UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 92-8516
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVERNE M. FOY,
Defendant-Appellant.
______________________________________________
Appeal from the United States District Court for the
Western District of Texas
______________________________________________
(August 2, 1994)
Before GARWOOD, SMITH and STEWART, Circuit Judges.
GARWOOD, Circuit Judge:
Defendant-appellant, Daverne M. Foy (Foy), convicted of a
firearms offense and several drug offenses, appeals his convictions
and sentence, asserting numerous errors by the district court and
that the evidence is insufficient to sustain his conviction of the
conspiracy and firearms offenses. We vacate and remand.
Facts and Proceedings Below
At approximately 2:00 p.m. on August 7, 1991, Austin, Texas
police officer Randall Milstead (Milstead) met with a confidential
informant and arranged a "controlled buy" of two rocks of cocaine
(commonly known as "crack") from apartment #1039 located at 2101
Burton Drive in Austin (hereinafter "the Apartment"). Milstead and
another officer first searched the informant, gave him two marked
twenty dollar bills and followed him to the Apartment. While under
police surveillance, the informant entered the Apartment, stayed
five to ten minutes and returned to a prearranged location where he
gave Milstead two rocks which he stated were crack purchased at the
Apartment. Milstead then conducted a preliminary field-test
analysis on the rocks and determined that they contained cocaine.
Based on the information received from the confidential
informant and the controlled buy, Milstead later that afternoon
obtained a warrant to search for cocaine at the Apartment. That
evening between 6:30 p.m. and 7:30 p.m. Milstead and several other
officers from Austin's Special Mission Team executed the warrant.
Upon entering the Apartment, Officer Fred Toler (Toler) saw
Joan Dickenson (Dickenson) and Rodney Thomas (Thomas) sitting in
the living room. Toler saw Dickenson stand up, place a plastic
baggie under a couch and sit back down. Toler retrieved the baggie
and later discovered it contained .19 grams of cocaine base.
Officer Robert Dahlstrom (Dahlstrom) conducted a search of the
Apartment's kitchen where he discovered 14 plastic baggies of
marihuana weighing .57 grams underneath the sink; a measuring cup
with a 15.17 gram "cookie" of crack on the counter; and a plastic
baggie with 2.23 grams of crack hidden in an oven vent. Dahlstrom
also retrieved baking soda, plastic baggies and an Exacto knife
from the kitchen.1
1
Dahlstrom testified that baking soda is used to make crack
and an Exacto knife is frequently used to cut up a crack "cookie"
2
Milstead searched an upstairs bedroom in the Apartment. When
he entered the bedroom, he encountered Kimberly Rogers (Rogers) and
appellant Foy sitting on a bed. Milstead instructed the couple to
lay down on the bed and handcuffed them. Milstead then saw a rock
substance, weighing .77 grams, on the carpeted floor where Foy's
and Rogers' feet had been. Under the bed, Milstead found a shoe
box which contained an unloaded 9mm Smith & Wesson semi-automatic
pistol,2 loose rounds of ammunition, and a loaded 9mm clip. In a
closet there, Milstead found an unloaded 12-gauge shotgun. He also
found 55 baggies of marihuana weighing 2.03 grams hidden under a
dresser in this bedroom. In addition to the guns and drugs,
Milstead uncovered in this bedroom a sheet of paper with
handwritten names and numbers. Milstead stated that the paper
resembled a "tally sheet" or ledger often used by drug dealers to
record their transactions.
Police officer Paul Ford, (Ford) searched the second upstairs
bedroom which was used by Dickenson and Thomas. Ford found a
loaded revolver and a box of ammunition in a nightstand. From a
dresser drawer, Ford retrieved $300 in cash and 3 plastic baggies
containing 31 rocks of crack.3 On the top shelf of a walk-in
closet in this bedroom, the police found a key-lock fire safe.
After the safe was broken open, the police retrieved 4 cookies of
crack which weighed about 91 grams and approximately $7,000 in
into several rocks.
2
Later, the police discovered that the gun was stolen.
3
The crack weighed approximately 6.02 grams.
3
currency.4
Dickenson, Thomas, Foy, and Rogers were charged with state
drug offenses and taken to the Austin Police Department.5 After
advising Foy of his constitutional rights Milstead interviewed him.
In a signed written statement, Foy admitted to selling small
baggies of marihuana. Foy stated that he obtained the 9mm semi-
automatic and the shotgun through gambling and kept the guns for
protection.
A federal complaint was served against Foy on November 25,
1992. On December 18, 1991, a three-count federal indictment was
returned which charged Foy with (1) conspiring to possess with
intent to distribute cocaine base; (2) possession of cocaine base
with intent to distribute; and (3) using a firearm during
commission of a drug trafficking offense. Subsequently, Foy filed
motions to suppress the evidence seized during the execution of the
search warrant and his post-arrest statements to Milstead. On
February 27, 1992, the district court denied both motions.
On March 3, 1992, a superseding indictment adding another
count was filed. The new count charged possession of marihuana
with intent to distribute. In the superseding indictment, the
marihuana possession offense was listed as count three and the
4
The two twenty dollars bills earlier given to the informant
for the controlled buy were found in the fire safe.
5
The charges against Rogers were later dismissed. Thomas
pleaded guilty in state court to possessing cocaine with intent
to distribute and served seven months. The record does not
reflect the disposition of charges against Dickenson.
