United States v. Cheramie

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.

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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).

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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.

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