d 385, 393 (5th Cir. 2001) (concluding that a limiting
instruction cured risk of prejudice of evidence used against a
codefendant); United States v. Rocha, 916 F.2d 219, 228-29 (5th
22
Cir. 1990) (“[S]everance is required on the basis of a disparity
in the evidence only in the most extreme cases.”). The defendant
must “isolate events occurring in the course of the trial and
then . . . demonstrate that such events caused substantial
prejudice.” United States v. Booker, 334 F.3d 406, 415 (5th Cir.
2003).
These defendants complain broadly of the volume of evidence,
the disparity of evidence between defendants, and a generalized
spillover effect. None point to any specific prejudice resulting
from their combined trial. The district court did not abuse its
discretion in denying their motions for severance.
2. Material Variance
Defendants Wren, Thompson, Ford, Shane Samson, Griffith,
Beason, and Martin each argue that there was a material variance
between the indictment and the government’s proof at trial that
prejudiced them. To prevail on a material variance claim, the
defendants “must prove that (1) a variance existed between the
indictment and the proof at trial, and (2) the variance affected
their substantial rights.” United States v. Pena-Rodriguez, 110
F.3d 1120, 1126 (5th Cir. 1997).
These defendants argue that the government did not proffer
sufficient evidence to prove that there was a single, overarching
methamphetamine conspiracy in the Odessa, Texas region. They
point to evidence suggesting that if the Aryan Circle attempted
to control the drug trade in this region, these efforts failed
23
because of disorganization, internal rivalries, and the
participants’ own drug addictions. These defendants argue that to
the extent that there was evidence presented at trial supporting
a conviction for conspiracy, this evidence could prove only small
conspiracies involving one or two other people.
The evidence in this trial is strongly conflicting as to
whether there was a single conspiracy or multiple loose-knit,
frequently shifting circles. This court has held, however, that
“when the indictment alleges the conspiracy count as a single
conspiracy, but the government proves multiple conspiracies and a
defendant’s involvement in at least one of them, then clearly
there is no variance affecting that defendant’s substantial
rights.” United States v. Faulkner, 17 F.3d 745, 762 (5th Cir.
1994) (internal quotation marks omitted). This principle is
applicable to the case at hand if it was proved that each of the
defendants who raise this objection took part in a conspiracy
involving more than fifty grams of methamphetamine or 500 grams
of a substance containing methamphetamine.
Wren: Multiple witnesses testified to Wren’s involvement in
methamphetamine cooking. Hines, Jr., testified that Wren had
obtained supplies for methamphetamine cooking from him, that
Shane Samson gave Wren pills and batteries for a cook, and that
Wren had cooked with Jordan. There was testimony that both Creel
and Rister had traded pills for finished methamphetamine with
Wren. Rister testified that Wren had cooked methamphetamine a few
24
times at Rister’s house. Moreover, Barrandey testified that Wren
was his “right-hand man,” and Barrandey had a significant role in
the methamphetamine trade. While not sufficient to demonstrate a
leadership role by Wren, this evidence does satisfy the elements
of conspiracy. A reasonable jury could have found that Wren was
part of a conspiracy to distribute more than fifty grams of a
methamphetamine.
Thompson: Thompson argues that “even if [he] was
manufacturing methamphetamine, it was not as part of the Aryan
Circle conspiracy.” Multiple witnesses described Thompson as a
methamphetamine cook who traded with members of the Aryan Circle.
Hines, Jr., testified that Thompson was a cook who also supplied
anhydrous ammonia to other cooks. Hines, Jr., testified that
Thompson sold methamphetamine to himself and to Charles Samson.
Paul Baumgardner (“Baumgardner”) testified that he learned to
cook methamphetamine from Thompson and that every day from May to
August 2002, he and Thompson would make an ounce of
methamphetamine. Brandon Verette testified that Thompson drove
him to the store to get pills between ten and twenty times, and
that Thompson would get a portion of the resulting
methamphetamine cook. Even if Thompson cannot beyond a reasonable
doubt be included in a larger Aryan Circle conspiracy, the
evidence was sufficient to convict Thompson of a conspiracy to
distribute more than fifty grams of methamphetamine.