4
firearm offense became count four.6
Two weeks later a superseding information was filed charging
Foy with conspiracy to possess with intent to distribute less than
fifty kilograms of marihuana. Pursuant to a written plea agreement
with the government, Foy waived indictment and agreed to plead
guilty to the offense charged in the information and cooperate with
the government by providing information about drug trafficking
activities in exchange for the government's dismissal of the four-
count indictment and commitment "not to pursue other . . . offenses
against this defendant with regard to the facts that gave rise to
the Information."
At an April 20, 1992 hearing, the district court was presented
with the plea agreement (hereinafter "the Agreement"). The
district court questioned Foy extensively about whether he
understood the consequences of pleading guilty and explained that
pursuant to the Agreement the charge he was pleading guilty to
carried a maximum possible sentence of five years. Thereafter, the
government presented its summary of the evidence. The district
court then allowed Foy to explain or enlarge on the evidence
presented. At that point Foy stated he did not sell any cocaine.
Foy did admit to owning a revolverSQexplaining "an old man gave me
that revolver"SQbut stated he never loaded it. After questioning
Foy further about the voluntariness of his plea, the district court
asked Foy if he still wanted to continue in his plea of guilty.
6
The firearm count was also modified so that the underlying
drug trafficking offense now included possession of marihuana
with intent to distribute in addition to possession of cocaine
with intent to distribute and conspiracy to do so.
5
Foy answered yes and pleaded guilty.
The district court then stated:
"All right. I will find Mr. Foy's plea is freely and
voluntarily made, that he understands the charge that
he's pleaded to, that he's had competent counsel. He
understands the maximum penalties. He understand (sic)
his constitutional and statutory rights and he waives
them and he desires to waive them and enter a plea of
guilty.
"I find that he's competent to stand trial and I
find that there's more than a factual basis for that
plea. So I accept the plea, find him guilty of Count one
in the superseding indictment." (emphasis added.)
Approximately six weeks later, on June 5, 1992, the district
court held Foy's sentencing hearing. At the hearing, Foy presented
his objections to the presentencing report (hereinafter "PSR").7
In response to Foy's objections, the government alleged that Foy
had not complied with the terms of the Agreement and moved to
strike the Agreement.8
The district court then stated:
"I want the record to note that the Court has not
accepted the plea agreement at this point in time itself,
and in light of the presentence investigation, in light
of the allegations and the circumstances surrounding it,
the Court had a grave concern about accepting this plea
agreement, and if, in fact, the position of the defendant
7
Foy objected to the PSR's: (1) use of all 116.03 grams of
crack found in the Apartment in its calculation of his relevant
conduct; (2) failure to adjust for his minimal role in the
cocaine trafficking offenses; (3) denial of an adjustment for
acceptance of responsibility; and (4) failure to classify his
criminal activity as "aberrant behavior."
8
The government stated that "pursuant to the objections that
have been filed just recently in the case to the presentence
investigation, [] he is in violation of the plea agreement with
the Government. He has not complied with the term that requires
him to debrief fully and honestly and completely." Foy denied
any breach. The district court did not receive any evidence
concerning Foy's alleged noncompliance.
6
is as indicated by counsel and is SQ that may be a
contention of the United States that the plea agreement
has been breached.
"My concern was more basic, and that is, that it
looked like Mr. Orr [defense counsel] had done a
tremendous job for this gentleman, because the
circumstances in the presentence investigation justified
one heck of a lot more sentence than the maximum, and as
to SQ so the court has reservations itself."
After a few minutes discussion about whether Foy had fully
debriefed or could debrief after sentencing, the court stated:
"My tendency is, at this point in time looking at the
presentence investigation and looking at the overall
circumstances of Mr. Foy and what the overall
circumstance could be, because I haven't heard any
evidence other than the investigationSQwhen I read
through the presentence investigation I just realized
that you had done an excellent (sic) in getting the plea
agreement, and that was troublesome for the Court because
I was seriously and I'm still seriously thinking of
rejecting the plea agreement, but you did good lawyering,
and apparently the position of the Government was that
they were willing to give this very substantial break to
Mr. Foy if he would provide information.
"He's not only not provided the information, he's stated
a disassociation with the crime to the degree that its
absolutely absurd."
Foy's lawyer then responded:
"Your Honor, that's always been the position he's taken
with me from the very first interview I had with him.
That's what he's always SQ."
The court then replied:
"If that's the case, then I do reject the plea agreement.
I'm setting the case for trial . . . . "
The court thereafter entered an order reciting its rejection
of "the plea agreement" and setting the case for trial on the
superseding indictment. The order states no reasons for rejecting
the plea agreement. The jury trial was held from June 29 to July
1, 1992. The government case consisted primarily of the evidence
7
obtained during the search of the Apartment and Foy's statements to
Milstead. Foy presented two witnesses in his defense. Foy's
girlfriend, Rogers, testified that she had been visiting from
Chicago for four to five days prior to the August 7 search. She
stated that on August 7 Foy left the Apartment at about 12:00 p.m.
to play basketball and returned between 4:00 p.m. and 5:00 p.m.
that afternoon. Rogers stated that while Foy was gone Robert Lynn
Middleton (Middleton) arrived at the Apartment and went upstairs to
Dickenson's room. She stated Middleton had come into the Apartment
an hour or two before the police arrived and stayed about thirty-
five minutes. Rogers testified that Middleton, a known drug
dealer, was Dickenson's boyfriend. She testified that Middleton
came to the Apartment two to four times a day and sometimes stayed
overnight in the second bedroom with Dickenson. Rogers stated that
on one occasion she observed Middleton with something that looked
like a safe but she did not know if it was the same fire safe she
saw police retrieve from Dickenson's closet. Rogers explained that
she had not been aware before the search that there was a safe
located in Dickenson's bedroom. Rogers also stated that she never
saw crack or marihuana in the Apartment.
