United States v. Scroggins

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit April 27, 2007

Charles R. Fulbruge III
Clerk
No. 06-30108

UNITED STATES OF AMERICA

Plaintiff - Appellee

VERSUS

DONALD CRAIG SCROGGINS

Defendant - Appellant

Appeal from the United States District Court
For the Western District of Louisiana

Before DAVIS, DENNIS and PRADO, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Defendant Donald Craig Scroggins (“Scroggins”) appeals his

conviction and sentence for conspiracy to possess with intent to

distribute five (5) kilograms or more of powder cocaine and fifty

(50) grams or more of crack cocaine in violation of 21 U.S.C. §§

841(a)(1) and 846. Finding no error, we AFFIRM the judgment of the

district court in all respects.

I. Facts and Proceedings Below
 This case is before us for the third time. Scroggins was

convicted by a jury of conspiracy to distribute and possession with

intent to distribute five (5) kilograms or more of cocaine

hydrochloride (powder cocaine) and fifty (50) grams or more of

cocaine base (crack cocaine) in violation of 21 U.S.C. §§ 841(a)(1)

and 846. Scroggins filed a timely motion for new trial, pursuant

to Fed. R. Crim. P. 33, asserting that the government intimidated

two defense witnesses, James Thomas (“Thomas”) and Freddie Young

(“Young”), from testifying, and that, inter alia, the “interest of

justice” required that he be granted a new trial. The district

court treated Scroggins’s motion as one based on newly discovered

evidence and governmental interference, and denied the motion.

Scroggins was then sentenced to life imprisonment, five years’

supervised release, and a $100 special assessment. At sentencing,

the district court made a number of findings based almost entirely

on the trial testimony of government witness Earl Buchanan

(“Buchanan”). The court found that (1) Scroggins’s conspiracy

conviction involved more than 1.5 kilograms of crack cocaine; (2)

Scroggins had obstructed justice; and (3) Scroggins was a dealer or

organizer of a drug organization with five or more participants.

This produced an unadjusted base offense level of 38,1 to which the

court added four levels for being a leader or organizer2 and two

1
U.S.S.G. § 2D1.1(c)(1).
2
U.S.S.G. § 3B1.1(a).

2
levels for obstruction of justice,3 for a total adjusted base

offense level of 43.4 Under the Guidelines, this produces a

Guideline sentence of life imprisonment for an individual, such as

Scroggins, in criminal history category I.5

On Scroggins’s timely appeal to this court, we remanded the

case to the district court for further consideration of Scroggins’s

motion for new trial “in the interest of justice.”6 We also

directed the district court to conduct an in camera inspection of

the presentence reports (“PSRs”) for Buchanan and Gregory Byrd

(“Byrd”), two prosecution witnesses, to determine whether they

contained any Brady or Giglio information, and, if so, to determine

whether the failure to produce that information was harmless.7

In his first appeal, Scroggins also argued that Buchanan’s

trial testimony did not bear a “sufficient indicia of reliability”

upon which to base a life imprisonment sentence.8 Scroggins’s

principal contention focused on the district court’s finding (based

3
U.S.S.G. § 3C1.1.
4
Actually, the adjusted base offense level would be 44, but the U.S.S.G. Sentencing Table,
application note 2, provides that “[a]n offense level of more than 43 is to be treated as an offense
level of 43.”
5
U.S.S.G. Sentencing Table.
6
United States v. Scroggins, 379 F.3d 233, 256-57 (5th Cir. 2004) (“Scroggins I”). We
found that the district court’s conclusion that the government did not interfere with Thomas and
Young was not clearly erroneous. Id. at 239.
7
Id. at 264.
8
See U.S.S.G. § 6A1.3(a).

3
on Buchanan’s testimony) that Scroggins was involved in a

conspiracy that dealt in more than 1.5 kilograms of crack cocaine.9

We concluded “that the district court did not sufficiently

scrutinize Buchanan’s inconsistent statements10 and did not provide

a rationale in the record for believing one version over another.”11

As a result, we vacated Scroggins’s sentence as to the quantity of

crack cocaine, and remanded the case for resentencing with respect

to the quantity of crack cocaine.12

Scroggins applied to the Supreme Court for a writ of

certiorari, which the Supreme Court granted. The Court remanded

the case to us so we could consider the sentence in light of United

States v. Booker.13 Consistent with the Supreme Court’s order, we

remanded the case to the district court. In our remand order to

the district court, we explained that:

