U.S. v. Kelley

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 91-4879
_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DANIEL MICHAEL KELLEY,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the
Eastern District of Texas

_________________________________________________________________
(January 20, 1993)

Before JOLLY and DeMOSS, Circuit Judges, and SCHWARTZ*, District
Judge.

E. GRADY JOLLY, Circuit Judge:

Daniel Michael Kelley was convicted for possession of cocaine

with intent to distribute, using and carrying a firearm during and

in relation to the drug trafficking crime, and possession of a

firearm as a convicted felon. He appeals, contending that the

district court erred in denying his motion to suppress. He also

complains of prosecutorial misconduct, errors in evidentiary

*
District Judge of the Eastern District of Louisiana, sitting
by designation.
rulings, and misapplication of the Sentencing Guidelines. Finding

no reversible error, we AFFIRM.

I

On November 9, 1990, Kelley and Sondra Andrews drove Andrews's

car from Butler, Alabama, to Houston, Texas. They spent the night

at a motel in Houston, and left the following day, headed east on

Interstate 10 toward Beaumont. As the vehicle approached Beaumont,

two Beaumont police officers, Froman and LaChance, observed that

Andrews was seated near the middle of the front seat. They began

to follow the vehicle, and observed that Kelley was not wearing a

seatbelt, because the buckle was hanging down over his left

shoulder. The officers decided to stop the vehicle for the

seatbelt violation.

Andrews and Kelley both testified that Kelley got out of the

car and walked back to the police car, but the officers testified

that they approached Andrews's vehicle while Kelley and Andrews

were both still inside the vehicle. In any event, Kelley presented

his driver's license to the officers at their request. Froman

asked Kelley to step to the rear of the vehicle, while LaChance

questioned Andrews. When asked about the reason for their trip to

Houston, Andrews and Kelley gave inconsistent answers. Based on

that fact, as well as the apparent nervousness of both Kelley and

Andrews, the officers decided to ask for consent to search the

vehicle. Andrews signed a consent form for the search.

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 During the search, Officer Froman found a loaded .38 caliber

revolver in the glove compartment. On the right floorboard was a

blue canvas bag containing approximately $4,000 in currency. In

the trunk, he found a loaded .45 caliber pistol, and a soft body

armor ballistics vest. While the officers were questioning Andrews

about these items, Kelley fled on foot into the wooded area across

the interstate. Froman unsuccessfully pursued him, and Kelley

remained free until apprehended in Alabama approximately six months

later.

After Kelley fled, Andrews was arrested for unlawful carrying

of weapons, and was placed in the back seat of the police car to

await the arrival of a female officer to perform a body frisk.

Later, after she had been taken to jail, Andrews told the officers

that, immediately before the stop, Kelley had handed her a bag of

cocaine and told her to hide it in her pants, and she had complied.

When she was placed in the back seat of the patrol car, she took

the cocaine out of her pants and hid it under the front passenger

seat. A search of the police car later that evening resulted in

the discovery of approximately ten ounces of cocaine underneath the

front seat behind which Andrews had been sitting.

II

Kelley was charged with possession of cocaine with intent to

distribute, in violation of 21 U.S.C. § 841(a)(1); using and

carrying a firearm during and in relation to a drug trafficking

crime, in violation of 18 U.S.C. § 924(c); and possession of a

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firearm as a convicted felon, in violation of 18 U.S.C. § 922(g).

The district court denied his motion to suppress the evidence

seized in the search of Andrews's automobile.

Andrews entered into a plea agreement and testified against

Kelley at the suppression hearing and at trial. The jury found

Kelley guilty on all three counts. He was sentenced to 240 months

on the cocaine possession count, to run concurrently with a

sentence of 327 months on the felon-in-possession count. He was

also sentenced to a consecutive term of 60 months imprisonment on

the firearm count. He filed a timely notice of appeal.

III

Kelley contends that the district court erred in denying his

motion to suppress. He further contends that the district court

erred in admitting evidence of his flight from the scene of the

search, in ruling that an expunged conviction under the Youthful

Offender Act was admissible, in overruling his objection to the

prosecutor's closing argument, and in applying the Sentencing

Guidelines.

