IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 96-60277
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
DWIGHT DIXON; STANLEY KNOX,
Defendants-Appellants.
_________________________
Appeals from the United States District Court
for the Northern District of Mississippi
_________________________
December 29, 1997
Before MAGILL,* SMITH, and DeMOSS, Circuit Judges.
MAGILL, Circuit Judge:
Appellants Stanley Knox and Dwight Dixon were convicted of
various federal offenses related to their participation in a drug
trafficking conspiracy. Appellants appeal their convictions and
sentences, raising a torrent of legal challenges. We vacate Knox's
conviction for conspiracy and affirm the district court in all
other respects.
I.
*
Circuit Judge of the United States Court of Appeals for the Eighth Circuit,
sitting by designation.
Between 1992 and 1995, appellant Stanley Knox operated a large
cocaine distribution organization in Tippah County, Mississippi.
Knox's organization consisted of over nine members who worked under
Knox's direction to obtain, transport, and distribute crack and
powder cocaine. Knox used his own residence as the distribution
center and headquarters for the organization. Knox employed
several dealers, including appellant Dwight Dixon, to sell crack
cocaine from Knox's house and to deliver crack cocaine to customers
at other locations. Knox and his dealers sold crack cocaine
twenty-four hours per day, seven days per week.
Knox arranged, participated in, and directed several trips to
pick up cocaine from Memphis and Nashville, Tennessee, for
distribution in Tippah County. These trips were taken several
times per week, and sometimes every other day, and Knox's
organization garnered between two and three ounces of cocaine on
each trip. If Knox or his runners obtained powder cocaine on a
trip, then Knox would supervise cooking the powder cocaine into
crack cocaine for future sale. Knox, himself, made at least four
trips to Nashville and picked up between six and nine ounces of
cocaine on each trip. Dixon made at least one trip with Knox to
Memphis to pick up two ounces of cocaine. In July 1994 two of
Knox's runners, Mitchell Knox (Mitchell) and Barry Cook, were
arrested while returning from Memphis after obtaining three ounces
of cocaine for Knox. At the time, Cook and Mitchell were driving
Knox's white Mercedes, which displayed a license plate for a
different vehicle registered to Dixon.
2
Local, state, and federal authorities investigated Knox's and
Dixon's activities by using undercover agents and informers. The
agents and informers made numerous controlled drug buys directly
from either Knox, Dixon, or other members of Knox's organization.
Most of the controlled drug buys were performed at Knox's house,
although some were performed at other locations in accordance with
Knox's directions.
On June 22, 1995, a grand jury issued a twenty-three count
indictment against ten defendants for various drug and firearm
violations. Dixon was charged with one count of conspiracy to
possess with intent to distribute cocaine base between 1991 and
1995, in violation of 21 U.S.C. § 846. Knox, in addition to being
charged with the conspiracy count, was charged with one count of
unlawfully engaging in a continuing criminal enterprise (CCE) from
1992 to March 1995, in violation of 21 U.S.C. § 848. Knox also was
charged with eight counts of possessing with intent to distribute
cocaine base, in violation of 21 U.S.C. § 841,1 two counts of using
and carrying firearms in relation to drug trafficking, in violation
of 18 U.S.C. § 924(c),2 ten counts of using the telephone to
facilitate the commission of a felony under 21 U.S.C. § 841, in
violation of 21 U.S.C. § 843,3 and one count of attempted
possession of cocaine, in violation of 21 U.S.C. §§ 841 and 846.
After Knox and Dixon's indicted codefendants entered plea
1
The government dismissed three of these counts during trial.
2
The government dismissed these counts during trial.
3
The government dismissed one of these counts during trial.
3
bargains with the government, the government proceeded to trial
against Knox and Dixon. The government dismissed several counts
against Knox during trial, and the jury ultimately returned
verdicts of guilty against both Knox and Dixon on all remaining
counts. The district court sentenced Knox to life imprisonment4
and sentenced Dixon to 240 months imprisonment. Knox and Dixon
raise numerous issues on appeal concerning both their convictions
and their sentences.
