U.S. v. Mergerson

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 92-1179
_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JERRY WAYNE MERGERSON and
RICHARD UCHECHUKWU ANUNASO,

Defendants-Appellants.

_________________________________________________________________

Appeals from the United States District Court
for the Northern District of Texas
_________________________________________________________________
(July 12, 1993)

Before KING, HIGGINBOTHAM and DEMOSS, Circuit Judges.

KING, Circuit Judge:

Jerry Wayne Mergerson ("Mergerson") and Richard Uchechukwu

Anunaso ("Anunaso") were convicted of various drug offenses in

connection with a heroin ring in which they were involved.

Mergerson was also convicted of being a felon in possession of a

firearm. Mergerson and Anunaso appeal their convictions and

corresponding sentences. We affirm both Anunaso's drug

convictions and sentences. We affirm Mergerson's convictions on

counts one through four of the indictment, but reverse his

conviction on count five. We likewise affirm Mergerson's

1
sentences for his convictions on counts two through four, but

vacate Mergerson's sentence for count one of the indictment. We

remand for resentencing.

I. PROCEDURAL AND FACTUAL BACKGROUND

A.

On October 8, 1991, a grand jury returned a five-count

indictment against Mergerson and Anunaso. Count one of the

indictment charged the defendants and Mergerson's girlfriend,

Sheila Guy, with conspiracy to traffick heroin in violation of 21

U.S.C. § 846. Counts two, three, and four each charged Mergerson

with unlawful distribution of heroin in violation of 21 U.S.C. §

841(a)(1). Pursuant to 18 U.S.C. § 2, Anunaso was charged under

counts two, three, and four with aiding and abetting Mergerson.

In count five of the indictment, Mergerson was additionally

charged with unlawful possession of a firearm by a felon in

violation of 18 U.S.C. § 922(g)(1). On October 11, 1991, the

Government filed a "penalty enhancement" information under 21

U.S.C. § 841(a)(1) with respect to Mergerson, alleging eight

prior felony drug convictions.

Mergerson and Anunaso were tried on December 4, 1991, and

both were found guilty of all charges against them. On January

3, 1992, pursuant to 21 U.S.C § 851(b), Mergerson was arraigned

regarding the "penalty enhancement" information. On January 17,

1993, at a hearing on the Government's "penalty enhancement"

information, certified copies of Mergerson's prior federal and

2
state convictions were introduced into evidence, and Mergerson

was identified as being the same person named in those documents.

The district court found, beyond a reasonable doubt, that the

allegations of prior convictions were true.

On February 21, 1992, Anunaso was sentenced to concurrent

250-month terms of imprisonment on counts one, three, and four of

the indictment and to a 240-month term on count two of the

indictment. Anunaso was also sentenced to concurrent five-year

terms of supervised release on each count. The court also

imposed a $200 special assessment. Mergerson was sentenced to

concurrent terms of life imprisonment on counts one, three, and

four and to concurrent thirty-year terms on counts two and five.1

The court imposed concurrent eight-year terms of supervised

release on counts two, three, and four, and a concurrent five-

year term of supervised release on count five.

B.

This case involved three distinct drug transactions that

occurred in late 1991. The first transaction took place on

August 19, 1991, when DEA Special Agent David Battiste met with

Mergerson in a parking lot in Fort Worth, Texas, for the purpose

of purchasing an ounce of heroin. At that meeting, Mergerson

1
Pursuant to 21 U.S.C. § 841(a)(1)(A), Mergerson was
sentenced to a mandatory life term without possibility of release
on count one of the indictment, which charged Mergerson with
conspiracy to possess more than a kilogram of heroin. The
remaining life sentences were not imposed without the possibility
of release.

3
told Battiste that he did not have the heroin, but would retrieve

it at another location. At that point, Mergerson and Battiste

got in Battiste's car and began driving to Anunaso's apartment

complex. While en route to Anunaso's apartment, Mergerson told

Battiste that his heroin business was thriving and that he had

"several girls" working for him. Mergerson then made a number of

phone calls on Battiste's mobile phone, one of which was later

identified as being made to Anunaso's mobile phone. During one

of the phone calls, Mergerson told the other party that he would

be over shortly and that he was bringing a friend.

Contemporaneously, a DEA agent conducting surveillance saw

Anunaso outside of his apartment building talking on a mobile

phone.

Upon reaching the apartment complex, Mergerson went into

Anunaso's building and returned within a few minutes accompanied

by Anunaso. Anunaso made eye contact with Battiste, who stood

next to Mergerson, and nodded. Mergerson then informed Battiste

that he had the heroin all along and directed Battiste to return

to Mergerson's car. When they returned to his car, Mergerson

delivered 24.9 grams of heroin to Battiste in exchange for

$5,500.

On September 5, 1992, Battiste again met with Mergerson at a

hotel. During this second transaction, which was videotaped,

Mergerson sold 100.2 grams of heroin to Battiste. Shortly

thereafter, DEA Special Agent Misha Harrington, acting

undercover, joined Mergerson and Battiste. Harrington entered

4
the room with two bundles of cash and asked Mergerson to count

it. During the same meeting, the undercover agents asked

Mergerson how much heroin he could supply at any one time.

Mergerson replied that "the sky was the limit." After some

discussion in which Mergerson offered to sell to them a kilogram

of heroin that afternoon, Battiste and Harrington told him that

they wished to purchase a kilogram later in the week. As the

three men left the hotel room, Mergerson introduced himself to

Harrington by his nickname "Big Merk." Later that day,

surveillance officers followed Mergerson to a business by the

name of "Communications on the Run," where Mergerson claimed to

be employed, and later to Anunaso's apartment.