Resentencing herein shall be pursuant to Justice Breyer’s
Booker opinion, with Scroggins and counsel present and

9
Scroggins also argued that Buchanan’s testimony supporting the obstruction of justice
enhancement was unreliable. We rejected this contention. Scroggins I, 379 F.3d at 265.
10
Buchanan’s versions of the amount of crack cocaine for which Scroggins was
responsible included: (1) trial testimony of at least 1.05 kilograms, but with Buchanan unable to
know the approximate total amount (more than fifty grams from Shirley Preston (“Preston”) and
David Sosa (“Sosa”)); and (2) information given to Drug Enforcement Administration (“DEA”)
Agent William Green of about three kilograms.
11
Id. at 267-68.
12
Id. at 269. Of course, resentencing would not be appropriate if the district court first set
aside Scroggins’s conviction.
13
Scroggins v. United States, 543 U.S. 1112 (2005).

4
 having, inter alia, an opportunity to speak under Fed. R.
Crim. P. 32(4)(A). The district court may, should it
deem it appropriate, reconsider its determinations that
Scroggins was a leader or organizer and/or obstructed
justice, as well as its drug quantity determinations, and
it shall evaluate the ultimate sentencing effect of any
and all such determinations under an advisory, non-
mandatory, guidelines system. We also note in this
connection that in respect to all these three
determinations as made at the original sentencing, the
district court relied largely on the trial testimony of
Buchanan.

We hold that, under the particular circumstances of this
case, the district court may also, in its discretion,
hear and consider evidence as to Scroggins’s role in the
offense under section 3B1.1 of the Guidelines and whether
he obstructed justice under section 3C1.1 of the
Guidelines. The court may also hear evidence bearing on
whether or not - notwithstanding that the Guidelines (and
pertinent Sentencing Commission policy statements) must
be considered and taken into account - a non-guideline
sentence would be more appropriate in light of the other
factors and considerations set out in Justice Breyer’s
Booker opinion.14

Accordingly, we modified our opinion in Scroggins I, vacated

Scroggins’s sentence, and remanded the case to the district court

for further proceedings.15

Approximately 45 days after remand, and without further notice

or hearing, the district court denied Scroggins’s motion for new

trial based on the interest of justice. After receiving notice of

the district court’s ruling, Scroggins filed a motion to disqualify

the district judge, pursuant to 28 U.S.C. §§ 144 and 455, which the

14
United States v. Scroggins, 411 F.3d 572, 577-78 (5th Cir. 2005) (emphasis in original)
(“Scroggins II”).
15
Id. at 578.

5
district court denied. At the same time, Scroggins filed a motion

to reconsider the denial of his new trial motion with a request

that the district court take evidence on the motion, which was also

denied by the district court.

Prior to resentencing, Scroggins filed objections to each of

the enhancements and asserted reasons under 18 U.S.C. § 3553(a) for

a reduced sentence. At resentencing, the district court overruled

Scroggins’s objections to the enhancements for obstruction of

justice and leadership role, but, after hearing the testimony of

witnesses, it reconsidered the amount of drugs and reduced the

amount of crack cocaine involved to just over one kilogram. The

resulting offense level 42, with a criminal history category I,

yielded an advisory Guideline range of 360 months to life.16 The

court sentenced Scroggins to 360 months. Scroggins timely

appealed.

II. Discussion

Scroggins raises several issues on appeal. We address each

issue in turn.

A. Recusal

In his first assignment of error, Scroggins argues that the

district judge erroneously refused to recuse himself pursuant to 28

U.S.C. §§ 144 and 455. We review the denial of a motion to recuse

16
U.S.S.G. Sentencing Table.

6
under an abuse of discretion standard.17

Two affidavits were submitted with the motion for recusal, one

from Scroggins and one from his attorney. Both Scroggins and his

attorney based their assertions of bias largely on a phone call

from the district court, through its law clerk. According to the

affidavits, the law clerk informed Scroggins’s counsel that Judge

Walter, the district court judge, had denied Scroggins’s new trial

motion and that he intended to give Scroggins the same sentence.

The law clerk then inquired as to whether Scroggins was interested

in waiving his appearance at sentencing. According to the

affiants, the court expressed concern over the expense to the

government of transporting Scroggins for resentencing when the same

sentence would issue. Scroggins’s counsel declined to waive

Scroggins’s presence at the sentencing hearing.

