UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 94-30254
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
CHESTER CHERAMIE,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
(April 25, 1995)
Before WISDOM, WIENER, and PARKER, Circuit Judges.
WISDOM, Circuit Judge:
The defendant/appellant, Chester Cheramie, appeals from
his conviction and sentence for possession with the intent to
distribute cocaine, a violation of 21 U.S.C. § 841(a)(1). We
affirm his conviction, vacate his sentence, and remand the case to
the district court for resentencing.
I
In April 1993, Chester Cheramie met with Lloyd Joseph
Wilson in Venice, Louisiana, to discuss using Cheramie's boat to
import about 500 kilograms of cocaine. Wilson was a confidential
informant for the Drug Enforcement Administration ("DEA"), and wore
a transmitter during the meeting. Narcotics officers listened to
and recorded the conversation between Wilson and Cheramie. At the
meeting, the defendant agreed to take part in the scheme to import
cocaine and marked a map of the Gulf of Mexico with potential drop
areas.
In May 1993, Cheramie, Wilson and an undercover DEA
agent, Frank Garza, met in a motel room in Harvey, Louisiana to
discuss the importation scheme. The sheriff's department had wired
the room for audio and video recording of the meeting, but Cheramie
refused to enter the room. Cheramie, Wilson, and Garza discussed
the scheme outside the motel, and the officers were able only to
videotape the meeting. Garza testified that at the meeting, he
agreed to give Cheramie two kilograms of cocaine to finance the
scheme. Garza also testified that he placed a bag containing the
cocaine in the flatbed of Cheramie's truck, and told Cheramie that
the bag contained cocaine. Cheramie was arrested when he attempted
to drive out of the motel parking lot.
Cheramie was charged with possession with the intent to
distribute two kilograms of cocaine and was tried by a jury. Over
Cheramie's objections, the district court admitted into evidence
the audio tape recording of Cheramie's meeting with Wilson in April
1993. The court also admitted, over Cheramie's objection,
testimonial evidence of an earlier incident in which Cheramie sold
cocaine to a government witness for distribution. The jury
convicted Cheramie, and the court denied Cheramie's motion for
2
verdict of acquittal. Over his objection, the court sentenced
Cheramie as a career offender in accordance with § 4B1.1 of the
Sentencing Guidelines because of his two prior drug-related
conspiracy convictions. Cheramie was sentenced to 360 months
imprisonment and eight years of supervised release. From his
conviction and sentence, the defendant filed a timely notice of
appeal.
II
The defendant raises four arguments on appeal. The first
two arguments challenge evidentiary rulings of the district court:
the admission of the audio tape of the April 1993 meeting with
Wilson, and the admission of testimonial evidence of Cheramie's
prior involvement in cocaine sales. The defendant's third argument
challenges the sufficiency of the evidence to support his
conviction. Fourth, the defendant attacks his sentence, contending
that the district court erred in sentencing him under the career
offender provisions of the Sentencing Guidelines. We affirm the
defendant's conviction, vacate his sentence, and remand the case
for resentencing.
A
We review the district court's determination of the
admissibility of evidence for an abuse of discretion.1
The defendant's first argument on appeal contends that
the district court abused its discretion in admitting into evidence
1
United States v. Pace, 10 F.3d 1106, 1115 (5th Cir.
1993), cert. denied, 114 S. Ct. 2180 (1994); United States
v.Jimenez Lopez, 873 F.2d 769, 771 (5th Cir. 1989).
3
the audio tape recording and transcript of the conversation between
him and Wilson in April 1993. Over the defendant's objection, the
district court admitted not only the statements of the defendant,
but also the statements of Wilson, who was unavailable to testify
at trial. The defendant objected to the statements of the
informant as hearsay, and on appeal the defendant argues that the
admission of the tape and transcript violated his Sixth Amendment
right to confront the witnesses against him.
As authority for the admission of the tape into evidence,
the government relies on case law from the Second Circuit Court of
Appeals which allows for admission of statements of an unavailable
witness not for the truth of the matters asserted, but to establish
a context for the recorded statements of the accused.2 The United
States maintains that the district court correctly admitted into
evidence the audio tape because the United States offered the
statements of Wilson only to place the statements of the defendant
in the proper context. We agree that the district court did not
abuse its discretion in admitting into evidence the recorded
statements of Wilson, an unavailable witness.
The confrontation clause of the Sixth Amendment
guarantees criminal defendants the right to confront the witnesses
against them. The right to confront witnesses includes the right
to cross-examine witnesses who testify against a defendant at
2
United States v. Murray, 618 F.2d 892, 900 (2d Cir.
1980).