A

Kelley contends that the evidence seized in the search of the

car should have been suppressed, because the valid stop for

seatbelt violations became an illegal detention when the police

officers conducted an investigation that was not reasonably related

to the justification for the stop. He further contends that

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Andrews's consent was involuntary, because it was the product of

the allegedly illegal detention.1

(1)

"The proponent of a motion to suppress has the burden of

proving, by a preponderance of evidence, that the evidence in

question was obtained in violation of his Fourth Amendment rights."

United States v. Smith, 978 F.2d 171, 176 (5th Cir. 1992). We

review the district court's findings of underlying facts for clear

error; questions of law are reviewed de novo. Id. In evaluating

the legality of investigatory stops, we consider (1) whether the

officer's action was justified at its inception, and (2) whether it

was reasonably related in scope to the circumstances which

justified the interference in the first place. Terry v. Ohio, 392

U.S. 1, 19-20 (1968).

Kelley acknowledges that United States v. Causey, 834 F.2d

1179 (5th Cir. 1987) (en banc), forecloses the contention, which he

made to the district court, that the stop for seatbelt violations

was a mere pretext to allow the officers to search for drugs or

weapons. Accordingly, he now concedes that the stop was justified

1
Although it argued to the district court that Kelley lacked
standing to challenge the legality of the search, the government
now concedes Kelley's standing. Andrews testified that Kelly was
driving her car with her permission. Moreover, he had a legitimate
expectation of privacy with respect to the contents of his
suitcase, which was in the trunk of Andrews' car. Therefore, we
agree that he has standing to contest the legality of the search.
See Rakas v. Illinois, 439 U.S. 128, 142 n.11, 148 (1978); United
States v. Martinez, 808 F.2d 1050, 1056 (5th Cir.), cert. denied,
481 U.S. 1032 (1987).

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at its inception. However, he contends that the investigation

conducted by the officers was not reasonably related in scope to

the purpose of the stop. According to Kelley, once the officers

obtained his driver's license, they should have issued a citation

or a warning and refrained from any further questioning or

investigation.2 He urges us to adopt the rationale of two cases

from the Tenth Circuit, which has expressly rejected Causey.3

In United States v. Guzman, 864 F.2d 1512 (10th Cir. 1988), an

officer stopped the defendant and his wife for seatbelt violations.

While writing a warning for the seatbelt violation, the officer

asked the defendant "whether his wife was employed, where he was

headed, where he worked, when he got married, and if they were

carrying any large sums of money." Id. at 1514. After completing

the warning and handing it to the defendant, but without advising

the defendant that he was free to leave, the officer asked the

defendant if they were carrying weapons or contraband. The

2
The officers did not issue traffic citations for the seatbelt
violations.
3
In United States v. Smith, 799 F.2d 704 (11th Cir. 1986), the
Eleventh Circuit held that "in determining when an investigatory
stop is unreasonably pretextual, the proper inquiry ... is not
whether the officer could validly have made the stop but whether
under the same circumstances a reasonable officer would have made
the stop in the absence of the invalid purpose." Id. at 709. In
Causey, our en banc court rejected the Smith text, holding that,
"so long as police do no more than they are objectively authorized
and legally permitted to do, their motives in doing so are
irrelevant and hence not subject to inquiry." Causey, 834 F.2d at
1184. In United States v. Guzman, 864 F.2d 1512 (10th Cir. 1988),
the Tenth Circuit adopted the Eleventh Circuit's test, rejecting
Causey. Guzman, 864 F.2d at 1515-17.

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defendant replied that they were not hiding anything and that the

officer was free to look. Id. The defendant signed a consent to

search form. During the search, the officer found five kilograms

of cocaine and $45,000 cash. Id.

The Tenth Circuit held that the seizure was unreasonable,

stating:

An officer conducting a routine traffic stop
may request a driver's license and vehicle
registration, run a computer check, and issue a
citation. When the driver has produced a valid
license and proof that he is entitled to operate
the car, he must be allowed to proceed on his way,
without being subject to further delay by police
for additional questioning. In order to justify a
temporary detention for questioning, the officer
must also have reasonable suspicion of illegal
transactions in drugs or of any other serious
crime.

Id. at 1519 (citations and internal quotations omitted). The

court, however, remanded the case to the district court for

findings of fact on the issue of consent. Id. at 1520.