II. DOUBLE JEOPARDY
Knox contends that his convictions for both participating in
a drug conspiracy and engaging in a CCE violate the Double Jeopardy
Clause of the Fifth Amendment. We review Knox's double jeopardy
claim de novo. See United States v. Fields, 72 F.3d 1200, 1209
(5th Cir.), cert. denied, 117 S. Ct. 48 (1996).
Count one of the indictment charged Knox with participating in
a drug conspiracy under 21 U.S.C. § 846 and alleged that the
conspiracy existed from 1991 through 1995. Count two of the
indictment charged Knox with engaging in a CCE under 21 U.S.C.
§ 848 and alleged that the CCE existed from 1992 through 1995. The
jury convicted Knox on both counts, but the district court only
imposed sentence on Knox for his CCE conviction.
As the government concedes, a conviction under both the
4
Knox was sentenced to life imprisonment on the CCE count, and he received
concurrent sentences of various terms on his remaining convictions. The district
court initially also sentenced Knox to a concurrent 240-month sentence for the
conspiracy count, but specifically rescinded the sentence because the conspiracy
was a lesser included offense of the CCE.
4
conspiracy and the CCE statutes is unconstitutional where the
alleged CCE is the same enterprise as the conspiracy. See Rutledge
v. United States, 116 S. Ct. 1241, 1247 (1996); Fields, 72 F.3d at
1209-10. Because we agree that the alleged CCE is the same
enterprise as the conspiracy, this Court vacates Knox's conviction
for drug conspiracy under count one of the indictment.5 See
Fields, 72 F.3d at 1209-10 (vacating drug conspiracy conviction
when defendant unconstitutionally convicted of both drug conspiracy
and engaging in a CCE).
Despite vacating Knox's drug conspiracy conviction, it is not
necessary to remand this case for resentencing. Where it is clear
that the drug conspiracy conviction did not lead the district court
to impose a harsher sentence on Knox for engaging in a CCE than it
would have in the absence of the drug conspiracy conviction, there
is no need to remand for resentencing. See id. at 1210. Here,
Knox has not even been sentenced for the conspiracy conviction.
Clearly, the conspiracy conviction did not affect Knox's sentence
for the CCE conviction.
III. EVIDENTIARY ISSUES
"Evaluating the admissibility of evidence is a matter within
the sound discretion of the district court." United States v.
5
Knox contends that his CCE conviction should also be vacated because
evidence introduced to prove Knox's participation in the conspiracy was
irrelevant to Knox's engagement in the CCE and was extremely prejudicial to Knox.
This contention is absurd. Evidence relevant to proving Knox's participation in
the conspiracy clearly is relevant to proving Knox's engagement in the CCE
because the conspiracy, as a lesser included offense of the CCE, comprises the
same enterprise as the CCE. See United States v. Fields, 72 F.3d 1200, 1209-10
(5th Cir.), cert. denied, 117 S. Ct. 48 (1996).
5
Sparks, 2 F.3d 574, 582 (5th Cir. 1993). Accordingly, when a
defendant properly objects to the admission of evidence, the
district court's decision to admit such evidence is reviewed for an
abuse of discretion. See, e.g., United States v. Bermea, 30 F.3d
1539, 1574 (5th Cir. 1994); Wilson v. Zapata Off-Shore Co., 939
F.2d 260, 272 (5th Cir. 1991).
A. Knox's Possession of Firearms
Knox contends that the district court abused its discretion in
allowing the government to introduce evidence that he possessed
firearms. This Circuit has explicitly "recognized that firearms
are 'tools of the trade' of those engaged in illegal drug
activities and are highly probative in proving criminal intent."
United States v. Martinez, 808 F.2d 1050, 1057 (5th Cir. 1987); see
also United States v. Beverly, 921 F.2d 559, 562 (5th Cir. 1991)
("[t]here is also no doubt that firearms are drug traffickers'
tools of trade"). Accordingly, we find that the district court did
not abuse its discretion in admitting this evidence.