Scroggins also alleged that Judge Walter had predetermined his

sentence without hearing any argument as to why the sentence was

“unreasonable” under Booker, without giving Scroggins’s counsel an

opportunity to speak, and without scrutinizing the drug amounts.

In addition, Scroggins complained of the district court’s failure

to hold a hearing on the new trial motion, and its failure to

review the PSRs of Buchanan and Byrd.18

17
United States v. Waskom, 179 F.3d 303, 307 (5th Cir. 1999).
18
Scroggins also alleged that recusal was required because the court imposed an extremely
large fine on his trial counsel “without any of the benefits of due process.”

7
 Two statutes govern recusal of United States district judges

based on the judge’s bias, prejudice, or impartiality.19 “Under

either statute, the alleged bias must be personal, as distinguished

from judicial, in nature.”20 “[A] motion for disqualification

ordinarily may not be predicated on the judge’s rulings in the

instant case . . . .”21 Adverse judicial rulings will support a

claim of bias only if they reveal an opinion based on an

extrajudicial source or if they demonstrate such a high degree of

antagonism as to make fair judgment impossible.22

Scroggins’s recusal arguments rely largely on the district

court’s rulings, or the lack thereof, in his case, and the phone

call from the court’s law clerk. With respect to the phone call,

Scroggins’s argument that the call demonstrated that the district

court “predetermined” his sentence, and thus, erred in refusing to

recuse himself is meritless.23 The facts as stated by Scroggins do

19
28 U.S.C. §§ 144, 455. Under Section 144, a judge must reassign a case when a party
“makes and files a timely and sufficient affidavit that the judge before whom the matter is pending
has a personal bias or prejudice,” either against him or in favor of any adverse party. Section
455(a) requires that “[a]ny justice, judge, or magistrate of the United States shall disqualify
himself in any proceeding in which his impartiality might reasonably be questioned.”
20
Phillips v. Joint Legislative Committee on Performance & Expenditure Review, 637 F.2d
1014, 1020 (5th Cir. 1981) (internal quotations omitted).
21
Id. at 1020.
22
See Liteky v. United States, 510 U.S. 540, 555 (1994).
23
Scroggins cites two Third Circuit cases in support of his argument. United States v.
Townsend, 478 F.2d 1072 (3d Cir. 1973), and United States v. Thompson, 483 F.2d 527 (3d Cir.
1973), are distinguishable from Scroggins’s situation because they involved a district court judge

8
not demonstrate bias and impartiality that are personal - as

distinguished from judicial - in nature. As a result, we cannot

say that the district judge abused his discretion in denying

Scroggins’s recusal motion.

B. Motion for New Trial

Scroggins next argues that the district court erred by failing

to hold a hearing on remand before ruling on the new trial motion,

and, in any event, that a new trial was warranted in the interest

of justice.

1. Failure to Hold a Hearing

In Scroggins I, although the district court declared in its

ruling on the new trial motion that it had “already determined in

open court that the testimony Young and Thomas were to provide is

material,” we found that “it did not make any other reference to

its materiality determination or to findings upon which it based

its conclusion that their testimony was material.”24 In addition,

with respect to Thomas’s testimony at the new trial hearing,25 the

who had a personal bias against Selective Service violators, such that he would sentence all
violators of the Selective Service laws to at least thirty months in jail, despite the fact that a prison
sentence was not mandatory. Scroggins has pointed to no personal bias of the judge against
Scroggins and/or individuals convicted of drug offenses generally. In addition, a defendant is
entitled to voluntarily waive his presence at a sentencing hearing, see Fed. R. Crim. P. 43(c), and,
thus, the fact that the judge asked if Scroggins wanted to waive his presence does not indicate
personal bias or prejudice.
24
Scroggins I, 379 F.3d at 257.
25
Before Scroggins’s initial appeal and before we remanded the case to the district court,
the district court held a hearing on Scroggins’s new trial motion.