At approximately 12:30 p.m. on September 11, 1991, Mergerson

negotiated with Battiste by telephone for the sale of one

kilogram of heroin to Battiste and Harrington for $170,000. The

drugs were to be delivered to the same hotel where the prior

transaction had occurred. At 1:00 p.m., Mergerson called

Battiste to tell him that he was only able to acquire 350 grams.

Surveillance personnel observed Mergerson arriving at Anunaso's

apartment complex in a automobile registered to Anunaso.

Mergerson left the apartment complex in the same vehicle and

drove it to the hotel. There Mergerson met with the two agents

and delivered to the agents 334.8 grams of heroin. At the outset

of the meeting, the agents questioned Mergerson about why he did

not bring an entire kilogram. Mergerson answered that he was not

the one in the trafficking operation who controlled the heroin.

5
He further stated that "we got a place where we keep it" and that

when he went to that location there was less than a kilogram

present. Mergerson assured them that he would be able to get the

rest of the heroin the next day or "Friday at the latest," but

could not do so immediately because "his man" was "out of town."

Mergerson was arrested shortly thereafter.

A search warrant was executed at Anunaso's apartment after

Mergerson was arrested. Police seized a number of items of

incriminating evidence, including: (i) a piece of paper

containing notations that were later identified as referring to

the heroin used in the transaction as well as heroin used in

other transactions, (ii) a small electronic business organizer

which contained the name "Merk" together with the address and

telephone number of "Communications on the Run" and Mergerson's

pager number, (iii) a notebook containing notes of what appeared

to be narcotics transactions, which included the name "Merk,"

(iv) a box containing several plastic baggies, and (v) a loaded

.25 caliber pistol. A search conducted at Mergerson's residence

on October 11, 1991, resulted in the seizure of an inoperable

nine millimeter pistol from beneath the mattress and box spring

in the master bedroom, a shoe box containing zip lock baggies,

and a 7.8 grams of cocaine. Anunaso was also arrested.

II. DISCUSSION

A. Sufficiency of the Evidence: the Drug Convictions

Mergerson and Anunaso both challenge the sufficiency of the

6
evidence supporting their convictions under the first count of

the indictment, which alleged a conspiracy to traffick in heroin

in violation of 21 U.S.C. § 846. Anunaso also challenges the

sufficiency of the evidence supporting his conviction under

counts two, three, and four that charged him with aiding and

abetting Mergerson's distributions of heroin. Mergerson does not

challenge the sufficiency of the evidence on the three

distribution counts.

The standard of review in assessing a challenge to the

sufficiency of the evidence in a criminal case is whether a

"reasonable trier of fact could have found that the evidence

established guilt beyond a reasonable doubt." United States v.

Bell, 678 F.2d 547, 549 (5th Cir. 1982) (en banc), aff'd on other

grounds, 462 U.S. 356 (1983). In evaluating the sufficiency of

the evidence, a court views all evidence and all reasonable

inferences drawn from it in the light most favorable to the

government. See Jackson v. Virginia, 443 U.S. 307, 319 (1979);

Glasser v. United States, 315 U.S. 60, 80 (1942). This standard

applies whether the evidence is direct or circumstantial. See

United States v. Triplette, 922 F.2d 1174 (5th Cir), cert.

denied, 111 S. Ct. 2245 (1991).

i) The Conspiracy Count

In a conspiracy prosecution under 21 U.S.C. § 846, the

government must prove beyond a reasonable doubt not only the

existence of an agreement between two or more persons to violate

7
the narcotics laws, but also that each person knew of the

conspiracy, intended to join it, and actually participated in the

conspiracy. See United States v. Espinoza-Seaenz, 862 F.2d 526,

536 (5th Cir. 1988); United States v. Michelena-Orovio, 719 F.2d

738, 742 (5th Cir. 1983) (en banc), cert. denied, 465 U.S. 1104

(1984). A mere association with persons in the conspiracy or

presence at the scene of the crime is not enough. See United

States v. Davis, 666 F.2d 195, 201 (5th Cir. 1982).

Anunaso argues that the Government's evidence is

insufficient because it proves only a mere association between

Mergerson and Anunaso. In support of his contention, Anunaso

points out that the Government failed to find any direct

evidence, such as heroin, in the search of his apartment.

Moreover, he argues, at no time during any of the three drug

transactions was there direct evidence to link him to the

conspiracy. During the two videotaped transactions, Anunaso

points out, there was no direct mention of his participation

whatsoever. Nor did co-defendant Sheila Guy mention Anunaso's

involvement. Finally, Anunaso argues that the writings found by

the agents are insufficient because the police never took any

writing exemplars to prove that the writings were made by Anunaso

and further because there is nothing in the writings to link them

to any specific activity or incident.

In a similar vein, Mergerson argues that the evidence was

insufficient to show any conspiratorial agreement between

Mergerson and either Sheila Guy or Anunaso. With respect to Guy,

8
Mergerson contends that the evidence proves no more than that he

lived with her and that she drove him to the hotel on the day of

the third transaction, September 11, 1991. It is undisputed that

Guy remained in the car until Mergerson was arrested. Mergerson

argues that there is no evidence that she knew anything about the

transaction taking place in the hotel room, or of the previous

two transactions. With respect to Anunaso, Mergerson maintains

that the evidence shows only that the two men were acquainted.

Conceding that their associations were suspicious, Mergerson

argues that "suspicious circumstances . . . are not enough to

sustain a conviction for conspiracy . . . ." United States v.