Thomas also testified for the defense. He stated that he and
Dickenson leased the Apartment. He testified that he shared an
upstairs room with Dickenson, but he slept downstairs when
Middleton, Dickenson's boyfriend, was at the Apartment. He
testified that the safe in the second bedroom had been placed there
by Middleton approximately three weeks before the search and that
8
Middleton had the only key to the safe.9 Thomas stated that he
owned the 9mm pistol found in Foy's bedroom but did not know it was
stolen. Thomas reported that Foy dealt marihuana, not crack.10
Foy did not testify. On July 1, at 10:35 a.m. the jury
retired to deliberate. At 2:24 p.m. it sent a note to the court
stating that it had reached a verdict on counts two, three, and
four but could not reach a verdict on count one. The court
instructed the jury to continue its deliberations and attempt to
reach a unanimous verdict under the court's instructions. Within
an hour the jury returned its verdict, finding Foy guilty on counts
one (conspiracy to possess cocaine with intent to distribute),
three (possession of marihuana with intent to distribute) and four
(firearm use in relation to drug trafficking offense). Under count
two (possession of cocaine with intent to distribute) the jury
found Foy guilty of the lesser included offense of simple
possession of cocaine. On September 18, 1992, Foy was sentenced to
concurrent terms of ninety-seven months on count one, twelve months
on count two, ninety-seven months on count three, followed by a
consecutive term of sixty months on count four and five years
supervised release. Foy filed a timely notice of appeal.
9
Police Officer Ford admitted on cross-examination that the
key to the safe was never found.
10
On cross-examination, the government presented a statement
signed by Thomas which stated that Foy "sells rocks occasionally
to make money." Thomas denied making the statement, explaining
that he told police that Foy sold marihuana, not cocaine.
Thomas's statement also says "Daverne [Foy] and I pitched in
together in order to buy the 9mm pistol from one of our friends
we met on the street . . . . Daverne obtained the shotgun . . .
. We kept the guns for protection."
9
Discussion
On appeal Foy asserts several arguments. He contends that the
district court erred in: (1) rejecting the Agreement; (2) denying
his suppression motions; (3) instructing the jury on the conspiracy
offense, firearms offense and reasonable doubt; and (4) failing to
make express findings on drug quantity. Foy also claims that the
evidence presented was insufficient to convict him of either the
cocaine conspiracy or the firearms offense. Lastly, Foy alleges
that he was denied effective assistance of counsel.11
I. Plea Agreement
Foy makes three arguments regarding the district court's
rejection of the Agreement. First, Foy asserts that the district
court violated Federal Rules of Criminal Procedure 32(c)(1) and
11(e) by retracting its unconditional acceptance of the Agreement
after it reviewed the PSR. Foy further argues that the district
court erred by failing to expressly state its reasons for rejecting
the Agreement and that, in any event, the district court's decision
to reject the Agreement was an abuse of its discretion.
A. Unconditional Acceptance
Foy asserts that the district court erred by first accepting
his plea, and then rejecting the Agreement and the plea. Foy
acknowledges that a defendant has "no absolute right to have a
11
Pursuant to order of the district court, Foy's appointed
appellate counsel incorporated by reference into his brief all of
Foy's pro se appellate brief. This procedure has not been
challengedSQthough we do not normally countenance presentation
both "pro se" and by counselSQand, under the particular
circumstances here, we elect to consider all contentions in both
briefs.
10
guilty plea accepted," Santobello v. New York, 92 S.Ct. 495, 498
(1971), but alleges that the district court cannot first
unconditionally accept, then later reject, a plea.
Foy cites United States v. Cruz, 709 F.2d 111 (1st Cir. 1983),
a First Circuit decision with facts similar to the instant case, as
support for his contention.12 In Cruz the district court
unconditionally accepted a bargained guilty plea, but, upon review
of the PSR, subsequently vacated the plea. On appeal the Cruz
court reinstated the original guilty plea and remanded for
sentencing.
The Cruz court observed that under Federal Rule of Criminal
Procedure 32(c)(1) the PSR "shall not be submitted to the court or
its contents disclosed to anyone unless the defendant has pleaded
guilty or nolo contendere or has been found guilty," except that a
judge may, with the written consent of the defendant, inspect a
presentence report at any time. The court noted that pursuant to
Federal Rule of Criminal Procedure 11(e) the district court can do
one of three things with a plea bargainSQit may accept the
agreement, reject the agreement or defer its decision until it has
an opportunity to review the PSR. Id. at 114. The court then
reasoned that:
12
In Cruz, the defendant was indicted for cocaine trafficking.