9
district court did not allow Scroggins to fully develop the

substance of Thomas’s testimony beyond the governmental

interference issue. Based on this background, we stated in

Scroggins I that, “in considering Scroggins’s new trial motion in

the interest of justice on remand, the district court may need to

hold a further hearing (if timely and properly requested to do so

by either party).”26

On remand, the district court did not issue a scheduling order

or announce its intention to rule on the new trial motion without

any further input from the parties. Scroggins cites no rule that

requires such notice of intent to rule. The district court issued

its ruling denying Scroggins’s motion for new trial 45 days after

we issued our opinion in Scroggins II, and after it had received no

request for a hearing from Scroggins. Also, in his motion to

reconsider the denial of the new trial motion, Scroggins did not

proffer statements from Thomas and Young to support his argument

that a hearing was necessary. Additionally, Scroggins did not

attempt to refute the district court’s conclusion in its ruling on

remand denying Scroggins’s new trial motion that the testimony of

Young and Thomas was not sufficiently credible to warrant a new

trial. The district court did not err in concluding that a hearing

on the new trial motion was not warranted.

2. Denial of Motion for New Trial

26
Id. at 258 (emphasis added).

10
 Following trial, Scroggins moved for a new trial, pursuant to

Fed. R. Crim. P. 33, asserting, inter alia, that the “interest of

justice” required that he be granted a new trial. In his motion,

Scroggins argued that two defense witnesses, Young and Thomas, who,

although subpoenaed by Scroggins, did not appear to testify at

trial, would have provided exculpatory testimony. At the new trial

hearing,27 the witnesses gave testimony which tended to contradict

the testimony of Buchanan, a key government witness.

Under Rule 33 of the Federal Rules of Criminal Procedure, the

district court “may . . . grant a new trial if the interest of

justice so requires,”28 and “[t]he ‘interest of justice’ may be

based on the trial judge’s evaluation of witnesses and weighing of

the evidence.”29 A motion for new trial “is addressed to the

discretion of the court, which should be exercised with caution,

and the power to grant a new trial . . . should be invoked only in

exceptional cases . . . .”30 “Where a court finds that a

miscarriage of justice may have occurred at trial, . . . this is

classified as such an ‘exceptional case’ as to warrant granting a

27
Again, this is the hearing conducted prior to Scroggins’s initial appeal.
28
Fed. R. Crim. P. 33(a).
29
United States v. Wall, 389 F.3d 457, 465-66 (5th Cir. 2004).
30
United States v. Robertson, 110 F.3d 1113, 1120 n. 11 (5th Cir. 1997) (citation
omitted).

11
new trial in the interest of justice.”31 “A miscarriage of justice

warranting a new trial in certain circumstances may occur even when

there has been no specific legal error.”32 We review the denial of

a motion for new trial for abuse of discretion.33

In Scroggins I, we stated that

the district court should grant the new trial only if it
concludes, in the exercise of its discretion, either that
the jury probably would have acquitted Scroggins with the
testimonies of Young or Thomas, rather than simply that
the jury might have acquitted, or that had Young and
Thomas testified the evidence would so heavily
preponderate against the verdict that it would be a
miscarriage of justice to let it stand.34

On remand, the district court denied Scroggins’s new trial

motion. In so ruling, the district court stated that Buchanan

testified at length on cross-examination regarding the facts

surrounding his agreement with the government to offer favorable

testimony at Scroggins’s trial in exchange for a reduced sentence.

In addition, the district court relied on a contemporaneous letter

Buchanan directed to Scroggins, asking Scroggins to plead guilty

and tell the truth.35 The court found that “these letters bolstered

31
Id. (citation omitted).
32
Scroggins I, 379 F.3d at 255.
33
United States v. Rasco, 123 F.3d 222, 228 (5th Cir. 1997).
34
Scroggins I, 379 F.3d at 257 (internal citations omitted) (emphasis in original).
35
Buchanan wrote a letter to Bobbie Young (“Young”), an individual housed at Caddo
Correctional Center. Buchanan testified that he wrote the letter to Young with the purpose that
Young would convey his words to Scroggins. Buchanan stated that in the letter he was telling
Scroggins to tell the truth by pleading guilty and accepting responsibility for what he did.

12
Buchanan’s credibility with the Court.” The court stated that it

“watched Buchanan very closely during the course of his testimony

due to a general distrust of evidence ‘purchased’ by the

government” and found the evidence brought forth at trial

“sufficient to make Buchanan believable.”

The court explained that in previously referring to Thomas’s

and Young’s evidence as “material” or “important,” it was

“assum[ing] those factors for the purpose of the hearing on

governmental misconduct.” The court emphasized that it “had the

opportunity to observe Young and Thomas at the hearing on the

question of government misconduct and found them incredible.” As

a result, the district court stated that “after hearing the

proffered substantive testimony of Young and Thomas . . ., [it]

certainly did not find their testimony to be sufficiently credible

such that the jury probably would have acquitted Scroggins had they

testified during the trial.” The district court also concluded

that “with the additional testimony of Young and Thomas, the

evidence would not preponderate heavily against the verdict, such

that it would be a miscarriage of justice to let the verdict

stand.”