Nusraty, 867 F.2d 759, 764 (2d Cir. 1989).

The Government argues that the evidence regarding each of

the three transactions establishes much more than a mere

association. During the first transaction, Mergerson told

Battiste that they would have to go retrieve the heroin, and in

so doing they drove directly to Anunaso's apartment. While

driving to Anunaso's apartment, Mergerson bragged to Battiste

that his drug business was going so well that he had several

females making deliveries for him. The Government also notes

that only after Anunaso looked Battiste over and nodded at

Mergerson did Mergerson consummate the heroin sale. During the

second delivery of heroin, Mergerson told the agents that "his

man" set the price of the heroin and that Mergerson did not

control the heroin supply. Immediately after the deal was made,

Mergerson met with Anunaso and drove to Anunaso's apartment.

9
During the third transaction, Mergerson told Battiste that he had

to go get the heroin, and ten minutes later agents spotted

Mergerson arriving at Anunaso's apartment. Mergerson drove to

the transaction in Anunaso's car. A digital electronic gram

scale was later discovered in that automobile. We also observe

that agents found documents at Anunaso's apartment which

contained notes of narcotics transactions which listed "Merk" as

a participant. Anunaso's electronic business organizer contained

the name "Merk" along with Mergerson's phone number and pager

number.

Although almost entirely circumstantial, the evidence of a

conspiratorial relationship between Mergerson and Anunaso was

extensive. Viewing that evidence and all reasonable inferences

drawn from it in a light most favorable to the government,

Glasser, 315 U.S. at 80, we believe that a rational jury could

have concluded beyond a reasonable doubt that Anunaso was

Mergerson's heroin supplier. As such, Anunaso and Mergerson not

only agreed to violate the narcotics laws, but also each actively

participated in the drug trafficking operation.2

2
Because we find the evidence is abundantly sufficient to
support the existence of a conspiracy between Mergerson and
Anunaso, we need not address the sufficiency of the evidence
linking the third co-defendant charged in the first count of the
indictment, Sheila Guy, with the conspiracy. Neither Mergerson
nor Anunaso have argued that there was a fatal variance between
count of the indictment and the proof at trial regarding the
evidence implicating Guy in the conspiracy. See United States v.
Hernandez, 962 F.2d 1152, 1159 (5th Cir. 1992). Even if they
had, we believe that any such variance did not affect the
substantial rights of either defendant and, thus, was not
reversible error. See id.

10
ii) Anunaso's Distribution Convictions

Anunaso further contends that the evidence is insufficient

to support his convictions under the aiding-and-abetting statute

for Mergerson's three separate distributions of heroin to the

undercover agents. To prove aiding and abetting in a criminal

venture, the prosecution must prove that the defendant: i)

associated with the criminal enterprise, ii) participated in the

venture, and iii) sought by action to make the venture succeed.

See United States v. Stone, 960 F.2d 426, 433 (5th Cir. 1992).

The above-mentioned evidence establishing the guilt of Anunaso on

the conspiracy count equally establishes his guilt on all three

of the substantive counts of distribution. Regarding each of the

three separate transactions between Mergerson and the undercover

agents, the Government presented sufficient evidence to prove all

three elements of Anunaso's aiding and abetting.

B. Did the district court employ the proper standard of proof in
finding that the conspiracy involved more than one kilogram of
heroin?

Pursuant to a federal statute, the district court's factual

finding that Mergerson had the quantity of heroin at issue in

this case -- more than one kilogram -- triggered a mandatory term

of life imprisonment without possibility of release in

Mergerson's case. See 21 U.S.C. § 841(a)(1)(A)(i) (possession of

one kilo or more of heroin and two or more prior convictions for

felony drug offense results in mandatory life sentence). Had the

district court found less than a kilogram but more than 100

11
grams, then Mergerson would have been eligible for a prison term

between thirty years and life. See 21 U.S.C. § 841(b)(1)(B)

(possession of between 100-999 grams of heroin and two or more

prior convictions results in sentencing range of 10 years to

life); U.S.S.G. § 4B1.1 & Sentencing Table (career offender

provision, requiring sentencing range of 360 months to life).

At the sentencing hearing, the district court made its

finding regarding the quantity of heroin under the preponderance-

of-the-evidence standard and, alternatively, under the clear-and-

convincing-evidence standard. Mergerson contends that the

district court should have instead employed the reasonable doubt

standard. It is well-established law in this circuit that, as a

general matter, the burden of proof at sentencing is by a

preponderance of the evidence. See United States v. Angulo, 927

F.2d 202, 205 (5th Cir. 1991) ("[T]he district court need only

determine its factual findings at sentencing by a `preponderance

of relevant and sufficiently reliable evidence.'") (citation

omitted); United States v. Kinder, 946 F.2d 362 (5th Cir. 1991),

cert. denied, 112 S.Ct. 2290 (1992). Mergerson argues, however,

that the due process clause requires an exception to the

traditional preponderance standard when a particular sentencing

fact found by the district court dramatically alters the

statutory maximum for the offense of conviction.3

3
In the case at bar, the district court did employ the
reasonable doubt standard in finding that Mergerson was a repeat
offender. That standard is required by the relevant statute, 21
U.S.C. § 851(c)(1). By introducing genuine copies of court
documents proving Mergerson's prior convictions and further

12
 We recognize a growing number of cases decided by courts in

other circuits in which a higher standard of proof has been

suggested or required when a finding of a particular fact

relevant to sentencing dramatically alters the sentencing options

of the court to the disadvantage of the defendant. See, e.g.,

United States v. Kikumura, 918 F.2d 1084, 1101 (3rd Cir. 1990)

(requiring finding by clear-and-convincing-evidence standard);

United States v. Julian, 922 F.2d 563, 569 n.1 (10th Cir. 1990)

(in remanding to district court, suggesting same); United States

v. Restrepo, 946 F.2d 654, 661, n.12 (9th Cir. 1991) (en banc)

(citing Kikumura with approval); United States v. Townley, 929

F.2d 365, 370 (8th Cir. 1991) (same); see also Richard Husseini,

Comment, The Federal Sentencing Guidelines: Adopting Clear and

Convincing Evidence as the Burden of Proof, 57 U. CHI. L. REV.