Later, pursuant to a plea agreement, an information charging
misdemeanor narcotics possession was substituted for the
indictment. After being presented with the plea agreement, the
district court first questioned the defendant to determine
whether he understood the rights he was waiving by pleading
guilty and then unqualifiedly accepted the plea. At the
sentencing hearing two months later, the district court rejected
the plea.
11
"Under Rules 11 and 32, the court could not use this
information in its initial decision to accept or reject
the plea unless it had defendant's consent. If a court
were entitled to use the report to vacate a plea
agreement it had previously accepted, there would be no
reason to obtain the defendant's consent to use the
report during its initial consideration of the plea
agreement. It could accept the agreement
unconditionally, read the presentence report in
accordance with Rule 32, and then, on the basis of the
report, simply change its mind and revoke its earlier
acceptance. This would completely vitiate the protective
consent requirements embodied in Rules 11(e) and
32(c)(1)." Id. at 115.
The Cruz court held that absent fraud on the court, once the
district court accepted the plea agreement it could not simply
change its mind on the basis of information revealed in the PSR.
Although Cruz supports Foy's contentions, we conclude it is no
longer authoritative due to (1) the 1987 amendment to Rule 32(c)(1)
and (2) the implementation of the United States Sentencing
Guidelines (the "Guidelines").13 First, a 1987 amendment to Rule
32(c)(1) deleted a provision which allowed a defendant to waive
preparation of a PSR. The rule now requires that a PSR be prepared
before imposition of a defendant's sentence.14 Second, Guidelines
13
Cruz was also influenced to some degree by double jeopardy
concerns, relying in part on language in our opinion in United
States v. Sanchez, 609 F.2d 761 (5th Cir. 1980). See Cruz at
112-113. However, the Supreme Court's subsequent decision in
Ohio v. Johnson, 104 S.Ct. 2536, 2541-42 (1984) has been regarded
by the First Circuit as effectively rejecting the double jeopardy
concerns expressed in Cruz, and, inferentially, in Sanchez. See
United States v. Soto, 825 F.2d 616, 619-20 (1st Cir. 1987);
United States v. Kurkculer, 918 F.2d 295, 301 n.9 (1st Cir. 1990)
(John R. Brown, J.). We agree in this respect with Soto and
Kurkculer. This aspect of Foy's case presents no double jeopardy
concerns.
14
Prior to the 1987 amendment, Rule 32(c)(1) provided: "The
probation service of the court shall make a presentence
investigation and report to the court before the imposition of
sentence or the granting of probation unless, with the permission
12
§ 6B1.1(c) currently instructs that a "court shall defer its
decision to accept or reject" (emphasis added) any plea agreement
involving the dismissal of charges, pursuant to Rule 11(e)(1)(A),
or the agreement for a specific sentence, pursuant to Rule
11(e)(1)(C), "until there has been an opportunity to consider the
presentence report." The commentary to section 6B1.1 explains:
"Rule 11(e)(2) gives the court discretion to accept the
plea agreement immediately or defer acceptance pending
consideration of the presentence report. Prior to the
guidelines, an immediate decision was permissible
because, under Rule 32(c), Fed.R.Crim. P., the defendant
could waive preparation of the presentence report.
Section 6B1.1(c) reflects the changes in practice
required by § 6A1.1[15] and amended Rule 32(c)(1). Since
a presentence report normally will be prepared, the court
must defer acceptance of the plea agreement until the
court has had an opportunity to consider the presentence
report." U.S.S.G. § 6B1.1(c), comment (emphasis added).
We conclude that section 6B1.1(c) makes a district court's
acceptance of a guilty plea contingent upon the court's review of
the PSR. See United States v. Kemper, 908 F.2d 33, 35 (6th Cir.
1990) (rulingSQbased on the GuidelinesSQthat a district court's
acceptance of a plea agreement is necessarily contingent on the
of the court, the defendant waives a presentence investigation
and report, or the court finds that there is in the record
information sufficient to enable the meaningful exercise of
sentencing discretion . . . ."
Rule 32(c)(1) currently provides: "A probation officer
shall make a presentence investigation and report to the court
before the imposition of sentence unless the court finds that
there is in the record information sufficient to enable the
meaningful exercise of sentencing authority pursuant to 18 U.S.C.
§ 3553 . . . ."
15
Section 6A1.1 provides: "A probation officer shall conduct
a presentence investigation and report to the court before the
imposition of sentence . . . ."
13
court's consideration of the presentence report).16 Even so, the
better practice would certainly be for the district court to
expressly point out at the Rule 11 hearing that although the plea
met all the requirements for acceptance under Rule 11(e)(1)(B), or
in the absence of an agreement, and was provisionally accepted,
final acceptance was contingent on the court's review of the PSR.
However, we cannot say that the failure to so advise is reversible
error. The district court here never purported to accept the
Agreement itself and Foy never objected below to the court's
rejection of the Agreement on the ground that the plea had already
been irrevocably accepted. It is clear that if the district court
erred at all in this respect the error was not "plain" within the
meaning of FED. R. CRIM. P. 52(b). See United States v. Olano, 113
S.Ct. 1770, 1777-78 (1993); United States v. Rodriguez, 15 F.3d
408, 415 (5th Cir. 1994). Accordingly, Foy is not entitled to
reversal on his Cruz based theory.