At trial, Buchanan testified that Scroggins was purchasing

drugs from David Sosa (“Sosa”) and Shirley Preston (“Preston”);

Buchanan stated that, by doing this, it would benefit Buchanan because it would confirm the truth
as Buchanan had already stated it and it would benefit Scroggins because it would be possible for
him to receive a Rule 35 in his sentence.

13
Scroggins “financially supplied” the drugs;36 and Buchanan sold the

drugs for Scroggins.

At the new trial hearing, Young, a former paid government

informant, testified that (1) Buchanan told him that Scroggins

never dealt with Sosa, and that Sosa was supplying Buchanan with

drugs; (2) Buchanan told him that he (Buchanan) initially told the

Drug Enforcement Administration (the “DEA”) agents that Scroggins

was not a drug dealer, but “they didn’t want to hear that,” and the

only way Buchanan would get “some help” in reducing his sentence

would be to “cooperate with them to the fullest;” (3) Buchanan got

mad at Scroggins for not hiring him (Buchanan) a paid lawyer; (4)

Buchanan told him Scroggins never supplied him (Buchanan) with

drugs or money to buy drugs; and (5) from his (Young’s) knowledge

and information gathered on the street for the DEA, Scroggins was

not a drug dealer.

Thomas, a former paid confidential informant who was asked by

DEA Agent Russell Sarpy to attempt to buy drugs from various

members of the Scroggins family (including Buchanan), testified at

the new trial hearing that: (1) he told Sarpy that Scroggins “don’t

sell drugs,” but the agents wanted him to attempt to purchase drugs

from Scroggins anyway; and (2) when he asked Scroggins for drugs,

Scroggins said, “You know I don’t do that.”

After conducting a careful review of the record in this case,

36
Buchanan testified that this meant that Scroggins was purchasing the drugs.

14
we are satisfied that the district court did not err in finding

that the testimony of Young and Thomas would not have likely

undermined the jury’s verdict. Scroggins produced considerable

testimony during trial attacking Buchanan’s credibility.37 The

defense also presented evidence that Buchanan bought his drugs from

Sosa and Ashley, and that Scroggins never supplied Buchanan with

drugs.38 In addition, contrary to the testimony of Young and

Thomas, the government presented considerable evidence of

Scroggins’s drug dealing such that the jury probably would not have

acquitted Scroggins had Young or Thomas testified. Also, the

district court did not err in concluding that it was not a

37
In addition to Buchanan’s testimony on cross-examination regarding the facts
surrounding his agreement with the government, defense witness Russell Jones (“Jones”), an
inmate who worked in the prison law library, testified that Buchanan told him that his people were
not “providing the legal services that he felt like he deserved,” and “all of his people would go
down with him and he didn’t mind fabricating some stuff to do what he had to do.” Jones also
stated that Buchanan indicated to him that he knew if he said what they wanted him to say, he
would “come home.” Moreover, Jones testified that Scroggins told him that he was not a dope
dealer and that “Earl [Buchanan] lied on” him.
38
Bobbie Kirkendoll (“Kirkendoll”) testified that Buchanan told him that Ashley supplied
him (Buchanan) with drugs and Buchanan never mentioned getting drugs from anywhere else.
According to Kirkendoll, Buchanan also stated that he was also buying drugs from “a Mexican
guy that he knew.” (Sosa was allegedly a Mexican.) In addition, Kirkendoll stated that it was
“impossible” that Buchanan would have been supplied with drugs in such large amounts from
Scroggins because Scroggins was a crack addict. Richard Scroggins (“Richard”) testified that he
did not know if Scroggins knew anything about Sosa, but Buchanan did, and Scroggins was
trying to help Agent Green catch Sosa to help Buchanan “[b]y getting information from
[Buchanan] to give to Mr. Green to catch Sosa, because he got the phone number [for Sosa] from
[Buchanan].” Agent Green testified that Scroggins and other people told him that Buchanan had
drug connections and had done drug business with Sosa. William Bryant, who was called by co-
defendant James Bryant, testified that “he’s never known [Scroggins] to sell drugs,” and
Scroggins is a drug addict and “it’s very difficult for an addict to be productive selling drugs or
make money selling drugs . . . .”