In United States v. Walker, 933 F.2d 812 (10th Cir.), reh'g

denied, 941 F.2d 1086 (10th Cir. 1991), cert. denied, ___ U.S. ___,

112 S. Ct. 1168 (1992), the defendant was stopped for speeding.

After confirming that the vehicle was not stolen, the officer

obtained the defendant's driver's license and vehicle registration.

Id. at 813-14. Upon discovering that the vehicle was registered in

a different name, the officer questioned the defendant and received

satisfactory information that he was a permissive operator. Id. at

814. The defendant appeared to be nervous, so the officer asked

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whether he was carrying any weapons, open containers of alcohol,

drugs or drug paraphernalia. Id. The defendant replied that he

was not, but stated that he had $1600 in the glove compartment and

$150 in his pocket. Id. The officer then obtained the defendant's

consent to search the vehicle, and discovered 86 kilograms of

cocaine. Id.

The Tenth Circuit held that the initial stop was valid, but

that the continued detention and questioning unrelated to the

traffic violation were unreasonable. Id. at 816. In its opinion

denying the government's motion for rehearing, the court stated:

We think that this type of questioning--about
matters unrelated to the reason for the stop--would
naturally engender fear and resentment in otherwise
law-abiding citizens who expect to be detained
briefly for the purpose of receiving a traffic
citation.

941 F.2d at 1088. Relying on Guzman, the court remanded the case

to the district court for findings on the issue of the

voluntariness of the defendant's consent. 933 F.2d at 817-18.4

Kelley maintains that the officers' questioning of him and

Andrews concerning the purpose for their trip to and from Houston,

like the questioning involved in Guzman and Walker, unreasonably

exceeded the scope of investigation necessary to dispose of the

seatbelt violations.

4
On remand, the district court found that the defendant's
consent was not voluntary. United States v. Walker, ___ F. Supp.
___, 1992 WL 356699 (D. Utah Aug. 17, 1992).

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 (2)

The following is a summary of the evidence at the suppression

hearing relevant to the legality of the detention. Officer Froman

testified that on November 10, 1991, he and his partner, Officer

LaChance, were operating their police vehicle on Interstate 10 in

Beaumont, Texas. They observed a red Plymouth occupied by two

persons, traveling in an easterly direction on Interstate 10, which

links Houston, to the west, and Beaumont, to the east. The female

passenger was sitting in the middle of the front seat, almost in

the male driver's lap. As they began to follow the vehicle, Froman

observed that the driver was not wearing a seatbelt because the

buckle was visible from the rear, hanging over the driver's left

shoulder. They stopped the vehicle because neither occupant was

wearing seatbelts, as required by state law.

Froman testified that he approached the driver's side and

obtained Kelley's driver's license, and then asked Kelley to exit

and step to the rear of the vehicle. Froman stated that, while

walking back to the rear of the vehicle, he observed that Kelley

appeared to be nervous. According to Froman, Kelley's hands were

shaking and his voice quavered; he was fidgeting and couldn't stand

still. Froman testified that Kelley told him that he and Andrews

had been to Houston for a couple of days, visiting friends. Froman

then spoke to Andrews, who stated that she had no idea why they had

been in Houston, but that they had been there since the previous

day and had spent the night in a motel. Froman testified that

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Andrews was even more nervous than Kelley. Based on the

conflicting statements, nervousness, and the fact that Houston is

a "major source city," Froman asked Andrews if they were

transporting any narcotics or weapons. She replied that they were

not. He then asked her for permission to search the vehicle, and

she consented.

Officer LaChance testified that he spoke to Andrews while she

was seated in the vehicle. He observed that both Kelley and

Andrews were nervous. After obtaining Andrews's driver's license

and learning that she was the owner of the vehicle, LaChance asked

her why she was not wearing her seatbelt. He could not remember

her answer. He then asked her where they had been, and she stated

that they were coming from Houston. He asked her what they were

doing in Houston, and she replied, "I don't know, I just came for

the ride." LaChance testified that he considered that response

rather odd, because passengers usually know where they are going

and why. According to LaChance, his questioning of Andrews was

just "normal conversation," but when he noticed that she was

nervous, he wanted to find out why. LaChance testified that they

requested permission to search the vehicle because both Kelley and

Andrews appeared to be nervous, and because of Andrews's

inconsistent answers to his questions.