1387 (1990); but see United States v. Masters, 978 F.2d 281, 287

(7th Cir. 1992). We also recognize dicta in the Supreme Court's

decision in McMillan v. Pennsylvania, 477 U.S. 79 (1986), to the

same extent. See id. at 88 (suggesting that in cases where

certain sentencing fact is a "tail which wags the dog of the

substantive offense," reasonable doubt standard may be required);

see also Kinder v. United States, 112 S. Ct. 2290 (1992) (White,

J., dissenting from denial of certiorari) (arguing that Court

establishing that Mergerson was the individual named in those
documents, the Government proved the fact of Mergerson's prior
convictions beyond a reasonable doubt. Mergerson's argument on
appeal is not that the district erred regarding his prior
offender status; rather, it relates to the district court's
finding that Mergerson possessed more than a kilogram of heroin.

13
should grant certiorari to decide whether higher standard of

proof than mere preponderance standard should be applied in

Guidelines cases requiring dramatically higher sentence if

certain sentencing fact found).

In a recent Sentencing Guidelines case, we recognized the

Third Circuit's decision in Kikumura, supra, and commented on the

possibility of requiring a higher standard than the preponderance

standard in certain sentencing situations. However, we saw no

need to decide the issue because the defendant simply had argued

that a clear-and-convincing standard was all that was necessary

and the district court in that case had in fact employed such a

standard. See United States v. Billingsley, 978 F.2d 861, 866

(5th Cir. 1992). In the instant case, although the district

court applied both the preponderance standard and the clear and

convincing standard, we must address the merits of the issue

because the appellant has argued that the district court should

have applied the reasonable doubt standard.

We believe that, although there may be certain cases where a

sentencing fact is a "tail that wags the dog of the substantive

offense," McMillian, 477 U.S. at 88, and might arguably require a

finding beyond a reasonable doubt, id., this is not such a case.

Accordingly, the preponderance standard was sufficient. We

observe that Mergerson would have faced punishment as a career

offender under U.S.S.G § 4B1.1 regardless of whether the district

court had found that the offense involved more than a kilogram of

heroin. Mergerson does not contest the fact that the offense

14
involved at least 100 grams of heroin. Punishment for such an

offense by a recidivist such as Mergerson under 21 U.S.C §

841(b)(1)(B) includes a term of imprisonment of not less than ten

years nor more than life. U.S.S.G § 4B1.1 additionally requires

that, as a career offender, Mergerson's offense level be set at

37. When Mergerson's criminal history category of VI is factored

into the sentencing equation, the Guidelines require the

imposition of a sentence of between thirty years and life

imprisonment. See U.S.S.G., Sentencing Table. Therefore,

because the minimum mandatory penalty in this case would have

been thirty years in any event (with the maximum sentence of life

possible), the district court's finding that Mergerson possessed

over a kilogram of heroin did not have the dramatic effect upon

sentencing necessary to require the reasonable doubt standard to

be considered.

Mergerson alternatively argues that the reasonable doubt

standard should have been employed because a mandatory life

sentence without the possibility for release was automatic once

the district court found over a kilogram of heroin. This

argument, which assumes that such an extremely harsh punishment

requires a heightened standard of proof regarding dispositive

sentencing facts, implicates concerns traditionally raised in the

Eighth Amendment context. Outside the capital sentencing

context, such heightened protections during the sentencing phase

of a criminal trial are generally unnecessary simply because the

punishment is life imprisonment without the possibility for

15
release. Cf. Harmelin v. Michigan, 111 S. Ct. 2680, 2701-02

(1991) (mandatory sentence of life imprisonment without parole

for the crime of possession of more than 650 grams of cocaine was

not cruel and unusual in violation of the Eighth Amendment);

Rummel v. Estelle, 445 U.S. 263 (1980) (life sentence without

parole for three relatively minor non-violent felonies not Eighth

Amendment violation); see also Woodson v. North Carolina, 428

U.S. 280, 305 (1976) (joint opinion of Stewart, Powell & Stevens,

JJ.) (requiring heightened protections in capital sentencing

context, commenting that "[d]eath, in its finality, differs more

from life imprisonment than a 100-year prison term differs from

one of only a year or two"). Although numerous lower courts have

required that sentencing facts must be found beyond a reasonable

doubt in the capital sentencing context,4 such cases were based

on the uniqueness of the death penalty. See, e.g., People v.

Balderas, 711 P.2d 480, 516 n.32 (Cal. 1985). Although harsh, a

mandatory life sentence simply does not implicate the same Eighth

Amendment concerns. Cf. Harmelin, supra. We thus reject

Mergerson's argument that the reasonable doubt standard should

have been employed in view of the mandatory life imprisonment

that was triggered by the district court's finding of over a

4
See, e.g., People v. Heishman, 753 P.2d 629, 651-52 (Cal.
1988) (requiring unadjudicated extraneous offenses offered in
aggravation to be found beyond a reasonable doubt); State v.
Lafferty, 749 P.2d 1239, 1259 (Utah 1988) (same). This court has
never addressed that precise issue, although we have repeatedly
held that evidence of unadjudicated extraneous offenses is
admissible in the capital sentencing context. See, e.g.,
Williams v. Lynaugh, 814 F.2d 205, 207-08 (5th Cir. 1987).