Ford: Testimony established that Ford was not a member of
25
the Aryan Circle, but that he was a highly productive
methamphetamine cook who regularly sold to the Aryan Circle
members. Hines, Jr., testified that in January 2002 he began to
buy a quarter ounce of methamphetamine per day from Ford. He
testified that he saw Ford cook two to five ounces of
methamphetamine on fifteen to twenty occasions at the houses of
Hines, Jr., and Charles Samson. Wilkins testified that in the
fall of 2002, he began to partner with Ford in cooking
methamphetamine every other day for two-and-a-half to three
months, approximately thirty-eight times in total. Each cook they
did included over 3000 pills, yielding at least seven ounces of
methamphetamine. Wilkins and Ford traded finished methamphetamine
for precursors with Charles Samson and Shane Samson, among
others. The evidence is clearly sufficient to establish that Ford
took part in a conspiracy to distribute over fifty grams of
methamphetamine.
Shane Samson: Hines, Jr., testified that Shane Samson
obtained pills and batteries for methamphetamine cooks on a daily
basis. Jordan testified that Shane Samson gathered pills and
other precursors for Charles Samson and sold methamphetamine.
Jordan and Wilkins testified that Shane Samson would receive a
quarter ounce of methamphetamine for a thousand pills. Other
witnesses testified that Shane Samson obtained pills for Wren,
Barrandey, Ford, and Wilkins. Roger Bidwell (“Bidwell”) and Catoe
each testified that they purchased methamphetamine from Shane
26
Samson. The evidence is clearly sufficient to establish that
Shane Samson took part in a conspiracy to distribute over 50
grams of a methamphetamine.
Griffith: It is undisputed that Griffith is a high-ranking
member of the Aryan Circle. It is also undisputed that Griffith
was incarcerated for the majority of the period covered by the
indictment: from July 2, 2000, to July 10, 2002, and from
September 21, 2002, through this trial. Multiple witnesses
testified that Griffith was opposed to the Aryan Circle’s
involvement in the methamphetamine trade. But several witnesses
also testified that Griffith sold methamphetamine during the two
months that he was out of prison. Hines, Jr., testified that
every day of the month-long period in which Griffith stayed at
his house, he gave Griffith methamphetamine to sell and Griffith
brought back money. Bidwell testified that Griffith sold
methamphetamine from Bidwell’s house on approximately five
occasions over a two-week period. Jordan testified that after
Griffith returned to prison, he told Jordan that he had sold and
cooked methamphetamine while out. Accordingly, a reasonable jury
could have concluded that Griffith took part in a conspiracy to
distribute over 50 grams of methamphetamine.
Beason: Testimony indicated that defendant Beason prospected
for thirty days with the Aryan Circle but was dropped. Evidence
linking Beason with the methamphetamine trade is not vast. Hines,
Jr., testified that Beason cooked methamphetamine on his property
27
three times, with yields of approximately half of an ounce of
methamphetamine. On cross-examination, Hines, Jr., conceded that
the first cook produced only about an eighth of an ounce. Bidwell
testified that Beason sold him an “eight-ball,” or an eighth of
an ounce, of methamphetamine on one occasion. Martin testified
that Beason once sold him a quart of anhydrous ammonia, which is
capable of producing an ounce of methamphetamine when combined
with other ingredients. Perkins testified that Charles Samson
told him that Beason was going to do a cook for Samson to pay
Samson the money he was owed, but there was no evidence presented
indicating that this cook took place or the quantity owed. Jerry
Witt testified that he once had a conversation with Beason about
a technique for cooking methamphetamine.