Andrews testified that she and Kelley were not wearing

seatbelts at the time of the stop. According to Andrews, Kelley

got out of the car and walked back to the patrol car. One of the

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officers talked to Kelley and the other one talked to her. He

asked where they were going and what they were doing. Although she

knew that they had gone to Houston and gotten drugs, she did not

tell the police officer.

Kelley also testified that he approached the police officers'

vehicle immediately after the stop. According to Kelley, the

officers did not immediately ask for his driver's license, but

instead told him to put his hands on the car, and searched him.

Kelley testified that they asked him a number of questions, but

that the questions were asked so rapidly and in such an angry

manner that he did not have time to respond to any of them. Kelley

further testified that the officers searched the vehicle prior to

obtaining Andrews's consent.

The only evidence in the record about the length of the

detention is that approximately five minutes elapsed between the

time the vehicle was stopped and the time Andrews consented to the

search. As the Tenth Circuit held in Guzman, the officers were

entitled to request a driver's license and vehicle registration,

run a computer check, and issue a citation. We also think that,

under the circumstances of this stop, they were entitled to engage

in conversations with Kelley and Andrews in order to determine

whether, for example, Kelley was operating Andrews's vehicle with

her permission, and whether Andrews was being held against her

will. The officers did not issue warnings or citations for the

seatbelt violations, and there is no evidence in the record

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regarding the amount of time that it would have taken to do so.

See Walker, 933 F.2d at 816 n.2 (noting that the court's

determination that the defendant was unlawfully detained might have

been different if the questioning had not delayed the stop beyond

the time necessary for issuance of a citation).

We do not disagree with the Tenth Circuit that, under

appropriate circumstances, extensive questioning about matters

wholly unrelated to the purpose of a routine traffic stop may

violate the Fourth Amendment. However, it is unnecessary for us to

determine whether the questioning that took place here constituted

an unreasonable detention, because, even if it did, we hold,

consistent with all other authorities, that Andrews's valid

voluntary consent to the search cured any Fourth Amendment

violation that may have occurred. We now turn to the issue of

consent.

(3)

As the Tenth Circuit recognized in Guzman and Walker,

voluntary consent can validate a search even when the consent to

search is preceded by a Fourth Amendment violation. Guzman, 864

F.2d at 1520-21; Walker, 933 F.2d at 817-18. Our court also has

long recognized this principle. See, e.g., United States v.

Ballard, 573 F.2d 913, 916 (5th Cir. 1978) (holding that consent

can, in proper circumstances, validate a search following an

illegal arrest).

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 "To be valid, consent to search must be free and voluntary."

United States v. Olivier-Becerril, 861 F.2d 424, 425 (5th Cir.

1988). The government has the burden of proving, by a

preponderance of the evidence, that the consent was voluntary.

United States v. Yeagin, 927 F.2d 798, 800 (5th Cir. 1991). Where

consent is preceded by a Fourth Amendment violation, the government

has a heavier burden of proving consent. United States v.

Ruigomez, 702 F.2d 61, 65 (5th Cir. 1983). The voluntariness of

consent is "a question of fact to be determined from the totality

of all the circumstances." Schneckloth v. Bustamonte, 412 U.S.

218, 227 (1973). We will not reverse the district court's finding

that consent was voluntary unless it is clearly erroneous.

Olivier-Becerril, 861 F.2d at 425-26. "Where the judge bases a

finding of consent on the oral testimony at a suppression hearing,

the clearly erroneous standard is particularly strong since the

judge had the opportunity to observe the demeanor of the

witnesses." United States v. Sutton, 850 F.2d 1083, 1086 (5th Cir.

1988).

In evaluating the voluntariness of consent, we have considered

six factors:

(1) the voluntariness of the defendant's
custodial status; (2) the presence of coercive
police procedures; (3) the extent and level of the
defendant's cooperation with the police; (4) the
defendant's awareness of his right to refuse to
consent; (5) the defendant's education and
intelligence; and (6) the defendant's belief that
no incriminating evidence will be found.

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Olivier-Becerril, 861 F.2d at 426 (citations omitted). All six

factors are relevant, but no single one is dispositive or

controlling. Id.