16
kilogram of heroin.

C. Did the district court err in finding the applicable drug
quantities for sentencing purposes?

Both Anunaso and Mergerson challenge the correctness of the

district court's findings regarding the applicable drug

quantities for purposes of sentencing. A district court's

determination of the amount of drugs involved in an offense is

protected by the clearly erroneous standard of appellate review.

See United States v. Mir, 919 F.2d 940 (5th Cir. 1990); United

States v. Sarasti, 869 F.2d 805, 806 (5th Cir. 1989). As

discussed, in the instant case, the appropriate standard of proof

was the preponderance standard.

We initially observe that we must engage in two separate

sufficiency analyses regarding the district court's findings.

The first concerns the district court's quantity findings made

pursuant to the Sentencing Guidelines. The presentence

investigation report, which was adopted by the district court,

found that 1650 grams of heroin5 was involved in the conspiracy

for purposes of sentencing under the Guidelines. That finding

was based not only on the amounts of heroin actually proven to

have been possessed with the intent to distribute, but also those

amounts negotiated during the Government's undercover sting

operation. The second sufficiency analysis concerns the district

5
156 grams of the "heroin" was actually a Guidelines
conversion from 7.8 grams of cocaine base. Neither defendant has
objected to the conversion or its inclusion in the 1650-gram
total quantity.

17
court's quantity finding for purposes of sentencing Mergerson to

a mandatory life sentence under 21 U.S.C. § 841(a)(1)(A)(i).

Based on drug transaction notes found in Anunaso's residence, the

district court found that Mergerson actually possessed over 1000

grams of heroin with the intent to distribute. Because §

841(a)(1)(A)(i) requires that drug quantities actually be

possessed with the intent to distribute -- rather than merely

being negotiated -- the district court's findings for purposes of

Guidelines sentencing are in large part inapplicable to the

court's separate findings pursuant to § 841(a)(1)(A)(i).6

i. The district court's quantity findings for the Guidelines
sentences

The appellants' first objection to the 1650-gram is that it

allegedly includes both the 334.8 grams of heroin sold on

September 11, 1991, and the one kilogram of heroin that the

parties negotiated for prior to the September 11 sale. The

appellants contend that the 334.8-gram figure should be merged

6
The only overlap between the two findings were the amounts
of heroin listed in the PSI that were actually possessed by
Mergerson and Anunaso. Of the 1650 grams listed in the PSI only
a approximately 450 grams were actually possessed; the remainder
was the kilogram negotiated by Mergerson with the undercover
agents (but never delivered or possessed) and the 156 grams of
"heroin" converted from the 7.8 grams of cocaine base found in
Mergerson's apartment. Thus, considering only the amounts of
heroin listed in the PSI that were actually possessed, the
district court could not have sentenced Mergerson to a mandatory
life sentence under § 841(a)(1)(A). For purposes of Mergerson's
non-Guidelines sentencing on count one, the district court
separately found that over 1000 grams were actually possessed.
The latter finding was based on the drug transaction notes found
in Anunaso's apartment. See infra.

18
into the one kilogram figure so that the maximum amount that

could be found from the September 11 negotiations and transaction

is one kilogram. This argument ignores the fact that on

September 11, 1991, after he sold the heroin to Battiste,

Mergerson negotiated with the agents for an additional kilogram

to be delivered the following week. Mergerson told Harrington

and Battiste that the "sky was the limit" for him and that he

could get as much heroin as they wished.

The appellants next argue that the one-kilogram figure

should not be used in the Guidelines calculations at all because

Mergerson's statements about being able to provide a kilogram

were mere "puffing" and that in fact he could not actually

produce that quantity of drugs. Anunaso relies on U.S.S.G. §

2D1.4 commentary which provides:

In an offense involving negotiation to
traffic in a controlled substance, the weight
under negotiation in an uncompleted
distribution shall be used to calculate the
applicable amount. However, where the court
finds that the defendant did not intend to
produce and was not reasonably capable of
producing the negotiated amount, the court
shall exclude from the guideline calculation
the amount that it finds the defendant did
not intend to produce and was not reasonably
capable of producing. (emphasis added).

See also United States v. Garcia, 889 F.2d 1454, 1456-57 (5th Cir

1989), cert. denied, 494 U.S. 1088 (1990). Mergerson's prior

deliveries and promises for future deliveries, when taken in

conjunction with the narcotics transaction notes found at

Anunaso's apartment, are evidence from which a fact-finder could

reasonably determine that Mergerson had both the intent and

19
ability to produce the negotiated amount.7 Thus, the district

court's finding regarding the applicable drug quantity for

sentencing purposes was not clearly erroneous.

ii. The district court's quantity finding for purposes of
Mergerson's mandatory life sentence on count one