B. Exhibit 26--Bag of Crack Cocaine
Knox also contends that the district court abused its
discretion in admitting a bag of crack cocaine--exhibit 26--because
the government failed to establish the chain of custody with
respect to the bag. Two government witnesses, Captain Eddie
McCullough and Agent Jeff Palmer, each testified that they
delivered the bag of cocaine directly to the crime lab. Palmer
6
testified that McCullough delivered the bag directly to Palmer, and
that McCullough was mistaken when he testified that he delivered
the bag directly to the crime lab. Knox contends that this
contradictory testimony renders the bag of cocaine inadmissible.
We disagree.
As this Circuit has explained, a "break in the chain of
custody simply goes to the weight of the evidence, not its
admissibility." Sparks, 2 F.3d at 582; see also Bermea, 30 F.3d at
1574. Accordingly, even if the apparent contradiction between
Palmer's and McCullough's testimonies supports an inference of a
break in the chain of custody--a proposition we doubt--the district
court did not abuse its discretion in admitting the bag of
cocaine.6
C. Exhibit 31--Tire Town, Inc.'s Business Records
Both Knox and Dixon contend that the district court abused its
discretion in admitting pager-rental records of Tire Town, Inc.
During cross-examination, Tire Town's owner conceded that he did
not personally create the records and that he did not personally
know whether the records were true or accurate. Tire Town's owner
6
Knox also argues that the district court abused its discretion by
admitting exhibit 32--a different bag of cocaine confiscated from Knox--because
of a break in the chain of custody. Knox relies on the admission by two
witnesses in the chain of custody that they never initialed the bag of cocaine
and thus could not be one hundred percent positive that the substance in the bag
was, in fact, the substance confiscated from Knox. Each witness did, however,
testify from whom they received the bag and to whom they provided the bag, and
established their respective links in the chain of custody. Accordingly, the
lack of initials does not render the bag of cocaine inadmissible. See United
States v. Sparks, 2 F.3d 574, 581-82 (5th Cir. 1993) (district court did not
abuse discretion by admitting into evidence two bottles of crack despite
officer's testimony that he never initialed the bottles).
7
did, however, substantiate that the records were business records
within the definition of Federal Rule of Evidence 803(6) and
testified that he relied on the accuracy of these records in the
ordinary course of business. This Court has held that
[a]ny person in a position to attest to the authenticity
of certain records is competent to lay the foundation for
the admissibility of the records; he need not have been
the preparer of the record, nor must he personally attest
to the accuracy of the information contained in the
records.
Rosenberg v. Collins, 624 F.2d 659, 665 (5th Cir. 1980).
Accordingly, the district court did not abuse its discretion in
admitting Tire Town's business records. See Bermea, 30 F.3d at
1574 (holding that the district court not abuse its discretion by
admitting records under Fed. R. Evid. 803(6) even though the
custodian of records admitted "that she did not know whether the
records had been maintained in their original form or altered in
any way"); Wilson, 939 F.2d at 272 (holding that the district court
did not abuse its discretion by admitting records under Fed. R.
Evid. 803(6) despite the custodian of records's failure to testify
that the records were accurate).
D. Tape Recorded Conversations Between Knox and Myrtle Bennett
Both Knox and Dixon contend that the district court abused its
discretion in admitting tape recordings made of telephone calls
between Knox and Myrtle Bennett, a previously cooperative
government informant, while arranging a controlled drug sale.
Appellants argue that the tape recorded conversations are
inadmissible hearsay and, because Bennett refused to testify during
8
trial, that the district court's admission of the tape recordings
violated their Sixth Amendment right to confront Bennett. We
disagree.
We first point out that neither Knox's nor Bennett's recorded
statements are inadmissible hearsay. Knox's recorded statements
are not hearsay because they constitute party admissions under
Federal Rule of Evidence 801(d)(2)(A). See United States v.