4
trial.3 Hearsay evidence is inadmissible under the confrontation
clause unless it can be shown that the declarant is unavailable to
testify and that the hearsay evidence is supported by adequate
indicia of reliability.4
In United States v. Murray,5 the Second Circuit Court of
Appeals found that the confrontation clause was not offended when
an audio tape recording of an unavailable witness was admitted into
evidence for the limited purpose of placing the defendant's
statements in the proper context. The court concluded that when
the unavailable witness's statements are part of a "reciprocal and
integrated" conversation with the defendant, admission of an audio
tape of their conversation for the limited purpose of providing a
context for the defendant's statements does not violate the
defendant's Sixth Amendment right "to be confronted with the
witnesses against him".6
In this case, Wilson's statements were part of a
reciprocal and integrated conversation the agent had with the
defendant. The district court instructed the jury that Wilson's
statements were hearsay and twice admonished the jury to consider
the statements of Wilson only to provide context for the statements
of the defendant and not for the truth of the matters Wilson
3
Pace, 10 F.3d at 1113; Smith v. Illinois, 390 U.S.
129, 131 (1968).
4
Idaho v. Wright, 497 U.S. 805, 814-17 (1990).
5
618 F.2d 892 (2d Cir. 1980).
6
Id. at 900.
5
asserted. Further, the United States offered indicia of the audio
recording's reliability. There was no question of the identity of
the speakers on the audio tape. Charles DeLaughter, an officer
with the Jefferson Parish Sheriff's Office, testified at trial that
while the audio tape was being recorded on April 17, 1993, he was
in the immediate area, he watched the defendant and Wilson meet,
and he simultaneously listened to the conversation as the tape was
being recorded. We hold that in these circumstances, the admission
of the evidence did not offend the defendant's Sixth Amendment
right to confront the witnesses against him and that the district
court did not err in admitting into evidence the audio tape.
Cheramie's second argument on appeal contends that the
district court abused its discretion in allowing DEA informant
Curtis Roberts to testify that Cheramie sold cocaine to him on
previous occasions. Cheramie contends that because the sales were
of relatively small quantities and had occurred long before trial,
testimonial evidence of the sales is inadmissible.
Rule 404(b) of the Federal Rules of Evidence governs the
admissibility of evidence of prior wrongful acts.7 In United
7
Rule 404(b) provides in part:
Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
person in order to show that he acted in
conformity therewith. It may, however, be
admissible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan knowledge, identity, or absence of
mistake or accident . . . .
6
States v. Beecham,8 this Court outlined a two-step test to
determine the admissibility of evidence of a defendant's prior
wrongful acts. Under Beecham, evidence of extrinsic offenses is
admissible if it is (1) relevant to an issue other than the
defendant's character, and (2) the incremental probative value of
the evidence is not substantially outweighed by the danger of
unfair prejudice to the defendant.9
Curtis Robert's testimony of prior cocaine sales by the
defendant was admissible under the Beecham test. First, the
evidence of Cheramie's prior sales of cocaine was relevant to
issues other than his character; the evidence was relevant to prove
his knowledge and intent. Second, the highly probative value of
this evidence was not substantially outweighed by the danger of
unfair prejudice, and we cannot say that the district court abused
its discretion in admitting into evidence Curtis Robert's
testimony.
B
The defendant's third argument on appeal challenges the
sufficiency of the evidence to support his conviction. The
standard for reviewing a conviction based on allegedly insufficient
evidence is whether a reasonable jury could find that the evidence
establishes the guilt of the defendant beyond a reasonable doubt.10
8
582 F.2d 898 (5th Cir. 1978) (en banc) cert. denied,
440 U.S. 920 (1979).
9
Id. at 911.
10
United States v. Pennington, 20 F.3d 593, 597 (5th
Cir. 1994) (citing United States v. Sanchez, 961 F.2d 1169, 1173
7
After the jury returned a guilty verdict, Cheramie moved
for judgment of acquittal in accordance with Rule 29 of the Federal
Rules of Criminal Procedure, contending that the government failed
to establish beyond a reasonable doubt that he knowingly took
possession of a gym bag containing two kilograms of cocaine on May
4, 1993, outside the Quality Inn in Harvey, Louisiana. Cheramie
did not secure the gym bag Garza gave to him that night; instead,
he left the bag on the flatbed of his truck. Cheramie contends
that his failure to secure a bag containing thousands of dollars
worth of cocaine demonstrates that he did not know what was in the
bag.
We are not convinced of Cheramie's ignorance. In the
light of the uncontroverted testimony of Garza, the evidence of
Cheramie's meetings with both Garza and Wilson, and Cheramie's own
statement admitting that he received cocaine, we conclude that a
reasonable jury could have found beyond a reasonable doubt that
Cheramie knowingly took possession of a bag containing cocaine, and
that sufficient evidence supports his conviction.
C
The defendant's final argument on appeal contends that
the district court erred in sentencing him as a career offender
under § 4B1.1 of the Sentencing Guidelines. We review de novo the
district court's application of the Sentencing Guidelines,11 and we
(5th Cir.), cert. denied, 113 S. Ct. 330 (1992)).