In order to sentence Mergerson to a mandatory life term of

imprisonment under 21 U.S.C. §§ 841(a)(1)(A)(i) & 846, the

district court had to find by a preponderance of the evidence

that Mergerson actually possessed or conspired with Anunaso to

actually possess over a kilogram of heroin during the conspiracy

alleged in count one of the Government's indictment.8 Mere proof

of the amounts "negotiated" with the undercover agents --

including the kilogram of heroin discussed immediately, supra --

would not count toward the quantity of heroin applicable to the

conspiracy count.9

7
Simply because Mergerson was unable to produce the full
kilogram on September 11, 1991, does not mean that he was not
ultimately capable of producing it.
8
During the sentencing hearing, the district court appeared
to say that only amounts actually possessed with the intent to
distribute -- as opposed to amounts that were part of a
conspiracy to possess with the intent to distribute, but never
actually possessed -- could be considered in sentencing under §
841(b)(1)(a). This is also the position taken by Mergerson on
appeal. We disagree. A mandatory life sentence is permissible
so long as there is even a conspiracy to possess with the intent
to distribute (assuming that all other statutory requirements are
met). See United States v. McGlory, 968 F.2d 309, 346 & n.25 (3d
Cir. 1992); United States v. Frazier, 936 F.2d 262, 266 (6th Cir.
1991).
9
It is axiomatic that a criminal cannot conspire with
undercover law enforcement officials. See United States v.
Enstam, 622 F.2d 857, 867 (5th Cir. 1980); see also United States
v. Kelly, 888 F.2d 732, 740 (11th Cir. 1989). Thus, the one

20
 It is essentially undisputed that Mergerson actually

possessed approximately 450 grams of heroin, the quantity

actually distributed to the agents. The only other evidence

offered by the Government to support its allegation that

Mergerson conspired to possess over a kilogram of heroin with the

intent to distribute was a small, undated piece of paper with

handwritten notes that, the Government argues, refer to narcotics

transactions. That piece of paper was seized during a search of

Anunaso's apartment. In addition to a substantial amount of

indecipherable writings and a telephone number, the paper

contains the name "MERK" and a series of numbers written as

follows:

825368

1360

MERK 8 -- 500 -- 860
|
500 -- 360

The Government interprets this series of notations to

represent various agreements between Mergerson and Anunaso to

possess heroin for the purpose of distributing it. In

particular, the Government contends that the 360 "corresponds" to

the 350 grams of heroin that Mergerson stated was available for

kilogram of heroin that Mergerson negotiated with the undercover
agents cannot be considered to be a part of the conspiracy
alleged in count one of the indictment.

21
delivery on September 11, 1991.10 The Government hypothesizes

that the 1360 represents the total amount of heroin distributed

by Mergerson during the conspiracy and that the two 500's were

distributed by Mergerson to unidentified parties other than the

undercover agents. For purposes of sentencing Mergerson under §

841(a)(1)(A)(i), the district court accepted the Government's

theory and found that 1360 grams were actually possessed by

Mergerson with the intent to distribute.

We believe that the district court clearly erred in

accepting the Government's interpretation of the piece of paper

for purposes of sentencing Mergerson to a mandatory term of life

imprisonment. To begin with, we believe that the piece of paper,

besides the reference to Mergerson's nickname "Merk," is of

extremely slight probative value regarding proof of the quantity

of heroin used in the conspiracy alleged in count one of the

indictment. The writings on the paper do not in any way refer to

heroin. It is undisputed that Mergerson also dealt in at least

one other drug, i.e., cocaine. Furthermore, there is no proof

that the numbers are references to grams. The numbers could just

as easily refer to dollar amounts. Nor is there any mention of

dates of the alleged transactions. Count one of the indictment

specifically limits the charged conspiracy to the period from

August 18, 1991, to September 11, 1991.

In sum, we hold that the district court clearly erred in

finding that Mergerson possessed over a kilogram of heroin with

10
In fact, Mergerson only delivered 334.8 grams of heroin.

22
the intent to distribute. We further believe that the district

court would have likewise erred in finding that Mergerson

conspired to possess over a kilogram of heroin with the intent to

distribute. Therefore, we vacate Mergerson's mandatory life

sentence imposed for his conviction on count one and remand for

resentencing.

D. Did the district court err in its determination of the
respective roles of each defendant in the offenses?

The district court determined, based upon the information in

the presentence investigation report (PSI), that each defendant

was "an organizer or leader of a criminal activity that involved

five or more participants or was otherwise extensive," see

U.S.S.G. § 3B1.1(a), and assessed a four-level increase in the

offense level pursuant to that provision of the Guidelines.

Mergerson and Anunaso argue that the four-level increases in

their respective sentences were erroneous. We have repeatedly

held that "[a] reviewing court will disturb a district court's

factual finding regarding sentencing factors only if those

findings are clearly erroneous." United States v. Whitlow, 979

F.2d 1008, 1011 (5th Cir. 1992); United States v. Franco-Torres,

869 F.2d 797, 800 (5th Cir. 1989). A factual finding is not

clearly erroneous so long as it is plausible in light of the

record read as a whole. See United States v. Fields, 906 F.2d

139, 142 (5th Cir.), cert. denied, 111 S.Ct. 200 (1990); Whitlow,

979 F.2d at 1011. Both Anunaso and Mergerson assert that the

district court's failure to specify the "five or more

23
participants" involved in the criminal activity was error which

justifies vacating the sentence and remanding for resentencing.

The appellants rely on United States v. Schweihs, 971 F.2d 1302

(7th Cir. 1992). In Schweihs, the Seventh Circuit held, in

construing U.S.S.G. § 3B1.1(a), that the district court must

identify the five (or more) participants and determine whether

the defendant exhibited leadership or control over all five (or

more) of them. Id. at 1318.