Beason’s involvement in the methamphetamine trade appears to
have been sporadic, and he is directly linked with only small
quantities of methamphetamine. Still, Beason’s three cooks with
Hines, Jr., who played a central role in the methamphetamine
trade, testified to having cooked up to sixty ounces of
methamphetamine, and was closely involved with Charles Samson,
are enough to allow a reasonable jury to conclude that Beason was
part of a larger methamphetamine conspiracy. Accordingly, there
is sufficient evidence to link Beason with a conspiracy involving
more than fifty grams of methamphetamine.
Martin: Numerous persons testified to defendant Martin’s
involvement with multiple levels of the methamphetamine trade.
28
Jordan testified that Martin cooked methamphetamine with Gary
Martin and Rister and also sold methamphetamine. Barrandey
testified that Martin got pills for him, went with him to get
anhydrous, and helped him to cook. Hines, Jr., testified that
Martin was among the members of the Aryan Circle who sold
methamphetamine for Charles Samson. Perkins testified that Martin
sold methamphetamine for him. Morris testified that on at least
ten occasions, Martin gathered pills and other precursors for
Tucker and Wilkins. Gary Martin testified that he and Martin
cooked together on two or three occasions. Calvin Bailey
testified that Martin sold methamphetamine from his house. This
evidence is sufficient to link Martin with a conspiracy involving
over fifty grams of methamphetamine.
3. Sufficiency of the Evidence
Defendants Thompson, Shane Samson, Griffith, Beason and
Martin argue that the evidence at trial was legally and factually
insufficient to convict them of conspiracy to distribute more
than fifty grams of methamphetamine or 500 grams of a substance
containing methamphetamine. As the preceding section indicates in
some detail, the evidence presented at trial was sufficient to
convict each of these defendants.
C. Denial of Continuance
Defendant Thompson argues that the district court erred in
denying his motion for continuance. Thompson argues that because
his counsel was appointed ten days before trial, he did not have
29
adequate time to prepare for trial. This court reviews the
district court’s decision to grant or deny a continuance for
abuse of discretion. United States v. Walters, 351 F.3d 159, 170
(5th Cir. 2003). Further, this court will order a new trial only
where the defendant can show that he has suffered serious
prejudice. United States v. Messervey, 317 F.3d 457, 462 (5th
Cir. 2002). Factors to be considered where a party complains of
inadequate preparation time include: (1) the amount of
preparation time available, (2) whether the defendant took
advantage of the time available, (3) the likelihood of prejudice
from a denial, (4) the availability of discovery from the
prosecution, and (5) the complexity of the case. United States v.
Scott, 48 F.3d 1389, 1393 (5th Cir. 1995).
This case was indeed complex: it involved ten defendants,
even more witnesses, and voluminous discovery. Ten days does
appear to be an excessively short length of time to prepare a
defense in such a case. Yet there is no evidence that Thompson
was seriously prejudiced by the denial of his request for a
continuance. Thompson’s attorney effectively challenged the
witnesses–-including Baumgardner, Max Mays, and Hines, Jr.–-who
implicated his client, made intelligent arguments in his opening
and closing statements minimizing Thompson’s role, and benefitted
from the arguments of other defense counsel challenging the
credibility of witnesses and portraying the participants in the
methamphetamine trade as fragmented and disorganized. We
30
therefore decline to order a new trial for Thompson.
D. Breach of Plea Bargain
Defendant Ford claims that by bringing against him the March
2004 indictment that lead to this trial, the government breached
its earlier plea agreement with him stemming from a January 2003
indictment. In the January 2003 indictment, Ford and his wife
were charged with one count of distributing methamphetamine on
May 13, 2002, one count of possession with intent to distribute
methamphetamine on May 16, 2002, multiple gun counts, and one
count for having maintained a place for manufacturing and
distributing methamphetamine from approximately May 13, 2002, to
June 10, 2002. In March 2003, Ford pled guilty to one gun count
pursuant to a plea agreement in which the government agreed to
dismiss the other counts against him.