Cheramie, 51 F.3d 538, 541 (5th Cir. 1995); United States v.
Gutierrez-Chavez, 842 F.2d 77, 81 (5th Cir. 1988). Bennett's
recorded statements, rather than offered to prove their truth, are
admissible to prove that they were uttered, and thus do not
constitute hearsay.7 See Gutierrez-Chavez, 842 F.2d at 81.
With respect to appellants' Sixth Amendment concerns, this
Court recently held that tape recordings made of conversations
between an unavailable informant8 and a defendant are admissible
and do not violate the Sixth Amendment confrontation clause if the
tapes are supported by adequate indicia of reliability. See
Cheramie, 51 F.3d at 540-41; Gutierrez-Chavez, 842 F.2d at 81. In
this case, the government provided adequate indicia of each
recording's reliability. First, Agent Rod Waller was present while
the conversations between Bennett and Knox occurred. Second,
7
Even if Bennett's recorded statements are hearsay, they are admissible
to put Knox's statements into context. See United States v. Cheramie, 51 F.3d
538, 541 (5th Cir. 1995); United States v. Gutierrez-Chavez, 842 F.2d 77, 81 (5th
Cir. 1988).
8
Because Bennett refused to testify on the basis of the Fifth Amendment,
she became "unavailable" within the definition of Federal Rule of Evidence
804(a).
9
Waller was the person who dialed Knox's phone number for each
recorded phone call. Third, Waller testified that each recording
contained the same statements that Bennett asserted during the
respective telephone conversations. Fourth, Waller identified
Knox's voice as the voice engaging in dialogue with Bennett during
the recorded telephone conversations. Fifth, a controlled drug
deal occurred in accordance with instructions provided by Knox to
Bennett during one of the recorded phone conversations. Under
these circumstances, we hold that the recordings are supported by
adequate indicia of reliability, see Cheramie, 51 F.3d at 541
(listing factors supporting a finding of adequate indicia of
reliability), and that the district court did not abuse its
discretion in admitting the tapes into evidence.
E. Drug Sale and Tape Recorded Conversation Between Dixon and
Dennis Roberson
Dixon also contends that the district court abused its
discretion in admitting evidence of a drug sale between Dixon and
Dennis Roberson, a government confidential informant, and in
admitting a tape recording of the conversation between Dixon and
Roberson during the drug sale. Dixon argues on appeal that the
government failed to prove that the drug sale was relevant to his
participation in the drug conspiracy, and thus inadmissible, and
that the tape recording constitutes inadmissible hearsay. We
disagree.
Whether Dixon's sale of drugs to Roberson was an act in
10
furtherance of the conspiracy charged in the indictment, rather
than an independent drug sale, is a question of fact for the jury.
See United States v. Morgan, 117 F.3d 849, 858 (5th Cir.) (holding
that "[w]hether the evidence shows one or multiple conspiracies is
a question of fact for the jury"), cert. denied, 66 U.S.L.W. 3355
(U.S. Nov. 17, 1997) (No. 97-6370). The district court did not
abuse its discretion in admitting evidence of Dixon's drug sale to
Roberson.
With respect to the tape recording's admissibility, Dixon's
recorded statements are admissible as a party admission under
Federal Rule of Evidence 801(d)(2)(A), and Roberson's recorded
statements, even if considered hearsay, are admissible to put
Dixon's statements into context. See Cheramie, 51 F.3d at 541;
Gutierrez-Chavez, 842 F.2d at 81. Accordingly, the district court
did not abuse its discretion by admitting the tape recording.
IV. APPELLANTS' BRADY CLAIM
Knox and Dixon both contend that the government violated Brady
v. Maryland, 373 U.S. 83 (1963), by failing to produce Knox's
financial records and car titles, which the government seized while
executing a search warrant. Knox argues that such evidence would
have helped him contest the government's allegation that Knox
derived substantial income from the sale of drugs, which is an
essential element of his CCE conviction. Dixon argues that such
evidence would have demonstrated his legitimate ownership of a
Suzuki Samurai Sidekick and that he would thus be exonerated.
