IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 97-30321
__________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PATRICK FRANKLIN,
Defendant-Appellant.
___________________________________________________
Appeal from the United States District Court
For the Middle District of Louisiana
___________________________________________________
July 22, 1998
Before WIENER, BARKSDALE, and DeMOSS, Circuit Judges.
WIENER, Circuit Judge:
Defendant-Appellant Patrick Franklin appeals his convictions
for distributing and conspiring to distribute cocaine and cocaine
base (commonly known as crack cocaine) in violation of 21 U.S.C.
§§ 841(a)(1) & 846 and 18 U.S.C. § 2.1 Finding no reversible error
in Franklin’s trial or his sentencing, we affirm.
I
FACTS AND PROCEEDINGS
From 1992 to 1994, Franklin worked with John Milton, Burlin
1
21 U.S.C. §§ 841(a)(1) & 846 (1994); 18 U.S.C. § 2 (1994).
Harris, and Anthony Dozier, manufacturing and distributing crack
cocaine out of a residence in Baton Rouge, Louisiana. Milton
headed the operation, obtaining significant amounts of cocaine (in
excess of several kilograms) from Houston, Texas, which he and the
others converted to crack through a process known as “cooking.”
Franklin, acting under the direction of Harris, assisted in
distributing crack out of the Baton Rouge residence.
The Drug Enforcement Administration (“DEA”) enlisted the aid
of a cooperating individual (“CI”) to investigate the operation.
The CI twice purchased crack from the drug-trafficking conspirators
—— once from Franklin (approximately 10 grams), and once from
Dozier (approximately 10.3 grams). Law enforcement officials
executed a search warrant for the residence, and various drug-
trafficking paraphernalia was recovered, including: (1) a triple
beam scale; (2) a digital scale; (3) a microwave oven containing
crack residue; (4) canisters of procaine (a chemical commonly cut
with cocaine for the purpose of stretching out the amount of crack
produced); and (5) containers with secret compartments.
In a ten-count indictment dated March 19, 1996, Franklin and
his codefendants were charged with violating 21 U.S.C. § 846 and 18
U.S.C. § 2 by conspiring to distribute, and to possess with intent
to distribute, cocaine and cocaine base. Franklin was also
charged, under counts four and five of the indictment, with
specific acts of cocaine distribution in violation of 21 U.S.C.
§ 841(a)(1) and 18 U.S.C. § 2.
2
Franklin made his initial appearance before the district court
on April 2. On May 30 and June 20, respectively, Harris and Dozier
pleaded guilty to the offenses with which each had been charged.
Milton remained at large until August, making his initial
appearance on August 15 —— 134 days after Franklin’s initial
appearance.2
On August 29, Milton filed motions requesting pretrial notice
of the government’s intent to use evidence of extrinsic acts and
seeking to compel the government to disclose “impeaching
information.” The following day, the district court ordered the
government to respond to these motions within ten days; i.e., on or
before September 9. The government responded to Milton’s request
for impeaching information on September 19, and filed its notice of
intent to use extrinsic acts evidence on September 23. That same
day, Milton entered into a plea agreement with the government, and
the next day the government filed a notice of Milton’s intent to
enter a guilty plea.
On September 30, the government filed a motion in limine,
seeking to offer other-crimes evidence at Franklin’s trial. The
court accepted Milton’s guilty plea on October 7. On October 18,
the government filed a second motion in limine, seeking to offer
evidence of Franklin’s drug use during the course of the charged
conspiracy. On October 23, the court entered an order deferring a
2
See United States v. Milton, No. 97-30570 (5th Cir. Jul. 21,
1998).
3
hearing on the government’s second motion in limine until trial,3
and Franklin filed a motion to dismiss the charges against him on
the ground that his statutory right to a speedy trial had been
violated. The court heard and denied Franklin’s speedy trial
motion on November 1 and Franklin’s trial commenced on November 4.