B. Reasons for Rejecting Agreement and Abuse of Discretion
Foy also argues that this court should follow the decisions of
16
See also Fields v. United States, 963 F.2d 105, 107-108 (6th
Cir. 1992); United States v. Johnson, 979 F.2d 396, 398 n.2 (6th
Cir. 1992). However, the Sixth Circuit has not been entirely
consistent on this point. In United States v. Skidmore, 998 F.2d
372, 374-5 (6th Cir. 1993), the panel relied on United States v.
Holman, 728 F.2d 809, 812-13 (6th Cir.), cert. denied, 105 S.Ct.
388 (1984), which itself had relied on Cruz, without noting that
Kemper had held Holman to have been overruled by the Guidelines.
The Eleventh Circuit, without citing Kemper or the relevant
Guidelines provisions, has also cited Holman and Cruz with
approval, as well as United States v. Blackwell, 694 F.2d 1325
(D.C. Cir. 1982), another pre-Guidelines case relied on by Cruz
and Holman. See United States v. Yesil, 991 F.2d 1527, 1532
(11th Cir. 1992). It appears to us, however, that Kemper's
approach is more persuasive under the Guidelines.
14
other circuits which have ruled that a district court must
expressly state its reasons for rejecting a plea agreement. See,
e.g., United States v. Moore, 916 F.2d 1131, 1135-36 (6th Cir.
1990); United States v. Miller, 722 F.2d 562, 566 (9th Cir, 1983);
United States v. Ammidown, 497 F.2d 615, 623 (D.C. Cir. 1973). But
see United States v. Moore, 637 F.2d 1194, 1196 (8th Cir. 1981).
No statute nor any of the Federal Rules of Criminal Procedure or
the Sentencing Guidelines require a statement of reasons for
rejecting a plea agreement. Certainly the better practice would be
for the district court to expressly state its reasons. However, we
decline to adopt a hard and fast rule, and instead hold that a
district court's decision to reject a plea agreement is proper as
long as the record as a whole renders the basis of the decision
reasonably apparent to the reviewing court and a decision on that
basis is within the district court's discretion.
A district court's rejection of a plea agreement is reviewed
for abuse of discretion. United States v. Bean, 564 F.2d 700, 704
(5th Cir. 1977). Foy asserts that the district court abused its
discretion because it rejected the Agreement based on his refusal
to admit to the relevant conduct alleged in the PSR. The
government argues, however, that the district court's rejection of
the plea was properly based on its belief that the defendant would
receive a too lenient sentence. Foy also contends that rejection
on the latter ground would not be warranted under the facts here.
A court may properly reject a plea agreement based on undue
leniency. See Bean at 704 ("A decision that a plea bargain will
result in the defendant's receiving too light a sentence . . . is
15
a sound reason for a judge's refusing to accept the agreement.");
Sentencing Guidelines Policy Statement § 6B1.2(a) (if a plea
agreement calls for dismissal of charges or promises not to pursue
potential charges, acceptance of the agreement contemplates finding
that "the remaining charges adequately reflect the seriousness of
the actual offense behavior and that accepting the agreement will
not undermine the statutory purposes of sentencing or the
sentencing guidelines"). However, absent some special circumstance
it would ordinarily be an abuse of discretion for a court to reject
a plea agreement based on a defendant's refusal to acquiesce in the
findings of a PSR. Pursuant to Guidelines section 6A1.3 a
defendant has the right to submit objections to the PSR.17 Thus,
a district court decision to reject a plea agreement based on a
defendant objecting to a PSR and refusing to admit culpability for
other offenses, would normally constitute unjustifiable coercion of
a defendant to forgo his right to object to a PSR in order to
preserve his plea bargain.
Here, although the district court did not expressly so state,
certain of its remarks at the June 5, 1992 sentencing hearing, if
considered in isolation, would ordinarily lead us to conclude that
it rejected the Agreement because it was too lenient and did not
meet the criteria set out in section 6B1.2(a). However, these
remarks do not stand alone. The district court did not ultimately
reject the Agreement until Foy's counsel correctly reminded the
17
Section 6A1.3(b) provides in part: "The court shall . . .
provide a reasonable opportunity for the submission of oral or
written objections before imposition of the sentence."
16
court that Foy had always taken the positionSQincluding expressly
at the Rule 11 hearing when his plea was acceptedSQthat he was not
involved with any cocaine distribution. The court's response was
"If that's the case, then I do reject the plea agreement" (emphasis
added).18 Moreover, the court had been advised at the Rule 11
hearing, when it accepted the plea, that the Agreement contemplated
dismissal of all charges against Foy except the marihuana count.
Because of these remarks of the district court at the June 5
hearing, and the context in which they were made (including the
lack of other express reasons for rejecting the Agreement), we are
unable to conclude that the court did not reject the Agreement, at
least in material part, on an improper basis, namely, Foy's
repetition of the position he took at the Rule 11 hearing that he
was not involved with cocaine distribution.