11
This Court reviews the district court's Brady determination de
novo. See United States v. Green, 46 F.3d 461, 464 (5th Cir.
1995). To establish a due process violation under Brady, a
defendant must show that: (1) evidence was suppressed; (2) the
suppressed evidence was favorable to the defense; and (3) the
suppressed evidence was material either to guilt or to punishment.
See Brady, 373 U.S. at 87; United States v. Aubin, 87 F.3d 141, 148
(5th Cir. 1996), cert. denied, 117 S. Ct. 965 (1997). However,
Brady does not obligate the government "to produce for [a
defendant] evidence or information already known to him, or that he
could have obtained from other sources by exercising reasonable
diligence." Brown v. Cain, 104 F.3d 744, 750 (5th Cir.), cert.
denied, 117 S. Ct. 1489 (1997). Accordingly, to prevail in their
Brady claim, Knox and Dixon must show that the allegedly suppressed
information was not available to them through due diligence. See
Aubin, 87 F.3d at 149.
Neither Knox nor Dixon has demonstrated that the information
contained in Knox's financial records and car titles was not
available to him through his own due diligence.9 Knox asserts that
the seized evidence contained information about the income he
received from buying and selling used cars. This is information
about which Knox should have known, and Knox has not shown that
this information was not available to him through due diligence.
Dixon asserts that the suppressed evidence contained information
9
Neither Knox nor Dixon even argues that he could not have obtained the
information through his own due diligence.
12
about his ownership of the Suzuki. As with Knox, this is
information about which Dixon should have known, and Dixon has not
shown that this information was not available to him through due
diligence. Accordingly, the government did not violate Brady.
V. SUFFICIENCY OF THE EVIDENCE
When reviewing a claim for insufficiency of the evidence, this
Court must determine whether, based on the totality of the evidence
presented at trial, a rational jury could have found that the
government proved the essential elements of the crimes charged
beyond a reasonable doubt. See United States v. Davis, 61 F.3d
291, 296 (5th Cir. 1995). While making this determination, this
Court must consider the evidence in the light most favorable to the
government, including all reasonable inferences that may be drawn
therefrom. See United States v. Bermea, 30 F.3d 1539, 1551 (5th
Cir. 1994).
A. The CCE Conviction
Knox challenges the sufficiency of the evidence to support his
CCE conviction. A person engages in a CCE if:
(1) he violates any provision of [title 21] the
punishment for which is a felony, and
(2) such violation is part of a continuing series of
violations of [title 21] --
(A) which are undertaken by such persons in
concert with five or more other persons with
respect to whom such person occupies a
position of organizer, a supervisory position,
or any other position of management, and
13
(B) from which such person obtains substantial
income or resources.
21 U.S.C. § 848(c).
The testimony at trial established that Knox was the leader of
a large crack and powder cocaine distribution conspiracy that
operated between 1992 and 1995, employed more than five people at
any given time, and made significant sums of money from the
conspiracy. While much of the testimony implicating Knox was from
coconspirators who accepted plea bargains from the government,
"[i]t is well-settled that credibility determinations are the sole
province of the jury." Davis, 61 F.3d at 297. Indeed, "'[a]
conviction may rest solely on the uncorroborated testimony of one
accomplice if the testimony is not insubstantial on its face.'"
Id. (quoting United States v. Gibson, 55 F.3d 173, 181 (5th Cir.
1995)). In this case, each of the witnesses testified to numerous
drug runs and drug deals. Moreover, much of the testimony was
corroborated by undercover agents, government informants, and taped
telephone conversations. The bountiful evidence describing Knox's
role in the conspiracy and the substantial income he derived
therefrom was sufficient to support his CCE conviction.