On November 6, a jury found Franklin guilty of all the
offenses with which he had been charged. After he was sentenced to
a 360-month term of imprisonment, Franklin timely appealed. He
urges that because more than seventy non-excludable days elapsed
from his initial appearance until his trial, the district court
erred in denying his motion to dismiss the indictment for lack of
a speedy trial. Franklin also contends that the district court
erred in (1) allowing a witness to testify concerning Franklin’s
involvement in drug transactions that allegedly predate the drug-
trafficking conspiracy charged in the indictment, (2) denying
Franklin’s motion for judgment of acquittal, finding that the
evidence adduced at trial was sufficient to support his
convictions, and (3) failing to sustain certain objections to the
presentence report (“PSR”).
II
ANALYSIS
A. SPEEDY TRIAL CLAIM
3
Nothing in the record indicates what action was taken with
respect to the government’s first motion in limine. The parties do
not dispute, however, that the resolution of that motion was
likewise deferred until trial.
4
A trial court’s factual findings underlying its ruling on a
Speedy Trial Act4 (“the Act”) motion are reviewed for clear error,
and its legal conclusions are reviewed de novo.5 Under the Act,
the trial of a defendant must commence within seventy non-
excludable days from the time an indictment has been filed or from
the date of the defendant’s initial appearance, whichever is
later.6 Excludable periods of delay are outlined in
section 3161(h).
Section 3161(h)(7) (“subsection (h)(7)”) provides for the
exclusion from the seventy-day speedy trial period of a “reasonable
period of delay when the defendant is joined for trial with a
codefendant as to whom time for trial has not run and no motion for
severance has been granted.”7 Under subsection (h)(7), the speedy
trial clock does not begin to run in a multi-defendant prosecution
until the last codefendant makes his initial appearance in court.8
Also, the excludable delay of one codefendant may be attributable
4
18 U.S.C. §§ 3161-3174 (1994).
5
United States v. Storm, 36 F.3d 1289, 1292 (5th Cir. 1994),
cert. denied, 514 U.S. 1084, 115 S.Ct. 1798, 131 L.Ed.2d 725
(1995).
6
18 U.S.C. § 3161(c)(1) (1994).
7
18 U.S.C. § 3161(h)(7) (1994).
8
United States v. Calle, 120 F.3d 43, 46 (5th Cir. 1997)
(citing United States v. Bermea, 30 F.3d 1539, 1567 (5th Cir.),
cert. denied, 513 U.S. 1156, 115 S.Ct. 1113, 130 L.Ed.2d 1077, and
514 U.S. 1097, 115 S.Ct. 1825, 131 L.Ed.2d 746 (1994)), cert.
denied, —— U.S. ——, 118 S.Ct. 1202, 140 L.Ed.2d 330 (1998).
5
to all codefendants.9 Thus, the excludable delay incurred as a
result of one codefendant’s motion practice applies to the speedy
trial time computation of all codefendants.10
Two hundred fifteen days elapsed between Franklin’s initial
appearance on April 2 and the commencement of his trial on November
4. This 215-day time span, however, contains several periods of
excludable delay under section 3161(h). Franklin’s speedy trial
clock was tolled until Milton, his codefendant, made his initial
appearance on August 15 (134 days).11
Thirteen chargeable days passed before the clock was again
tolled on August 29, when Milton filed his motions seeking
extrinsic evidence notice and impeaching information.12 As these
motions did not require a hearing, and there is no evidence in the
record that they occupied the court’s attention following the
government’s responses, those responses constituted their “prompt
9
Id.
10
See 18 U.S.C. § 3161(h)(1)(F) (1994) (excluding from speedy-
trial computations the “delay resulting from any pretrial motion,
from the filing of the motion through the conclusion of the hearing
on, or other prompt disposition of, such motion”); Bermea, 30 F.3d
at 1566 (“The Supreme Court has held that § 3161(h)(1)(F) tolls the
speedy trial clock during all delays between the filing of a motion
and the conclusion of the hearing on that motion, regardless of
whether the delay in holding that hearing is ‘reasonably
necessary’”) (citing Henderson v. United States, 476 U.S. 321, 330,
106 S.Ct. 1871, 1877, 90 L.Ed.2d 299 (1986)).
11
See supra notes 7-8 and accompanying text.
12
See supra notes 9-10 and accompanying text.