This case presents a somewhat unusual scenario, because the

individual who consented to the search, Andrews, entered into a

plea bargain with the government and testified in this proceeding

that her consent was voluntary. Therefore, our focus in applying

the factors relevant to voluntariness is not on the defendant,

Kelley, who is challenging the voluntariness of Andrews's consent,

but on Andrews. A similar situation was involved in United States

v. Ruigomez. There, the defendant, Ruigomez, was seized while he

was in a car with Valderrama. Our court held that Valderrama, who

had joint control over the automobile, voluntarily consented to the

search, and that his consent precluded Ruigomez's objection to the

propriety of the search. 702 F.2d at 65-66.5

Andrews, who owned the car in which she and Kelley were

traveling at the time of the stop and search, testified that she

read the consent form before freely and voluntarily signing it.

She further testified that she was not coerced or threatened. The

consent form signed by Andrews informed her of her right to refuse

5
As we noted in Ruigomez, other defendants have also been in
Kelley's position and have had to suffer the consequences of their
companions' consent. See United States v. Baldwin, 644 F.2d 381
(5th Cir. 1981) (defendant's wife consented to search of her car
after defendant refused to consent); United States v. Hall, 587
F.2d 177 (5th Cir.) (defendant's wife consented to search of his
house following his arrest), cert. denied, 441 U.S. 961 (1969).

-14-
permission to search. Officer Froman testified that he explained

the consent to search form to Andrews, allowed her to read it, and

asked her if she had any questions. She replied that she did not,

and signed the form. Based on this evidence, the district court

found:

The court now finds, pursuant to the motion to
reconsider, by a preponderance of the evidence,
based upon the testimony of Officer Froman and co-
defendant Andrews, that her consent to search was
given freely, voluntarily, knowingly, and without
coercion. This consent, this Court believes,
validated the search of the car owned by co-
defendant Andrews, who is not contesting the
voluntariness of consent, or the validity of the
search.

Government's Exhibit 1 at [the suppression
hearing] is the consent form, and in that form it
explains to Ms. Andrews, who signed the form, that
she had a right not to consent, and could refuse
consent. The testimony at the hearing was that she
read the form, had no questions about the form,
understood the form, and voluntarily signed the
form.

These findings are not clearly erroneous. Although Andrews

was not being detained voluntarily at the time she consented to the

search, the fact that she and Kelley were under detention does not

preclude a finding of voluntariness. See Ruigomez, 702 F.2d at 65-

66. There is no evidence that the police engaged in any coercive

activity.6 Andrews was cooperative, and was aware of her right to

6
Andrews and Froman both testified that the vehicle was
searched after Andrews signed the consent form. Kelley testified
that the police searched the car before obtaining Andrews' consent.
The resolution of this contradictory testimony was a credibility
choice for the district court--one that we will not disturb.

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refuse to consent. There is no evidence that she lacked the

ability to understand her rights. It is unclear whether Andrews

believed that incriminating evidence would be found during the

search. Apparently she was aware that Kelley had guns in the car,

and she had hidden the cocaine in her pants. Perhaps she believed

that the search would reveal only evidence that would incriminate

Kelley, and not incriminate her. In any event, we find that the

factors, considered as a whole, support the district court's

finding that Andrews voluntarily consented to the search.

Kelley urges us to apply the three-factor test for evaluating

the validity of consent following an illegal detention announced in

United States v. Berry, 670 F.2d 583 (5th Cir. Unit B 1982) (en

banc). There, the court held that the factors to be considered

include (1) the temporal proximity of an illegal arrest and

consent, (2) intervening circumstances, and (3) the purpose and

flagrancy of the official misconduct. Id. at 605 (citing Brown v.

Illinois, 422 U.S. 590, 601, 603-04 (1975)). In Guzman and Walker,

the Tenth Circuit also held that the Brown factors should be

applied in determining whether the consents in those cases were

voluntary. Guzman, 864 F.2d at 1520-21; Walker, 933 F.2d at 817-

18.