15
miscarriage of justice to let the verdict stand without the

testimony of these two witnesses.39

In addition to Buchanan’s testimony, Agent William Green, a

Special Agent with the DEA, testified that Scroggins told him that

he was a cocaine dealer, had been getting cocaine from Sosa, and

that “he had set up or could set up David Sosa to bring in . . .

cocaine to the Shreveport area.”40 At a later meeting, Scroggins

admitted to Agent Green that “30 days prior to him coming to our

office he had already set up the 10 kilogram cocaine deal with Mr.

Sosa,” and this “was going to be his last narcotics deal and that

was going to set his retirement.”

Gregory Byrd (“Byrd”), a government witness, testified at

trial that, in 1998, Scroggins bought drugs from him on credit, and

toward the end of 1998 to the first part of 1999, Byrd began buying

drugs from Scroggins. Byrd testified that he and Scroggins “did

business” for about a year, but they stopped doing business in 2000

because that was when Scroggins started using Buchanan to sell his

drugs, and Byrd did not “want to mess around with [Buchanan].”

Byrd stated that on occasions when he called Scroggins and

Scroggins attempted to send him to Buchanan, he did not go to

39
See Scroggins I, 379 F.3d at 257 (internal citations omitted) (emphasis in original).
40
Scroggins, who was already under investigation at the time, met with Agent Green
multiple times and discussed his previous drug trafficking experience and offered to set up the
controlled buy with Sosa, allegedly in order to benefit Buchanan, a man informally adopted by
Scroggins, who was arrested for drug trafficking.

16
Buchanan and dealt directly with Scroggins.

Vincent Crawford (“Crawford”) testified that he did drug

business with Scroggins between 1998 and 2001, and he bought drugs

directly from Scroggins about seven or eight times.41 Crawford

stated that sometimes Scroggins would direct him to someone else

for the transaction and sometimes that person would be Buchanan.

In sum, we conclude that the district court did not abuse its

discretion in denying Scroggins’s motion for new trial.

C. Burden of Proof for Relevant Conduct

Scroggins next argues that the relevant conduct in his case

should be determined under a standard greater than a preponderance

of the evidence because the relevant conduct is the “tail that wags

the dog” of the substantive offense.42 We have repeatedly held that

a district court may find the facts relevant to a defendant’s

Guidelines calculation by a preponderance of the evidence, and

thus, we reject Scroggins’s argument.43

D. Leadership Enhancement

On remand, Scroggins argued that he did not qualify for a

41
Crawford also testified that around the summer of 1999, Scroggins contacted him on
several occasions because he knew that Crawford was a drug dealer and told Crawford that he
bought some drugs from out of town, and asked Crawford what he was looking for, and how
much he usually scored. Scroggins gave Crawford a price range and they “went on from there.”
42
See United States v. Harper, 448 F.3d 732, 734 n.1 (5th Cir. 2006) (noting in a footnote
“that the district court did not reason and Harper does not contend that the magnitude of the
sentencing enhancement amounted to a ‘tail that wags the dog of the substantive offense’ thereby
requiring the use of a more stringent standard of proof” (citations omitted)).
43
See, e.g., United States v. Johnson, 445 F.3d 793, 798 (5th Cir. 2006).

17
leadership enhancement under U.S.S.G. § 3B1.1, and he submitted

additional information on this issue. However, the district court

found that Scroggins was a leader and deserving of the four-level

increase. We review the district court’s finding for clear error.44

A defendant qualifies for a leadership adjustment if he is the

organizer or leader of a criminal activity that involved five or

more participants.45 Scroggins’s PSR contained two bases that

support a leadership enhancement: (1) an investigation that

revealed that Scroggins was the head of the “Lakeside Kings” street

gang, a Shreveport gang consisting of about twenty-seven members;

and (2) the identification of Gregory Byrd, Vincent Crawford, John

Bryant, Earl Buchanan and Vincent Tate as members of an illegal

drug distribution organization that was led by Donald Scroggins

from at least 1990 until March of 2001.