The Government argues that we need not reach the appellants'

argument here because the four-level increase was justified on

the independent ground that the criminal activity was "otherwise

extensive," U.S.S.G. § 3B1.1(a), even if the district court erred

by not specifically finding the existence of five (or more)

individuals over whom the two defendants had control.11 We agree

that there is ample evidence that Mergerson and Anunaso's drug

11
The Government also contends that the district court had
before it ample evidence -- including the drug transaction notes
and recordings of messages left by Mergerson and others on
Anunaso's telephone answering system regarding various drug
transactions -- that supported the district court's finding that
there were five or more participants. We note that, although the
appellants' specific reliance on the Seventh Circuit's opinion in
Schweihs appears to be foreclosed by this court's decision in
United States v. Barbontin, 907 F.2d 1494, 1497-98 (5th Cir.
1990) ("the identities of the transactional participants need not
be expressly proved"), Barbontin requires that the district court
may only consider unidentified participants when there is proof
that they were "involved in the precise transaction underlying
the conviction." Id. (emphasis in original). The district court
never made such a specific finding in the instant case. However,
because we affirm the district court's alternative finding that
the conspiracy was "otherwise extensive," we need not require
resentencing pursuant to § 3B1.1(a).

24
trafficking activities were "otherwise extensive."12 Mergerson

admitted to controlling the activities of "several girls" who

distributed heroin for him. Anunaso served as the source of

heroin to Mergerson and others, including "Spencer" and "Beneda."

The amount and street value of the heroin negotiated in the

instant case was also extremely large. Moreover, there was

undisputed evidence that this case involved the distribution of

high-purity heroin.13 Based on the totality of the evidence, we

uphold the district court's § 3B1.1(a) increase in both

appellants' cases.

E. Was the evidence sufficient to support Mergerson's conviction
on the firearm count?

Mergerson was convicted of count five of the indictment,

12
In making its findings during sentencing, the district
court specifically stated, "I now find and conclude that [the co-
defendants'] activity involved five or more participants and, as
well, as a separate finding, that it was otherwise extensive as
to each one."
13
Such evidence is another basis on which to find
"otherwise extensive" criminal activity. As the Sentencing
Commission has stated:

The purity of the controlled substance,
particularly in the case of heroin, may be
relevant to the sentencing process because it
is probative of the defendant's role or
position in the chain of distribution. Since
controlled substances are often diluted and
combined with other substances as they pass
down the chain of distribution, the fact that
a defendant is in possession of unusually
pure narcotics may indicate a prominent role
in the criminal enterprise and proximity to
the source of the drugs.

U.S.S.G. § 2D1.1, Application Note 9 (emphasis added).

25
which charged him with being a felon in possession of a firearm.

See 18 U.S.C. § 922(g)(1). On appeal, Mergerson claims that the

evidence was insufficient to prove one of the elements of § 922

-- namely, that he was in possession of the firearm. The

weapon, a handgun, was found between the mattress and boxsprings

of the bed in a bedroom in the residence in which Mergerson

occupied. Mergerson stipulated that he had lived at the

residence with his girlfriend and co-defendant, Sheila Guy, for

approximately a month before his arrest.14 The evidence is

essentially undisputed that Mergerson and Guy were cohabiting in

the apartment and shared the bedroom in which the gun was

found.15 Also introduced at trial was a pawnshop receipt showing

that the weapon was purchased by Guy well before the time that

Mergerson moved into the residence.

It is well-established that possession may be actual or

constructive. See United States v. Smith, 930 F.2d 1081, 1085

(5th Cir. 1991); United States v. Posner, 868 F.2d 720, 723 (5th

14
Outside of the presence of the jury, the defense
proffered testimony from Mergerson's trial attorney, who claimed
that Guy had told him the day before that she was the lessee of
the apartment and had lived there before Mergerson moved in. Guy
also allegedly stated that she not only owned the weapon, but
also that Mergerson had no knowledge of it. The district court
refused to admit that testimony. However, because Mergerson's
trial attorney's testimony was not admitted into the evidence
before the jury, we cannot consider it for purposes of our
sufficiency review. See Holloway v. McElroy, 632 F.2d 605, 609
n.6 (5th Cir. 1981) ("We consider only his testimony before the
jury, of course, in reviewing the sufficiency of the evidence.");
cf. Crutchfield v. State, 812 S.W.2d 459 (Ark. 1991).
15
There were only two bedrooms in the residence. The one
in which the gun was found contained adult male and female
clothing; the other bedroom contained children's clothing.

26
Cir. 1989). This is clearly a case in which the Government has

attempted to prove constructive possession. "`Constructive

possession' has been defined as ownership, dominion, or control

over the contraband itself or dominion or control over the

premises in which the contraband is concealed." Smith, 930 F.2d

at 1085. In the instant case, the Government argues that the

fact that Mergerson was living in the bedroom in which the weapon

was found is enough to establish constructive possession. We

disagree. Instead, we believe that mere control or dominion over

the place in which contraband or an illegal item is found by

itself is not enough to establish constructive possession when

there is joint occupancy of a place.

Numerous other courts have addressed this precise question

and held that "[w]here . . . a residence is jointly occupied, the

mere fact that contraband is discovered at the residence will

not, without more, provide evidence sufficient to support a

conviction based upon constructive possession against any of the

occupants." United States v. Reese, 775 F.2d 1066, 1073 (9th

Cir. 1985) (citations omitted); accord United States v. Ford, ___

F.2d ___, ___, 1993 U.S. App. LEXIS 12086 at *9 (D.C. Cir. May

25, 1993) ("[I]n cases in which contraband or firearms are

discovered in a place occupied by more than one person, the

Government must establish `the likelihood that in some

discernible fashion the accused had a voice vis-a-vis' the items

in question.") (citations omitted); United States v. Bonham, 477

F.2d 1137, 1138-39 (3d Cir. 1973) (en banc) (co-defendant did not

27
have constructive possession over heroin hidden in bedroom shared

with half-brother when Government's only evidence linking him to

heroin was joint occupancy of room). Although we do not adopt

the "affirmative link" test adopted by some of these courts, see,

e.g., Reese, 775 F.2d at 1073 (requiring there to be some

"affirmative link" between defendant and contraband or weapon in

order to establish constructive possession),16 we do believe that

something else (e.g., some circumstantial indicium of possession)

is required besides mere joint occupancy before constructive

possession is established.