We accordingly vacate Foy's sentence and remand for
reconsideration of the Agreement, uninfluenced by Foy's continuing
to take the position he took at the Rule 11 hearing respecting the
cocaine. We do not preclude the district court's ultimate
rejection of the Agreement on the basis that it does not meet the
standards of section 6B1.2(a).19 In the event the district court
18
The district court also had expressed some concern about the
government's allegationsSQwhich Foy deniedSQthat Foy had breached
the Agreement's cooperation provisions. However, the government
never offered any evidence of this, the district court made no
findings of breach, and we think it clear that the district court
did not base its decision on this ground.
19
We overrule Foy's contention that on the facts here
rejection under the section 6B1.2(a) criteria would constitute an
abuse of discretion.
Moreover, the district court may also properly reject the
Agreement if it should be shown that, as the government alleged,
17
ultimately accepts the Agreement, it should vacate Foy's
convictions and sentence under the indictment, and convict and
sentence him under the information. If the district court
ultimately rejects the Agreement, then, for the reasons stated
below, Foy's convictions under the indictment may stand, but he
shall be resentenced for such offenses consistent with this
opinion.
As the district court may ultimately reject the Agreement, we
now turn to Foy's other challenges to his convictions and
sentencing under the indictment.
II. Suppression Motions
Foy asserts that the district court erred in denying his
motions to suppress (1) evidence obtained during execution of the
search warrant and (2) his post-arrest statements to Milstead.
A. Search Warrant
This court engages in a two-step review of a district court's
denial of a motion to suppress the fruits of a search based on a
warrant. United States v. Webster, 960 F.2d 1301, 1307 (5th Cir.
1992), cert. denied, 113 S.Ct. 355 (1992). Generally, the first
step is to determine whether the good faith exception to the
exclusionary rule applies. Id. The second step is to determine
whether probable cause supported the warrant. United States v.
Foy had breached his obligations under the Agreement. We note in
this connection that the Agreement states that "[s]hould the
defendant fail to meet his obligation under this agreement, the
United States Attorney . . . would be released from any duty to
comply with this plea agreement." Rejection on such a basis,
however, should be accompanied by an appropriate finding grounded
on adequate evidence with Foy having an opportunity to challenge
and rebut.
18
Satterwhite, 980 F.2d 317, 320 (5th Cir. 1992). If the good faith
exception applies, this court need not reach the probable cause
issue. Webster, 960 F.2d at 1307.
The good faith exception applies unless one of four exceptions
to it is present.20 Foy argues under the third exception that
Milstead's affidavit is a "bare bones" affidavit, i.e. so lacking
in any indica of probable cause as to render official belief in its
existence wholly unreasonable. Foy maintains that Milstead's
affidavit provided no corroboration of the informant's reliability
and credibility, and that the controlled buy was not sufficient
corroboration since crucial events were not personally observed by
Milstead.
As reflected in Milstead's affidavit, after he received
information from the confidential informant that cocaine was being
sold out of the Apartment, he set up a controlled buy; pursuant to
the controlled buy he searched the informant for money and drugs
before allowing him to enter the Apartment; he observed the
informant as he entered and left the Apartment; when the informant
returned he had two rock substances resembling crack, which the
informant said he had just purchased in the Apartment from a man
20
Those exceptions are: "(1) If the issuing magistrate/judge
was misled by information in an affidavit that the affiant knew
was false or would have known except for reckless disregard of
the truth; (2) where the issuing magistrate/judge wholly
abandoned his or her judicial role; (3) where the warrant is
based on an affidavit so lacking in indicia of probable cause as
to render official belief in its existence entirely unreasonable;
and (4) where the warrant is so facially deficient in failing to
particularize the place to be searched or the things to be seized
that the executing officers cannot reasonably presume it to be
valid." Id. at 1307 n.4.
19
named "Sparkle" in the presence of a woman named Dickenson;
Milstead verified that the substance the informant returned with
was cocaine and the Apartment utilities were in Dickenson's name.
Milstead's reliance on the warrant based on his affidavit clearly
meets the good faith exception. A reasonable officer could
properly conclude that these facts sufficed to establish probable
cause. The district court did not err in denying Foy's motion to
suppress evidence obtained during the search.
B. Oral Statements
Foy contends that the district court erred in denying his
motion to suppress incriminating statements made after his arrest.
The district court held a hearing on Foy's motion and concluded
that Foy made a willing and voluntary waiver of his Miranda rights.
In reviewing a district court's ruling on a motion to suppress
based on live testimony at a suppression hearing, the district
court's findings of historical fact must be accepted unless clearly
erroneous or influenced by an incorrect view of the law. United
States v. Laury, 985 F.2d 1293, 1314 (5th Cir. 1993). The evidence
is viewed in the light most favorable to the party that prevailed
below. Id. In determining whether a defendant has validly waived
his rights, the court looks at the totality of the circumstances
surrounding the interrogation. Id. at 1315.
The district court determined that Foy was advised of his
rights once at the time of his arrest and again at the police
station. In addition, Foy placed his initials next to each of the
rights listed on the confession form. After Milstead typed Foy's
statements, Foy signed the confession form. The confession form
20
stated, "I do hereby knowingly, intentionally and voluntarily waive
my right to be silent and my right to have a lawyer present."
There is nothing in the record to suggest that Foy's statements
were not freely and voluntarily made. The district court did not
err in denying Foy's motion to suppress his oral statements.