B. Use of a Communication Facility
Knox also challenges the sufficiency of the evidence to
support two of his convictions under 21 U.S.C. § 843(b) for using
a communication facility to facilitate the attempted distribution
of cocaine. Knox contends that his convictions under counts
twenty-two and twenty-three are improper because no drug
14
transactions occurred as a result of either of the predicate act
telephone calls. We disagree.
To secure a conviction under 21 U.S.C. § 843(b), the
government must establish that the defendant knowingly and
intentionally used a telephone to facilitate the commission of a
narcotics offense. See United States v. Gonzalez-Rodriguez, 966
F.2d 918, 921 (5th Cir. 1992).
In order to establish the facilitation element, the
Government must show that the telephone call comes within
the common meaning of facilitate--to make easier or less
difficult, or to assist or aid. It is sufficient if a
defendant's use of a telephone to facilitate the
possession or distribution of controlled substances
facilitates either his own or another person's possession
or distribution.
Id. (quotations and citations omitted). Because counts twenty-two
and twenty-three of the indictment specifically charge Knox with
using a communication facility to facilitate the "attempted
distribution" of cocaine, the government only is required to
establish that Knox used the telephone to facilitate an attempt to
distribute drugs. See United States v. Rey, 641 F.2d 222, 224 n.6
(5th Cir. Unit A Mar. 1981) ("[w]hen the underlying offense is an
inchoate one such as attempt or conspiracy, then the attempt or
conspiracy is all that must be shown . . . , and it is not
necessary to show completion of the objective of that inchoate
crime").
In this case, we conclude that the evidence is sufficient to
support Knox's convictions under both counts twenty-two and twenty-
three. During the first telephone call on February 10, 1995 (count
twenty-two), Wanda Henry, a government witness, asked Knox to sell
15
her some drugs. To complete the sale, Knox directed Henry to meet
him at a store at which he sold her drugs on the previous day.
Knox subsequently met Henry at the store, but did not sell her any
drugs. Rather, and because he was concerned that he was being
followed, Knox directed Henry to page him twenty minutes after
leaving the store. Henry subsequently left the store and paged
Knox approximately twenty minutes later. Knox responded to the
page (count twenty-three) and directed Henry to meet him at a Wal-
Mart to complete the sale. Knox, however, never showed up at the
Wal-Mart. This evidence is sufficient for a reasonable jury to
determine that Knox twice attempted to sell drugs to Henry, and
that Knox used the telephone to facilitate each attempt.
C. The Drug Conspiracy Conviction
Dixon challenges the sufficiency of the evidence to support
his drug conspiracy conviction. To support a drug conspiracy
conviction, the government must establish "(1) the existence of an
agreement between two or more persons to violate narcotics law; (2)
the defendant's knowledge of the agreement; and (3) the defendant's
voluntary participation in the agreement." United States v.
Gonzalez, 76 F.3d 1339, 1346 (5th Cir. 1996). "A jury may infer
the elements of a conspiracy conviction from circumstantial
evidence: An agreement to violate narcotics laws may be inferred
from concert of action. Knowledge of the conspiracy may be
inferred from a collection of circumstances." United States v.
Leal, 74 F.3d 600, 606 (5th Cir. 1996) (quotations and citations
16
omitted). In addition, "[a]lthough mere presence at the scene of
the crime or close association with a coconspirator will not
support an inference of participation in a conspiracy, a
defendant's voluntary participation may be inferred from a
development and a collocation of circumstances." United States v.
Vergara, 687 F.2d 57, 61 (5th Cir. 1982) (quotations and citations
omitted).
In this case, there is abundant evidence supporting the
existence of a drug conspiracy. The case also teems with evidence
showing that Dixon knew of and voluntarily participated in the
conspiracy. Several witnesses10 testified that Dixon worked in
Knox's organization, buying, delivering, and selling crack and
powder cocaine. For example, Scott Riddle, one of Knox's cousins
and drug sellers, testified that Dixon sold crack cocaine at Knox's
house and that Dixon made trips to pick up cocaine for Knox.