6
disposition” under section 3161(h)(1)(F).13 Although the government
did not file its responses to both motions until September 23, the
court had ordered the government to respond by September 9, and the
government concedes that the speedy trial clock recommenced on the
court-ordered response date.
Following September 9, twenty more chargeable days elapsed
before the speedy trial clock was again tolled on September 30,
when the government filed its motion in limine seeking to offer
extrinsic-acts evidence at Franklin’s trial. As the court deferred
a hearing on this motion until trial, no additional speedy trial
time expired before Franklin’s trial began. Under the foregoing
analysis, Franklin’s speedy trial clock ran for only thirty-three
days before his case was tried.
Franklin initially challenges the district court’s ruling on
his speedy trial motion on the ground that neither the government’s
nor Milton’s motion practice produced excludable delays under
section 3161(h)(1)(F). He claims that (1) the motions filed on
Milton’s behalf should not be afforded a tolling effect as they
were merely pro forma discovery requests that did not invite the
district court’s intervention, and (2) as the government’s motions
seeking evidentiary rulings were deferred by the court until trial,
13
See United States v. Ortega-Mena, 949 F.2d 156, 159 (5th Cir.
1991) (“Absent any indication that the court actually took [the
Brady] motion under advisement following the Government’s response,
we will attribute only [the government’s response time] to [the
motion’s] ‘prompt disposition.’”).
7
they did not consume the court’s attention, and their pendency
should likewise produce no excludable delay.
Franklin’s contentions are without merit. In support of his
first position, he relies on a Sixth Circuit case which (a) dealt
with discovery motions filed pursuant to FED. R. CRIM. P. 16, and (b)
predicated its no-tolling finding on the fact that there was no
evidence in the record that the district court ever ruled on the
motions at issue.14 It is clear in the instant case that the
district court, having ordered the government to respond to
Milton’s motions, took those motions under advisement. In
advancing his second position, Franklin relies on case law from
another circuit, ignoring well-settled Fifth Circuit case law to
the contrary.15
Franklin next challenges the attribution of the Milton delays.
He claims that the excludable delays associated with Milton’s
14
See United States v. Mentz, 840 F.2d 315, 329 (6th Cir. 1988)
(“Because the district court never held a hearing or ruled on the
motion, and there is no other indication that the motion was
‘actually under advisement,’ the motion did not trigger the
statutory exclusions for delay occasioned by the filing of a
pretrial motion.”).
15
See Bermea, 30 F.3d at 1568 (“We have observed that pending
motions carried for hearing just before or during trial will toll
the speedy trial clock indefinitely.”); United States v. Santoyo,
890 F.2d 726, 728 (5th Cir. 1989) (excluding from speedy trial
computation the eight-month interval between the filing of
defendant’s motion in limine and the hearing on that motion,
notwithstanding the fact that, soon after the motion was filed, the
district court announced its intention to defer the hearing until
trial), cert. denied, 495 U.S. 959, 110 S.Ct. 2567, 109 L.Ed.2d 749
(1990).
8
apprehension and prosecution cannot be attributed to him under
subsection (h)(7), as those delays were unreasonable. As grounds
for unreasonableness, Franklin observes that Milton filed his
notice of intent to plead guilty only two days before the court set
Franklin’s trial date (September 24 and 26, respectively). The
sequence of these events, submits Franklin, belies the notion that
the government intended to join Milton for trial with Franklin. As
the government never intended to try the two together, reasons
Franklin, there is no justification for imputing the Milton delays
to him for speedy trial purposes. Franklin concludes that the
government’s misleading pretrial posturing, coupled with the sheer
length of his detention time (215 days), suffices to establish
unreasonableness under subsection (h)(7).
Franklin’s argument presents this court with its first
opportunity to consider the criteria by which the reasonableness of
delays eligible for exclusion under subsection (h)(7) is measured.