This court reviews a claim of breach of a plea agreement de
novo, accepting the district court’s factual findings unless
clearly erroneous. United States v. Davis, 393 F.3d 540, 546 (5th
Cir. 2004)(internal citations omitted). We apply general
principles of contract law in order to interpret the terms of the
plea agreement. United States v. Cantu, 185 F.3d 298, 304 (5th
Cir. 1999). The defendant bears the burden of demonstrating the
underlying facts that establish the breach by a preponderance of
the evidence. United States v. Wittie, 25 F.3d 250, 262 (5th Cir.
1994). To assess whether a plea agreement has been violated, this
court considers “whether the government’s conduct is consistent
31
with the defendant’s reasonable understanding of the agreement.”
United States v. Valencia, 985 F.2d 758, 761 (5th Cir. 1993).
The issue raised here by Ford is similar to that presented
in Cantu. There, the appellant argued that the government alleged
the same conduct in the possession count dismissed pursuant to
his plea agreement and in the subsequent RICO count filed against
him. 185 F.3d at 305. This court concluded that it was not
reasonable for Cantu to believe that his plea agreement barred
the government from bringing a different charge in a future
prosecution. Id. We explained that “[t]he language of the plea
agreement is narrowly worded, speaking only to the government’s
obligation to dismiss ‘Count II of the First Superseding
Indictment.’” Id. We further found that Cantu was not prejudiced,
because although conduct that was the basis of the dismissed
charge was incorporated into the later charge as an overt act, it
was only one of nine overt acts presented by the government. Id.
At trial, the government adduced sufficient evidence bearing upon
the other eight overt acts to justify Cantu’s conviction. Id.
Here Ford argues that his dismissed aiding and abetting
charge was so similar to the conspiracy charge made in the March
2004 indictment as to preclude prosecution for that later charge.
Ford also notes that count two of the March 2004 indictment
includes as an overt act Ford’s manufacture of methamphetamine on
May 13, 2002, the same act that was a basis for his dismissed
aiding and abetting charge. As in Cantu, however, Ford’s plea
32
agreement does not contain any promise by the government not to
prosecute Ford for a different crime arising out of facts from
the first indictment. There is a substantial difference between
Ford’s aiding and abetting charge, which included only Ford’s
cooperation with his wife, and the March 2004 indictment, which
alleged Ford’s manufacture of methamphetamine for the Aryan
Circle group over a much broader time span. Moreover, the
testimony at trial focused not on Ford’s manufacturing activities
on or around May 13, 2002, but on his manufacture for Hines, Jr.,
and Charles Samson in January 2002 and with Wilkins in late
November 2002 through mid January 2003. Consequently, there was
no prejudice to Ford, and his conviction must stand.
E. Challenges to Sentencing Enhancements
1. Griffith and Martin
The district judge enhanced the sentences of defendants
Griffith and Martin under U.S.S.G § 3B1.1 for leadership roles in
the methamphetamine conspiracy. Griffith and Martin now raise two
objections to their sentence enhancements: first, a Sixth
Amendment objection to the judge’s application of the mandatory
Sentencing Guidelines; and, second, an objection to the
sufficiency of the evidence underlying the enhancement.
At trial, both Griffith and Martin raised objections under
Blakely v. Washington, 542 U.S. 296 (2004), to the district
court’s application of the Sentencing Guidelines, thus preserving
their Sixth Amendment challenge under United States v. Booker,
33
543 U.S. 220 (2005). See United States v. Saldana, 427 F.3d 298,
313-14 (5th Cir. 2005). Where the Booker objection is preserved
in the district court, we will vacate the sentence and remand,
unless we can say that the error is harmless under Rule 52(a) of
the Federal Rules of Criminal Procedure. United States v. Mares,
402 F.3d 511, 520 n.9 (5th Cir. 2005). The government bears the
burden of showing that the error was harmless beyond a reasonable
doubt. United States v. Pineiro, 410 F.3d 282, 285 (5th Cir.
2005). To show harmlessness, the government must demonstrate
beyond a reasonable doubt that the Sixth Amendment error did not
affect the sentence that the defendant received. Id.