Rhonda Simmons, a coconspirator, testified that Dixon delivered
crack cocaine for Knox. James Rutherford testified that he had
dealt with Dixon when purchasing crack cocaine at Knox's house.
Virginia Cowan testified that she bought crack cocaine from Dixon
at Knox's house. Diane Graham, whose husband bought and sold drugs
for Knox, testified that Dixon worked for Knox. In addition, Knox
10
Dixon argues that many of the witnesses who testified against him were
coconspirators who received plea bargains, whose testimony was not credible, and
some of whose testimony was not corroborated by non-coconspirators. As explained
above, however, "[i]t is well-settled that credibility determinations are the
sole province of the jury." United States v. Davis, 61 F.3d 291, 297 (5th Cir.
1995). Accordingly, "non-credibility is generally not a sound basis for alleging
insufficiency of the evidence; it is the jury's function to determine
credibility." United States v. Payne, 99 F.3d 1273, 1278 (5th Cir. 1996)
(quotations and citations omitted).
17
provided a pager to Dixon, and Dixon's license plate was affixed to
Knox's car when two of Knox's drug runners were arrested.
Furthermore, Dixon traveled with Knox on at least one occasion to
Mississippi to pick up several ounces of cocaine. This evidence is
sufficient to support Dixon's conspiracy conviction.
VI. SENTENCING ISSUES
Knox and Dixon appeal the sentences imposed by the district
court under the United States Sentencing Guidelines. This Court
reviews the district court's application of the Sentencing
Guidelines de novo and the district court's factual findings for
clear error. See United States v. West, 58 F.3d 133, 137 (5th Cir.
1995). "A factual finding is not clearly erroneous as long as it
is plausible in light of the record as a whole." United States v.
Thomas, 12 F.3d 1350, 1368 (5th Cir. 1994) (quotations and
citations omitted).
A. Firearm Enhancement
Knox and Dixon both contend that the district court's two-
level enhancement for possession or use of a dangerous weapon,
under U.S.S.G. § 2D1.1(b)(1), was clearly erroneous. The
enhancement is appropriate if a firearm "was possessed during the
course of manufacturing, importing, exporting, or trafficking in
narcotics, including attempting or conspiring to do so." United
States v. Gaytan, 74 F.3d 545, 559 (5th Cir.), cert. denied, 117 S.
Ct. 77, and cert. denied, 117 S. Ct. 506 (1996). The district
18
court's decision to enhance the sentence level for firearms is a
factual determination reviewed for clear error, see United States
v. Brown, 985 F.2d 766, 769 (5th Cir. 1993), and may be supported
by "any relevant evidence that has sufficient indicia of
reliability to support its probable accuracy." United States v.
Buchanan, 70 F.3d 818, 828 (5th Cir. 1995) (quotations and
citations omitted). However, the applicability of the enhancement
must be proved by a preponderance of the evidence. United States
v. Devine, 934 F.2d 1325, 1339 (5th Cir. 1991).
In this case, the evidence clearly indicates that Knox
possessed firearms during the course of the CCE. Virginia Crum,
Knox's former girlfriend, testified that Knox traveled to Memphis
two to three times each week to pick up cocaine and that Knox
carried a gun on nearly every trip. In addition, both Larry Cox,
one of Knox's coconspirators, and Diane Graham, the wife of one of
Knox's coconspirators, testified that guns were kept at Knox's
house. Furthermore, Mike Edlemon, a government investigator,
testified that he saw firearms carried by Knox's coconspirators
while they were selling drugs to customers in Knox's driveway.
The evidence also clearly indicates that the district court
did not err in enhancing Dixon's sentence under U.S.S.G.
§ 2D1.1(b)(1). A defendant's sentence may properly be enhanced
under U.S.S.G. § 2D1.1(b)(1) if the possession of a firearm by one
of his coconspirators was reasonably foreseeable. See Gaytan, 74
F.3d at 559. This Court has explained that "[o]rdinarily, one co-
conspirator's use of a firearm will be foreseeable because firearms
19
are 'tools of the trade' in drug conspiracies." United States v.