The plain language of that section indicates that its exclusions
are subject to a reasonableness limitation, and such a limitation
is widely recognized by other circuits.16 The Second and Sixth
16
See United States v. Salerno 108 F.3d 730, 735 (7th Cir.),
cert. denied, —— U.S. ——, 117 S.Ct. 2517, 138 L.Ed.2d 1018 (1997);
United States v. Fuller 942 F.2d 454, 457 (8th Cir. 1991) (“Motions
filed by one defendant in a multi-defendant case count as motions
filed by all of the defendants, and the reasonable time taken to
determine those motions will count as excludable time for all
defendants.”) (emphasis added), cert. denied, 502 U.S. 914, 112
S.Ct. 315, 116 L.Ed.2d 257 (1991), and 502 U.S. 1039, 112 S.Ct.
890, 116 L.Ed.2d 793 (1992)); United States v. Monroe, 833 F.2d 95,
100 (6th Cir. 1987) (exploring the reasonableness of the delay
9
Circuits acknowledge that excludable delays arising out of one
defendant’s prosecution must be reasonable to be attributed to a
codefendant, but refuse to allow a defendant who has failed to move
for severance to challenge the reasonableness of the delay on
appeal.17 The more common approach, and the one taken by the
Eleventh Circuit, is to view a defendant’s failure to move for
severance as relevant to, but not per se dispositive of, the
reasonableness inquiry.18
We choose to adopt the Eleventh Circuit’s methodology for
occasioned by one codefendant’s pretrial motions in determining
whether that delay was properly excludable as to the other
codefendant); United States v. Theron, 782 F.2d 1510, 1514 (10th
Cir. 1986); United States v. Darby, 744 F.2d 1508, 1517 (11th Cir.
1984), cert. denied, 471 U.S. 1100, 105 S.Ct. 2322, 85 L.Ed.2d 841
(1985); United States v. Novak, 715 F.2d 810, 814-15 (3d Cir.
1983), cert. denied, 465 U.S. 1030, 104 S.Ct. 1293, 79 L.Ed.2d 694
(1984).
17
United States v. Vasquez, 918 F.2d 329, 336-37 (2d Cir.
1990); United States v. Culpepper, 898 F.2d 65, 67 (6th Cir.),
cert. denied, 498 U.S. 856, 111 S.Ct. 155, 112 L.Ed.2d 120 (1990).
18
See United States v. Olivo, 69 F.3d 1057, 1062 (10th Cir.
1995) (considering whether appellant “zealously pursued a speedy
trial” as bearing on the reasonableness determination, and finding
that this factor weighed in favor of the subsection (h)(7)
exclusion in light of the fact that appellant did not seek a
severance), cert. denied, —— U.S. ——, 117 S.Ct. 265, 136 L.Ed.2d
189 (1996); United States v. Tobin, 840 F.2d 867, 870 (11th Cir.
1988) (noting, but not regarding as dispositive, the defendant’s
failure to move for severance in determining that the eight month
time span during which authorities endeavored to apprehend a
codefendant constituted a reasonable, and therefore attributable,
delay); United States v. Dennis, 737 F.2d 617, 621 (7th Cir.)
(stating that “whether delay [is] reasonable will depend on the
facts of each case,” and considering appellant’s failure to move
for severance to be a significant fact), cert. denied, 469 U.S.
868, 105 S.Ct. 215, 83 L.Ed.2d 145 (1984).
10
assessing subsection (h)(7) exclusions, electing to gauge the
reasonableness of delay on a case by case basis, given the fact-
bound nature of the inquiry, and to view a severance request (or
the absence thereof) as but one factor to be considered in
evaluating challenges to excludable delay attribution under
subsection (h)(7). This approach admits of two inquiries,
depending on the nature of the challenge. The reasonableness of
delay can be measured in reference to (a) “the totality of the
circumstances prior to trial,” or (b) the actual prejudice suffered
by the appellant as a result of the subsection (h)(7) exclusion.19
Employing the former analysis, the Eleventh Circuit asks
whether the delay was necessary to achieve its purpose.20 In
examining the necessity of the delay, proper consideration should
be given to the purpose behind subsection (h)(7) —— “accommodating
the efficient use of prosecutorial and judicial resources in trying
multiple defendants in a single trial.”21
19
Tobin, 840 F.2d at 870.