11
United States v. Palmer, 31 F.3d 259, 261 (5th Cir.
1994).
8
review the authority of the Sentencing Commission to make a
particular guideline determination as an issue of statutory
construction.12
The career offender provision of the Sentencing
Guidelines, § 4B1.1, provides in part:
A defendant is a career offender if (1) the
defendant was at least eighteen years old at
the time of the instant offense, (2) the
instant offense of conviction is a felony that
is either a crime of violence or a controlled
substance offense, and (3) the defendant has
at least two prior felony convictions of
either a crime of violence or a controlled
substance offense.13
Subsection (2) of § 4B1.1 refers to the "triggering" offense, the
instant offense of conviction, the offense for which the defendant
is to be sentenced. Subsection (3) refers to prior offenses of
which the defendant has been convicted that serve as a predicate
for the application of the career offender guideline.
The source of authority for § 4B1.1 is 28 U.S.C. §
994(h).14 Section 994(h) directs the Sentencing Commission to
create guidelines specifying a sentence of imprisonment at or near
the maximum authorized term for a defendant who is a "career"
offender. The section defines a "career" offender as a defendant
18 years or older who:
(1) has been convicted of a felony that is--
12
United States v. White, 869 F.2d 822, 827 (5th Cir.
1988), cert. denied, 490 U.S. 1112 (1989).
13
U.S.S.G. § 4B1.1 (1993).
14
United States v. Bellazerius, 24 F.3d 698, 700 (5th
Cir.), cert. denied, 115 S. Ct. 375 (1994).
9
(A) a crime of violence; or
(B) an offense described in section 401 of the
Controlled Substances Act (21 U.S.C. 841), sections 1002(a), 1005,
and 1009 of the Controlled Substances Import and Export Act (21
U.S.C. 952(a), 955, and 959), and section 1 of the Act of September
15, 1980 (21 U.S.C. 955a); and
(2) has previously been convicted of two or more prior
felonies, each of which is--
(A) a crime of violence; or
(B) an offense described in section 401 of the
Controlled Substances Act (21 U.S.C. 841), sections 1002(a), 1005,
and 1009 of the Controlled Substances Import and Export Act (21
U.S.C. 952(a), 955, and 959), and section 1 of the Act of September
15, 1980 (21 U.S.C. 955a).15
In this case, the defendant was sentenced as a career
offender. His instant offense, possession with the intent to
distribute cocaine, qualifies as a triggering offense under 28
U.S.C. 994(h)(1)(B) and under § 4B1.1. The issue in this case is
whether the defendant's two prior convictions for conspiracy to
possess marijuana with the intent to distribute qualify as "prior
offenses" for purposes of the career offender guideline. The
defendant argues that under United States v. Bellazerius,16
conspiracy offenses are not included within the ambit of § 4B1.1,
15
28 U.S.C. § 994(h) (1993).
16
24 F.3d 698 (5th Cir.), cert. denied, 115 S. Ct. 375
(1994). But see United States v. Fiore, 983 F.2d 1 (1st Cir.
1992), cert. denied, 113 S. Ct. 1830 (1993).
10
and that the district court therefore erred in enhancing his
sentence in accordance with the career offender guideline. We
agree.
In Bellazerius, this Court held that the Sentencing
Commission exceeded its statutory authority by including
conspiracies to commit controlled substance offenses within the
ambit of § 4B1.1, because the statute authorizing the career
offender provision, § 994(h), does not list conspiracy offenses in
its definition of the offenses that trigger career offender
enhancement.17 We concluded that "because the Commission
promulgated section 4B1.1 under the authority of 28 U.S.C. §
994(h), it is invalid to the extent that its scope exceeds the
reach of that section of the statute".18 Accordingly, we held that
a conviction of conspiracy to violate the narcotics laws does not
constitute an offense that triggers career offender enhancement
under § 4B1.1.19
In this case, we conclude that the district court erred
in sentencing Cheramie as a career offender under § 4B1.1.
Although Cheramie's conviction for possession with the intent to
distribute cocaine is a triggering offense, Cheramie's two prior
convictions for conspiracy to possess marijuana do not constitute
prior convictions under § 4B1.1. Bellazerius holds that the
Sentencing Commission exceeded its authority in including
17
Id. at 700-01.
18
Id.
19
Id. at 701.
11
conspiracy offenses within the ambit of § 4B1.1 and that conspiracy
offenses cannot serve as triggering offenses. Section 994(h)
defines triggering offenses and prior offenses in precisely the
same language, and conspiracy offenses are not included in that
definition. Under Bellazerius, conspiracy convictions cannot serve
as offenses that trigger § 4B1.1, nor can they serve as prior
offenses. Accordingly, we VACATE the defendant's sentence and
REMAND for resentencing.
12