In his sentencing memorandum, Scroggins attached the

declaration of Corporal Ted Smith, a Shreveport police officer in

charge of gang intelligence and responsible for maintaining

intelligence on street gangs and street gang activity in

Shreveport. Corporal Smith stated in his declaration that, to his

knowledge, Scroggins has never been a member of the Lakeside Kings,

much less the head of that gang, and that, given his

responsibilities at the Shreveport Police Department, he would be

44
United States v. Okoli, 20 F.3d 615, 616 (5th Cir. 1994).
45
U.S.S.G. § 3B1.1(a).

18
aware of whether or not Scroggins was a member of that gang. The

PSR did not indicate the source or provide details of the

investigation revealing Scroggins’s link to the Lakeside Kings, and

the government did not introduce any testimony at trial or the

resentencing hearing regarding the gang. As a result, the evidence

was insufficient to support the district court’s finding that

Scroggins was the head of the Lakeside Kings.

We find, however, that any error of the district court in

relying on Scroggins’s association with the Lakeside Kings46 is

harmless because the information contained in the PSR and the

testimony at trial was adequate for the district court to find by

a preponderance of the evidence that Scroggins was a leader in a

drug conspiracy consisting of five or more individuals, including

Buchanan, Bryant, Byrd, Crawford, and Tate. Accordingly, we

conclude that the district court did not clearly err in imposing

the four-level leadership enhancement.

E. Reasonableness of Sentence

Scroggins argues that, given the record from the district

court at resentencing, it would be almost impossible for us to

conduct a meaningful review for reasonableness, and a consideration

of the factors set forth in 18 U.S.C. § 3553(a) reveals that a 360

month sentence is not reasonable.

46
At the resentencing hearing, the district court made no mention of the Lakeside Kings,
only stating that it “already found the five,” and those are the ones in the PSR.

19
 Under Booker, we review sentences for reasonableness. A

sentence within a properly calculated Guideline range “is afforded

a rebuttable presumption of reasonableness.”47 When a district

court sentences a defendant within a properly calculated Guideline

sentencing range, we will infer that the district judge has

considered “all the factors for a fair sentence set forth in the

Guidelines”48 In evaluating whether a sentencing Guideline range

is properly calculated, we review findings of fact for clear error

and the interpretation and application of the sentencing Guidelines

to those facts de novo.49

In this case, the district court sentenced Scroggins within a

properly calculated Guideline range, and in fact, it sentenced him

to the shortest sentence in that range, 360 months. We are

satisfied that the district court provided adequate explanation in

imposing this sentence50 and considered the § 3553(a) factors in

47
United States v. Smith, 440 F.3d 704, 706 (5th Cir. 2006). Scroggins maintains that a
properly calculated Guideline range should not be afforded a rebuttable presumption of
reasonableness. While Scroggins acknowledges that he is bound by this presumption on panel
review, he preserves this argument for en banc or Supreme Court review. The Supreme Court has
recently granted certiorari to decide the issue of whether a within-Guidelines sentence is, in fact,
presumptively reasonable. See United States v. Rita, 177 Fed. Appx. 357 (4th Cir.) (unpublished),
cert. granted, 127 S. Ct. 551 (Nov. 3, 2006).
48
United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005).
49
Smith, 440 F.3d at 705.
50
See Mares, 402 F.3d at 519 (When a judge exercises his “discretion to impose a sentence
within the Guideline range and states for the record that she is doing so, little explanation is
required.”).

20
sentencing Scroggins.51 In addition, after reviewing the briefs and

the record and finding no persuasive reason to disturb the district

court’s sentence, we are convinced that Scroggins’s sentence is

reasonable under Booker.

F. Review of Presentence Reports

Scroggins asks us to conduct an independent review of the PSRs

of Buchanan and Byrd to determine whether they contain any material

Brady52 or Giglio53 information. Prior to trial, Scroggins requested

that the government produce the PSRs for Buchanan and Byrd that had

been produced in connection with their drug prosecutions. The

district court denied his request without indicating whether it had

conducted an in camera review of the PSRs and without making the

PSRs a part of the record. In remanding the case, we instructed

the district court to conduct an in camera inspection and make

appropriate findings as to whether the PSRs contained any material

Brady or Giglio information. On remand, the district court

conducted an in camera inspection and found no material Brady or

Giglio information.

Our own independent review confirms the district court’s

conclusion and, thus, we find no error in the district court’s

disposition of this issue.

51
See id. at 519.
52
Brady v. Maryland, 373 U.S. 83 (1963).
53
Giglio v. United States, 405 U.S. 150 (1972).

21
 III. Conclusion

For the foregoing reasons, Scroggins’s conviction and sentence

are affirmed.

AFFIRMED.

22