Even if we assumed that the detention here was illegal, and

apply the Brown factors, we would nevertheless affirm the district

court's finding that Andrews's consent was voluntary. It is true,

as Kelley correctly asserts, that no significant period of time

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elapsed between the allegedly illegal detention and Andrews's

consent. That factor alone, however, is not dispositive. Kelley

maintains that Andrews's inability to consult with an attorney or

to reflect on her decision to give consent negates the presence of

intervening circumstances. In United States v. Fike, 449 F.2d 191

(5th Cir. 1971), however, our court held that advising a defendant

of his right to refuse to permit a search was a sufficient

intervening occurrence to remove the influence of a prior Fourth

Amendment violation. Similarly, in United States v. Ballard, 573

F.2d 913 (5th Cir. 1978), our court relied on two factors--the

absence of any coercive tactics and the fact that the defendant was

informed of the right to refuse to permit the search--in holding

that consent was voluntary following a Fourth Amendment violation.

There is no evidence that Officer Froman and Officer LaChance

engaged in any coercive police tactics. Moreover, Andrews was

informed of her right to refuse consent. Accordingly, under our

precedents, these factors constitute sufficient intervening

circumstances to purge the taint of illegality from any

unreasonable detention.

The district court's finding that Andrews voluntarily

consented to the search is not clearly erroneous. Accordingly,

Kelley "is precluded from complaining about the search of the

automobile." See Ruigomez, 702 F.2d at 66.

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 B

After the weapons, cash, and body armor were discovered during

the search of Andrews's car, Kelley fled from the scene and was not

apprehended until six months later. Kelley filed a motion in

limine, seeking to exclude evidence of his flight from the scene

based upon Fed. R. Evid. 403, maintaining that the "slight"

probative value of such evidence was substantially outweighed by

the danger of unfair prejudice. The district court denied the

motion, as well as his requested instruction to the jury to

disregard such evidence.

Kelley contends that, because he was a convicted felon,

evidence of his flight following the discovery of the weapons was

unduly prejudicial, because even an innocent man with a prior

felony conviction could be motivated to flee out of a fear of

prosecution. We reject that contention. Our court has long held

that "evidence of an accused's flight is generally admissible as

tending to establish his guilt." United States v. Williams, 775

F.2d 1295, 1300 (5th Cir. 1985), cert. denied, 475 U.S. 1089

(1986). The jury was properly instructed on the law concerning the

evidence of flight, and we find no reversible error.

C

Outside the presence of the jury, and pursuant to Fed. R.

Evid. 404(b), the government offered evidence of Kelley's prior

convictions for the purpose of establishing the intent element of

the felony possession charge. Over Kelley's objection that the

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government had failed to give notice of its intention to use such

evidence on the issue of intent, the district court ruled that

Kelley's 1979 federal conviction on drug charges was admissible.

The district court denied Kelley's counsel's request to brief the

issue. To avoid the introduction of evidence of that drug

conviction, Kelley stipulated that, in the event the possession

element was established, intent to distribute existed. See United

States v. Yeagin, 927 F.2d 798 (5th Cir. 1991) (reversing

conviction because of prejudicial effect of evidence of nine prior

felony convictions, where government refused to accept defendant's

offer to stipulate intent to distribute). Pursuant to the

stipulation, evidence of the conviction was not admitted.

Kelley later discovered, after the trial, that the 1979

conviction was under the Youthful Offender Act, and now contends

that the conviction was automatically expunged in 1985. He

therefore asserts that the ruling that the conviction was

admissible constitutes reversible error.

Under to Fed. R. Evid. 404(b), "[e]vidence of other crimes,

wrongs, or acts, is not admissible to prove the character of a

person in order to show action in conformity therewith." Such

evidence "may, however, be admissible for other purposes, such as

proof of motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident." Id. Although for

the purposes of this discussion, we accept Kelley's assertion that

the 1979 conviction was automatically expunged, we nevertheless

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hold that the district court's ruling was not reversible error.

Evidence admissible under Rule 404(b) is not limited to

convictions, but also includes other "wrongs" or "acts."

Therefore, the acts underlying Kelley's 1979 conviction were

admissible for the purpose of proving intent to distribute the

cocaine, even if the conviction itself was not.

D

In his closing argument, Kelley's attorney attacked Andrews's

credibility, focusing on her prior, sworn, inconsistent statements.

During the government's rebuttal in closing argument, the

prosecutor stated that the evidence introduced at trial would have

been the same whether or not Andrews had made a deal with the

government:

The truth is, we don't need Sondra Andrews.
Sondra Andrews could be sitting right there as a
Defendant and we would still be trying this case,
just like this. The same evidence would have come
in. You would have the stop out there, you would
have found these guns, you would have found this
body armor.