In our previous joint occupancy cases, this court has

adopted a "commonsense, fact-specific approach" to determining

whether constructive possession was established. Smith, 930 F.2d

at 1086. We have found constructive possession in such cases

only when there was some evidence supporting at least a plausible

inference that the defendant had knowledge of and access to the

weapon or contraband. See, e.g., United States v. McKnight, 953

F.2d 898, 902 (5th Cir. 1992) (weapon was found in plain view);

Smith, 930 F.2d at 1086 (same). In the instant case, the weapon

was not in plain view17 and there were no other circumstantial

indicia that established that Mergerson even knew of the weapon.

16
We have previously refused to adopt the "affirmative
link" test. See United States v. Smith, 930 F.2d 1081, 1086 (5th
Cir. 1991).
17
Although we have previously held that constructive
possession was established by evidence that a weapon was found,
as in the instant case, between the mattress and boxsprings of a
bed, see United States v. Munoz-Romo, 947 F.2d 170, 177 (5th Cir.
1990), that case was not a joint occupancy case.

28
Indeed, there was evidence to the contrary -- namely, the

pawnshop receipt that showed that Sheila Guy was the owner of the

weapon.

Thus, we hold that the evidence supporting Mergerson's

conviction on the fifth count of the indictment is

constitutionally insufficient. The Government may not retry

Mergerson on that count. See Burks v. United States, 437 U.S. 1

(1978).18

F. Did the district court err in finding that Anunaso and
Mergerson possessed a firearm during the commission of a drug
offense for purposes of U.S.S.G. § 2D1.1(b)(1)?

The district court applied U.S.S.G. § 2D1.1(b)(1) and

assessed a two-level increase for Anunaso's possession of a

firearm during the commission of the drug offenses. The

government must prove possession by a preponderance of the

evidence before the court can apply the two-level increase under

§ 2D1.1(b)(1). See United States v. Aguilera-Zapata, 901 F.2d

1209, 1215 (5th Cir. 1990).

The Government may prove that the defendant personally

possessed the weapon by showing that a temporal and spatial

relationship existed between the weapon, the drug trafficking

activity, and the defendant. See United States v. Hooten, 942

18
Because we have found that the conviction on count five
must be reversed on insufficiency grounds, there is no need to
reach Mergerson's claim that his conviction on count five should
also be reversed in view of the district court's exclusion of
Mergerson's trial counsel's testimony about statements allegedly
made by Sheila Guy.

29
F.2d 878 (5th Cir. 1991); United States v. Suarez, 911 F.2d 1016,

1018 (5th Cir. 1990). Generally the Government must provide

evidence that the weapon was found in the same location where

drugs or drug paraphernalia are stored or where part of the

transaction occurred. United States v. Blankenship, 923 F.2d

1110, 1115 (5th Cir.), cert. denied, 111 S.Ct 2262 (1991);

Hooten, 942 F.2d at 882; United States v. Otero, 868 F.2d 1412,

1414 (5th Cir. 1989).

The DEA agents found a gun during their search of Anunaso's

residence. The fact that Mergerson left Anunaso's apartment

shortly before he delivered the 334.8 grams of heroin, taken

together with the fact that the officers discovered, on the same

day, Anunaso's loaded gun at the apartment creates a spatial and

temporal connection between the weapon and the offense. We do

not believe that the district court's finding was clearly

erroneous.

With respect to the two-level increase assessed to

Mergerson's offense level, the district court found that the

increase was proper in view of either the weapon found within

Mergerson's residence or the weapon found in Anunaso's apartment.

Because we have previously found that there was insufficient

evidence to establish that Mergerson had constructive possession

of the firearm found in his residence, we will only review the

district court's application of § 2D1.1(b)(1) regarding Anunaso's

gun. This court has previously held that one co-conspirator may

ordinarily be assessed a § 2D1.1(b)(a) increase in view of

30
another co-conspirator's possession of a firearm during the drug

conspiracy so long as the use of the weapon was reasonably

foreseeable. See United States v. Aguilera-Zapata, 901 F.2d

1209, 1215-16 (5th Cir. 1990). Ordinarily, one co-conspirator's

use of a firearm will be foreseeable because firearms are "tools

of the trade" in drug conspiracies. Id. At the sentencing

hearing, the district court specifically found that Anunaso's use

of the weapon was reasonably foreseeable by Mergerson. We do not

believe that the district court's finding was clearly erroneous.

Thus, we affirm the district court's decision to assess §

2D1.1(b)(1) increases in sentencing both Mergerson and Anunaso.

III. CONCLUSION

For the foregoing reasons, we AFFIRM all of Anunaso's

convictions and corresponding sentences. We AFFIRM Mergerson's

convictions on counts one through four of the indictment but

REVERSE his conviction on count five of the indictment on the

ground that the evidence was constitutionally insufficient. We

further AFFIRM Mergerson's sentences on counts two through four,

but VACATE Mergerson's sentence for his conviction on count one.

We REMAND to the district court for resentencing on count one.

31