Mergerson, 4 F.3d 337, 350 (5th Cir. 1993) (citation omitted). In
this case, the evidence demonstrates that Dixon distributed drugs
at Knox's house, and that firearms were kept and carried in Knox's
house in connection with drug activities. In addition, Dixon
traveled to Memphis with Knox on at least one occasion to pick up
drugs, and Knox carried firearms on nearly every trip to Memphis.
B. Constitutionality of 21 U.S.C. § 860(a)
Knox argues that 21 U.S.C. § 860(a) is an unconstitutional
extension of Congress's regulatory powers under the Commerce
Clause, and that his convictions under § 860(a) should thus be
vacated. This Court, however, has already rejected this argument.
See United States v. Clark, 67 F.3d 1154, 1165-66 (5th Cir. 1995),
vacated in part on other grounds sub nom. Coffman v. United States,
117 S. Ct. 40 (1996); see also United States v. Allen, 106 F.3d
695, 701 (6th Cir.) (agreeing with Clark that 21 U.S.C. § 860 is
within Congress's commerce power), cert. denied, 117 S. Ct. 2467
(1997); United States v. Lopez, 2 F.3d 1342, 1366 n.50 (5th Cir.
1993) (indicating that 21 U.S.C. § 860 is based on the "federal
authority over intrastate as well as interstate narcotics
trafficking"), aff'd, 514 U.S. 549 (1995).
VII. OTHER ISSUES
Knox and Dixon raise numerous other issues in this appeal.
Knox contends that the district court erred by (1) quashing his
20
subpoena to Probation Officer Darrell Doss, (2) limiting his cross-
examination of Barry Cook and Barry Cox, (3) seating Peggy Dudley
as a juror, (4) refusing to give one of Knox's proposed jury
instructions, (5) merging jury instructions for different counts of
the indictment, (6) refusing to grant a mistrial because Myrtle
Bennett pleaded the Fifth Amendment while on the witness stand, (7)
refusing to grant a mistrial because of the government's
introduction of improper and prejudicial evidence, (8) refusing to
grant Knox's motion for a new trial, (9) refusing to grant Knox's
motion to suppress evidence concerning his possession of firearms,
(10) admitting various testimony, (11) refusing to require the
government to identify a non-testifying confidential informant,
(12) attributing 15.65 kilograms of crack cocaine to Knox for
sentencing purposes, and (13) refusing to find that Knox was
subject to sentencing entrapment for selling drugs within 1000 feet
of a high school. Dixon incorporates each of Knox's allegations of
error by reference and further contends that the district court
erred by (1) refusing to grant Dixon's motion for a new trial, (2)
refusing to give Dixon's proposed jury instructions, (3) limiting
Dixon's objections, (4) attributing 11.79 kilograms of crack
cocaine to Dixon for sentencing purposes, (5) refusing to grant
Dixon a downward departure as a minimal or minor participant, (6)
refusing to grant Dixon a downward departure because his
coconspirators, who cooperated with the government, received
lighter sentences, (7) refusing to reduce Dixon's offense level
based on Dixon's acceptance of responsibility, and (8) refusing to
21
hold that the disparity between sentences for crack cocaine and
powder cocaine is unconstitutional. After carefully reviewing the
record, we determine that each of the arguments is meritless under
the established law of this Circuit and does not require
discussion. See United States v. Allen, 76 F.3d 1348, 1357 (5th
Cir.) (summarily affirming district court and refusing to discuss
meritless arguments), cert. denied, 117 S. Ct. 121 (1996).
VIII. CONCLUSION
For the foregoing reasons, we VACATE Stanley Knox's conviction
on count one (conspiracy), and AFFIRM the district court in all
other respects.
VACATED IN PART AND AFFIRMED IN PART.
22
United States v. Dixon
Court: Court of Appeals for the Fifth Circuit
Date filed: 1997-12-29
Citations: 132 F.3d 192
Copy CitationsCombined Opinion