At the sentencing hearings of both Griffith and Martin, the
district court declared that in the event that the Sentencing
Guidelines were declared unconstitutional, the court would award
Griffith and Martin the same sentences as it did applying the
Guidelines, 360 months and 210 months respectively. The
government therefore meets its burden of showing that the
district court’s Sixth Amendment error was harmless. See Saldana,
427 F.3d at 314-15.
Griffith was given a four-level sentence enhancement under
U.S.S.G § 3B1.1(a) for being “an organizer or leader of a
criminal activity that involved five or more participants or was
otherwise extensive.” Griffith objected at trial that there was
insufficient evidence to support this enhancement, and now raises
this claim upon appeal. After Booker, we continue to review the
34
district court’s interpretation of the Sentencing Guidelines de
novo and its factual findings for clear error. United States v.
Charon, 442 F.3d 881, 887 (5th Cir. 2006), cert. denied, 127
S.Ct. 260 (2006). The sentencing judge is entitled to find by a
preponderance of the evidence all the facts relevant to the
determination of a Guidelines sentencing range. United States v.
Johnson, 445 F.3d 793, 798 (5th Cir. 2006), cert. denied, 126 S.
Ct. 2884 (2006).
Factors to be considered in identifying an organizer or
leader include “the exercise of decision making authority, the
nature of participation in the commission of the offense, the
recruitment of accomplices, the claimed right to a larger share
of the fruits of the crime, the degree of participation in
planning or organizing the offense, the nature and scope of the
illegal activity, and the degree of control and authority
exercised over others.” U.S.S.G. § 3B1.1 cmt. n.4; United States
v. Valdez, 453 F.3d 252, 263 (5th Cir. 2006), cert. denied, 127
S.Ct. 456 (2006). Applying these factors, it is clear that the
evidence against Griffith falls short. While Griffith held a
leadership position in the Aryan Circle organization, the record
reveals that his involvement in the methamphetamine trade was
minor. As described above, the evidence regarding Griffith’s
methamphetamine participation indicated that he sold
methamphetamine fronted by Hines, Jr., for a month and sold
methamphetamine from Bidwell’s house on five occasions. There was
35
no evidence that Griffith exercised authority over either man in
these transactions. There is no evidence that Griffith recruited
accomplices or claimed a share of methamphetamine being produced
and sold by other members of the Aryan Circle. There is also no
evidence that Griffith took part in meetings at which
arrangements were made for gathering precursors and setting up
cooks.
The government points to evidence that Griffith told Hines,
Jr., that he did not like Aryan Circle members diluting the
methamphetamine that they sold to each other, and that he told
Perkins that if Perkins was going to continue to sell
methamphetamine, he needed to do it with his Aryan Circle
brothers. The evidence strongly indicates, however, that this
advice or instruction was not heeded, suggesting that Griffith
did not exercise control or authority over these individuals with
regard to the methamphetamine trade. The government also points
to evidence that Griffith made threats against those members of
the Aryan Circle who had agreed to testify in this case. Evidence
implicating Griffith in threats of this kind is strong; however,
the record as a whole shows that these acts were done to protect
the Aryan Circle organization rather than to further the aims of
a methamphetamine conspiracy. Griffith received a two-level
sentence enhancement for obstruction of justice, so his conduct
in this regard did not go unpunished.
Martin received a two-level enhancement under U.S.S.G.
36
§ 3B1.1(c) as an “organizer, leader, manager, or supervisor” in
any criminal activity other than one that involved five or more
participants or was otherwise extensive. Martin objected at trial
that there is insufficient evidence to support this enhancement,
and now renews this claim upon appeal. To qualify for an
adjustment under this section, the defendant must have been the
organizer, leader, manager, or supervisor of at least one other
participant. U.S.S.G. § 3B1.1 cmt. n.2. Our sister circuit has
held that instructing others to obtain precursors used to produce
methamphetamine is evidence of a managerial or supervisory role
for the purposes of § 3B1.1. United States v. Mesner, 377 F.3d
849, 851 (8th Cir. 2004).