III. Jury Instructions
Foy contends that the district court erred in its charge to
the jury on the conspiracy offense, firearms offense, and
reasonable doubt. As Foy did not object to any of these
instructions during the trial we review for plain error. See
United States v. Davis, 19 F.3d 166, 169 (5th Cir. 1994). All of
the jury instructions corresponded with the Fifth Circuit Patterned
Jury Instructions. We find no plain error.
IV. Sufficiency of the Evidence
A. Standard of Review
In reviewing sufficiency of evidence, this Court reviews all
evidence in the light most favorable to the verdict and determines
whether a reasonable jury could have found the essential elements
of the offenses beyond a reasonable doubt. United States v.
Menesses, 962 F.2d 420, 426 (5th Cir. 1992). A verdict of not
guilty on one count does not, for purposes of our review of the
sufficiency of the evidence, establish facts favorable to the
defense in respect to any other count tried at the same time. See,
e.g., United States v. Powell, 105 S.Ct. 471, 476-77 (1984); United
States v. Straach, 987 F.2d 232, 240-41 (5th Cir. 1993); United
States v. Chaney, 964 F.2d 437, 449 & n.33 (5th Cir. 1992).
B. Conspiracy offense
21
Foy alleges that the evidence is insufficient to support his
conviction for conspiracy to possess cocaine with intent to
distribute. In addition, Foy submits that since he was convicted
of conspiracy without being convicted of the underlying substantive
offense, this court should be skeptical of the verdict and engage
in a critical analysis of the facts. See United States v. Arzola-
Amaya, 867 F.2d 1504 (5th Cir.), cert. denied, 110 S.Ct. 322
(1989).
To establish the conspiracy offense charged in count one, the
government had to prove beyond a reasonable doubt that (1) there
was an agreement between two or more persons to possess cocaine
with intent to distribute it; (2) each alleged conspirator knew of
the conspiracy and intended to join it; and (3) each alleged
conspirator voluntarily participated in the conspiracy. United
States v. Rodriguez, 993 F.2d 1170, 1175 (5th Cir. 1993). While
"'[m]ere presence at the scene and close association with those
involved are insufficient factors alone; they are relevant factors
for the jury.'" Id. (citing United States v. Sanchez, 961 F.2d
1169, 1174 (5th Cir. 1988)).
At trial the government presented evidence that Foy lived in
an Apartment in which approximately 116 grams of crack were found.
Foy, who admitted to selling marihuana, was found with .77 grams of
crack and a paper resembling a tally sheet in his bedroom.
Evidence also established that a recently cooked crack cookie
weighing 15.17 grams was laying out in plain view in the kitchen.
In addition to the crack, drug trafficking paraphernalia such as an
Exacto knife and plastic baggies were also found in the kitchen.
22
Marihuana, a drug Foy admits to selling, was also found in the
kitchen.
Foy's residency in the Apartment coupled with the presence of
crack and a tally sheet in his bedroom offer the strongest support
of his involvement in the conspiracy to sell cocaine. Viewing the
evidence in the light most favorable to the government, we find it
was sufficient for the jury to convict Foy of the conspiracy
offense.
C. Firearms Offense
Foy asserts that evidence he possessed two unloaded firearms21
is insufficient to support his conviction for using or carrying a
firearm during the commission of a drug trafficking offense in
violation of 18 U.S.C. § 924. Foy notes that, in 1982 Congress
amended section 924(c) to preclude application of the statute in a
situation where the presence of a weapon played no part in the
underlying offense. United States v. Wilson, 884 F.2d 174, 176-77
(5th Cir. 1989). Foy submits that under section 924 the government
must prove "something more than strategic proximity of drugs and
firearms . . . to honor Congress' concerns." Id. at 177.
To establish the firearms offense alleged, the government had
to prove beyond a reasonable doubt that Foy (1) used or carried (2)
a firearm during or in relation to a drug trafficking crime.
Although the government must show some relationship between the
guns and the drug trafficking offense, "a showing that the gun was
used, handled or brandished in an affirmative manner is not
21
There were no shells for the shotgun found in the bedroom.
There was, however, ammunition for the 9mm.
23
required." United States v. Molinar-Apodaca, 889 F.2d 1417, 1424
(5th Cir. 1989). To demonstrate "use" of a firearm under 18 U.S.C.
§ 924, the government "is only obliged to show that the firearm was
available to provide protection to the defendant in connection with
his engagement in drug trafficking." Id. Thus, the government may
meet its burden by showing that the weapons involved "could have
been used to protect the operation and that the presence of the
weapons was connected with the drug trafficking." United States v.
Featherson, 949 F.2d 770, 777 (5th Cir. 1991), cert. denied, 112
S.Ct. 1698 (1992).
At trial the government presented evidence that two guns were
found in Foy's bedroom along with both crack and marihuana. One of
the guns was found in a box under Foy's bed along with ammunition.
Foy had been sitting on the bed and near his feet was a rock of
crack cocaine. The government also produced several photos showing
Foy posing with the guns and his written statement that he kept the
guns for "protection." Viewing the evidence in the light most
favorable to the government, we conclude that the guns, ammunition
and drugs found in Foy's bedroom could lead a rational trier of
fact to find that Foy kept the weapons available to protect his
drug trafficking operation.