This is not Sondra Andrews' body armor. This
is his body armor. The same evidence would have
come in. The same evidence of the cocaine and the
same evidence of his flight.

Kelly objected, maintaining that the comment constituted

bolstering of Andrews's testimony, was speculative, and was not

based on evidence adduced at trial. He contends that the district

court erred in overruling his objection.

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 Our "task in reviewing a claim of prosecutorial misconduct is

to decide whether the misconduct casts serious doubt upon the

correctness of the jury's verdict." United States v. Carter, 953

F.2d 1449, 1457 (5th Cir.), cert. denied, ___ U.S. ___, 112 S. Ct.

2980 (1992). In making that determination, we consider: "(1) the

magnitude of the prejudicial effect of the statements; (2) the

efficacy of any cautionary instructions; and (3) the strength of

the evidence of the appellant['s] guilt." Id.

Applying those factors, we hold that the prosecutor's comments

did not deprive Kelley of a fair trial. The comment that the same

evidence would have been introduced in the absence of Andrews's

testimony does not constitute "bolstering", nor does it imply that

there was other evidence, not adduced at trial. Instead, the

prosecutor merely responded to Kelley's closing argument, and urged

the jury to consider the other evidence of Kelley's guilt even if

it chose to disregard Andrews's testimony. With respect to the

second factor, the jury was instructed to consider only the

evidence and that the attorneys' arguments were not evidence. See

United States v. Ellender, 947 F.2d 748, 758 (5th Cir. 1991).

Finally, the evidence of Kelley's guilt was substantial. We

therefore conclude that the prosecutor's remarks cast no doubt upon

the correctness of the jury's verdict.

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 E

Sentencing

Finally, Kelley contends that the district court erred in

sentencing him as an "armed career criminal," because he lacked

three prior convictions for serious drug offenses committed on

separate occasions. See 18 U.S.C. § 924(e)(1); U.S.S.G. § 4B1.4.

Kelley acknowledges that he has at least three prior convictions

for serious drug offenses, but contends that those convictions

arose from only two "courses of conduct."

The record reflects that Kelley was convicted in Alabama on

December 3, 1979, for two counts of delivery of cocaine. The

deliveries occurred on January 25 and February 8, 1979, and

involved sales to undercover officers in Choctaw County, Alabama,

and in Toxey, Alabama. In addition, Kelley was convicted in

Florida on September 13, 1982, for possession of a controlled

substance, and was convicted in Alabama on May 9, 1983, for giving

away marijuana. Kelley maintains that the two 1979 convictions

should be treated as only one conviction for purposes of the Armed

Career Criminal Act, because they arose out of the same course of

conduct. He also maintains that the 1982 and 1983 convictions in

Florida and Alabama should be counted as only one conviction,

because they arose from a single conspiracy to harvest and

distribute marijuana.

In United States v. Herbert, 860 F.2d 620 (5th Cir. 1988),

cert. denied, 492 U.S. 927 (1989), our court interpreted the Armed

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Career Criminal Act, and concluded that "multiple convictions

arising from multiple criminal transactions should be treated as

separate convictions, regardless of the number of judicial

proceedings involved in the conviction." Id. at 622. Kelley's

1979 state convictions involved two separate deliveries of drugs on

separate days at separate locations. We therefore "have no

difficulty in holding that these instances were separate criminal

transactions." See Herbert, 860 F.2d at 622 n.1.; see also United

States v. Medina-Gutierrez, ___ F.2d ___, ___, 1992 WL 380462, *2

(5th Cir. Dec. 23, 1992) (holding that three burglaries, committed

within weeks of one another, and which defendant argued were part

of a "common plan," were committed "on occasions different from one

another" within the meaning of 18 U.S.C. § 924(e) and U.S.S.G. §

4B1.4). Accordingly, even if the 1982 and 1983 convictions are

treated as one conviction, which we need not address, Kelley has

the requisite number of convictions for sentencing pursuant to the

Armed Career Criminal Act. Accordingly, the district court did not

err in sentencing him as an armed career criminal.

IV

For the reasons we have set out in this opinion, the judgment

of the district court is

A F F I R M E D.

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