Much of the testimony regarding Martin casts him in a
subordinate role: Martin accompanied Rister to collect a drug
debt; Martin obtained pills for Barrandey’s cook; Martin sold
methamphetamine for Charlie Samson and Perkins; Martin gathered
pills and precursors for Tucker and Wilkins. There was some
evidence that Martin was a methamphetamine cook. Gary Martin
testified that he and Martin cooked together a couple of times,
and Bidwell testified that he observed Gary Martin teaching
Martin how to cook methamphetamine. This evidence suggests that
Gary Martin, not Martin, took a managerial role in those cooks,
and it does not indicate that Martin had persons obtaining
precursors for those cooks. Jordan testified that he, Martin, and
Barrandey brought anhydrous ammonia to Perkins’ house, and that
37
they all then began to cook. This testimony does not indicate
that Martin had a managerial role in that cook. Rister testified
that he once saw Martin cooking methamphetamine “way out west of
town.” This testimony does not indicate that Martin was managing
others in cooking or gathering precursors.6
In finding that Martin “did direct others to get precursors
for methamphetamine,” the district court appeared to rely on the
statement by the United States attorney at the sentencing hearing
that “Mr. Bailey testified extensively that . . . Mr. Martin
would have Mr. Bailey gather up precursors on a regular basis for
Mr. Martin.” This is not an accurate reflection of Calvin
Bailey’s testimony. Bailey testified that Martin and Bailey’s
mother brought precursors to Bailey’s house, cooked
methamphetamine elsewhere, and then returned with finished
methamphetamine. Bailey did not indicate that he or other persons
were gathering precursors for Martin. Accordingly, we conclude
that the district court clearly erred in enhancing Martin’s
sentence as an organizer, leader, manager, or supervisor.
2. Ford
The district court enhanced Ford’s sentence on the basis
that Ford was responsible for between five and fifteen kilograms
of a substance containing methamphetamine. Citing Apprendi v. New
6
At the sentencing hearing, the district court stated that
Hines, Jr., testified that Martin cooked methamphetamine, but we
have not found evidence of that testimony in the record.
38
Jersey, 530 U.S. 466 (2000), Ford objects that this enhancement
violates his Due Process Clause and Sixth Amendment rights
because it is based on facts not found by the jury. Here,
however, the district court’s determination did not increase
Ford’s sentence beyond the statutory maximum. 21 U.S.C.
§ 841(b)(1)(A) provides for a sentence of ten years to life for
defendants convicted of distributing more than fifty grams of
methamphetamine or 500 grams of a substance containing
methamphetamine. Ford’s sentence of 325 months in prison was thus
within the prescribed range of penalties for which Ford could be
held responsible based solely on the jury’s finding.
Consequently, there is no Apprendi error. Though Ford made a
Blakely objection at trial, any Booker error is harmless because
the district court stated that it would impose the same sentence
in the event that the Guidelines were declared unconstitutional.
IV. CONCLUSION
For the reasons stated above, we AFFIRM the convictions of
Charles Samson and Victor Wesley Tucker of a continuing criminal
enterprise involving more than 15,000 grams of methamphetamine.
We REVERSE the conviction of Michael Curtis Lewis and Malachi
David Wren for continuing criminal enterprise on the basis of
insufficient evidence. We AFFIRM the convictions of Donnie
Thompson, Michael Norris Martin, Buddy Ford, Leonard Duane
Griffith, Shane Samson, and Jerry Wayne Beason for conspiracy to
manufacture and distribute over fifty grams of methamphetamine or
39
500 grams of a substance or mixture containing methamphetamine.
We REVERSE the enhancement of the sentences of Michael Norris
Martin and Leonard Duane Griffith for leadership roles in the
conspiracy on the basis of insufficient evidence but AFFIRM the
enhancement of the sentence of Buddy Ford for his responsibility
for between five and fifteen kilograms of a substance containing
methamphetamine.
AFFIRMED in part and REVERSED in part. The sentences of
Lewis, Wren, Martin, and Griffith are VACATED and the cause is
REMANDED for their resentencing.
40