V. Ineffective Assistance of Counsel Claim
In the instant direct appeal, Foy contends that he was denied
effective assistance of counsel at trial. "[T]he general rule in
this circuit is that a claim for ineffective assistance of counsel
cannot be resolved on direct appeal when the claim has not been
raised before the district court since no opportunity existed to
24
develop the record on the merits of the allegations." United
States v. Pierce, 959 F.2d 1297, 1301 (5th Cir.), cert. denied, 113
S.Ct. 621 (1992) (citations omitted). Since Foy's ineffective
assistance claim has not been presented to the district court, we
decline to review this ground of error, without prejudice to Foy's
raising this claim under 28 U.S.C. § 2255.
VI. Drug QuantitySQSentencing
Foy contends that the district court erred by failing to make
express findings regarding the quantity of crack attributable to
him for calculation of his sentence under the Guidelines. Foy
objected to the PSR on the ground that the total amount of crack
cocaine which it attributed to him exceeded what was reasonably
foreseeable to him; the probation officer declined to make any
change, and Foy renewed his objection at sentencing.
Pursuant to section 2D1.1(a)(3) of the Guidelines, a
defendant's offense level for a drug trafficking offense is
determined by the quantity of drugs involved. Under section
1B1.3(a)(1), the applicable drug quantity includes not only drugs
with which the defendant was directly involved, but also drugs that
can be attributed to him as part of his "relevant conduct."
Relevant conduct for conspiratorial activity is defined as the
"conduct of others in furtherance of the execution of the jointly-
undertaken criminal activity that was reasonably foreseeable by the
defendant." U.S.S.G. § 1B1.3(a)(1), comment. (n.1) (Nov. 1991).22
22
Since Foy was sentenced on September 18, 1992, the
Guidelines which were in effect from November 1, 1991, through
October 31, 1992, are applicable. United States v. Gross, 979
F.2d 1048, 1050-51 (5th Cir. 1992) (citing 18 U.S.C. §
25
"[R]easonable foreseeability does not follow automatically
from proof that [the defendant] was a member of the conspiracy."
United States v. Puma, 937 F.2d 151, 160 (5th Cir. 1991), cert.
denied, 112 S.Ct. 1165 (1992). "The reasonable foreseeability
required [under the Guidelines] requires a finding separate from a
finding that the defendant was a conspirator." Id. (citing United
States v. Warters, 885 F.2d 1266, 1273 (5th Cir. 1989)).
Therefore, "for a sentencing court to attribute to a defendant a
certain quantity of drugs, the court must make two separate
findings: (1) the quantity of drugs in the entire conspiracy, and
(2) the amount which each defendant knew or should have known was
involved in the conspiracy." United States v. Puig-Infante, 19
F.3d 929, 942.
The government argues that the district court findings were
adequate because it implicitly adopted the findings of the PSR on
quantity and foreseeability when it overruled Foy's objections to
the PSR.23 We do not agree. Although it may be reasonable to infer
that the district court accepted the PSR's findings on the quantity
involved in the entire conspiracy, such findings are still
insufficient since the PSR does not specifically address reasonable
3553(a)(4)). In the 1992 amendments to the Guidelines, the
above-quoted language was incorporated into the body of section
1B1.3. Section 1B1.3 now reads in relevant part: "in the case of
a jointly undertaken criminal activity [the defendant may be held
accountable for], all reasonably foreseeable acts and omissions
of others in furtherance of the jointly undertaken criminal
activity." U.S.S.G. § 1B1.3(a)(1)(B) (Nov. 1993).
23
The district court stated: "I think that there's no question
that the amount of cocaine in Miss Davenport's (sic) house, not
even counting the cooking the kitchen, is an amount that must be
taken into consideration on the sentencing guidelines."
26
foreseeability.24 See United States v. Webster, 960 F.2d 1301, 1310
(5th Cir. 1992). Thus, we vacate the sentence and remand to the
district court for specific findings regarding the amount of crack
reasonably foreseeable to Foy.25
VII. Other Sentencing Concerns
The district court erred in sentencing Foy to ninety-seven
months for possession with intent to distribute less than fifty
kilograms of marihuana under count three. Pursuant to 21 U.S.C. §
841(b)(1)(D), the maximum term for this offense is sixty months.
As the district court's sentence exceeded the statutory maximum, we
vacate and remand count three for resentencing.
Conclusion
Accordingly, we VACATE Foy's sentence and REMAND the cause to
the district court to reconsider its rejection of the Agreement
consistently with this opinion. If upon reconsideration the
district court determines that the plea bargain should not be
rejected, he shall vacate Foy's convictions and sentences under the
indictment, and convict and sentence him in accordance with the
Agreement. If the district court, on such reconsideration, rejects
the Agreement based on an appropriate factor, the court should then
24
In responding to Foy's objections regarding a finding on
reasonable foreseeability, the PSR concluded Foy played a
significant role in the drug-trafficking enterprise and made no
changes in its quantity calculation. However, this conclusion of
the PSR cannot be attributed to the district court, since the
district court determined that Foy was only a minor participant
in the conspiracy.
25
We reject Foy's contention that there was no appropriate
basis on which the district court properly attributed to Foy all
the cocaine in the Apartment as reasonably foreseeable to him.
27
resentence Foy for the indicted offenses of which he was convicted
based on a specific finding respecting reasonable foreseeability of
drug quantity for count one and within the statutory maximum for
count three.
VACATED and REMANDED
28