20
Id. For example, “a period of delay is reasonable under
[subsection (h)(7)] if it appears necessary in order for the trial
court to dispose of the underlying motions, ‘for the court to
conduct previously scheduled trials,’ or ‘for [codefendants] to
obtain new counsel.’” Darby, 744 F.2d at 1518.
21
Theron, 782 F.2d at 1514. In United States v. Varella, 692
F.2d 1352 (11th Cir. 1982), cert. denied, 463 U.S. 1210, 103 S.Ct.
3542, 77 L.Ed.2d 1392 (1983), and 464 U.S. 838, 104 S.Ct. 127, 78
L.Ed.2d 124 (1983), the Eleventh Circuit noted the preference for
joint trials embodied in the Act. In denying a challenge to
subsection (h)(7) exclusions, the Varella court observed that
“[c]ongress recognized the utility of multi-defendant trials to
effectuate the prompt efficient disposition of criminal justice.
11
With respect to the prejudice analysis, relevant
considerations include whether the delay impaired the appellant’s
ability to defend himself or resulted in excessive pretrial
incarceration.22 A defendant’s failure to move for severance, or
otherwise to pursue a speedy trial in the district court, can
undermine prejudice allegations made on appeal.23
When we apply this methodology to the instant case, Franklin’s
subsection (h)(7) challenge fails. The delay in bringing Milton to
trial was properly excludable from Franklin’s seventy-day speedy
trial timetable as it was necessary to achieve a joint trial.24 The
utility of a joint trial is particularly compelling here, as the
defendants were charged with a single conspiracy so that the
government could be expected to “recite a single factual history,
put on a single array of evidence, and call a single group of
It felt that the efficiency and economy of joint trials far
outweighed the desirability of granting a severance where the
criterion was simply the passage of time.” Id. at 1359. See also
Novak, 715 F.2d at 814 (examining the legislative history of
subsection (h)(7) and finding “a strong congressional preference
for joint trials and an intention that delays resulting from the
joinder of codefendants be liberally excluded”).
22
Tobin, 840 F.2d at 870; Darby, 744 F.2d at 1519.
23
See Tobin, 840 F.2d at 870, Olivo, 69 F.3d at 1062, Dennis,
737 F.2d at 621 (all noting as significant the defendant’s failure
to seek a severance).
24
See Tobin, 840 F.2d at 870 (finding that eight-month delay
produced by government’s unsuccessful attempt to bring a
codefendant to trial was reasonable as it was necessary to achieve
a joint trial); Dennis, 737 F.2d at 621.
12
witnesses.”25 The fact that Franklin’s case was set for trial soon
after Milton filed his notice of intent to enter a guilty plea does
not persuade us that the government disingenuously pursued a joint
trial. Rather, it seems eminently more logical to infer from this
sequence of events that the government conscientiously sought to
keep its options open, conserving judicial resources by preserving
the possibility of a joint trial in the event that plea
negotiations with Milton failed. This conclusion also follows from
the diligence with which the government sought Milton’s
apprehension, to which Franklin stipulated at the hearing on his
speedy trial motion.
Franklin’s prejudice allegation is equally unpersuasive. He
claims that his extended pretrial incarceration limited his access
to counsel —— ostensibly establishing that the delay resulting from
Milton’s apprehension and motion practice impaired Franklin’s
ability to defend himself —— but he offers nothing in support of
this bald contention. To the extent that Franklin relies
exclusively on the length of his pretrial incarceration as grounds
for prejudice, we believe that any prejudice in this sense was
insufficient to render the Milton delay unreasonable,26 especially
in light of the fact that Franklin never sought to sever his case
25
United States v. Mayes, 917 F.2d 457, 460 (10th Cir. 1990)
(quoting United States v. Mobile Materials, Inc., 871 F.2d 902, 916
(10th Cir. 1989)), cert. denied, 498 U.S. 1125, 111 S.Ct 1087, 112
L.Ed.2d 1192 (1991).
26
See Darby, 744 F.2d at 1519.
13
from Milton’s.
We conclude that neither the delay in bringing Milton to trial
nor the delay occasioned by Milton’s motion practice was
unreasonable. The district court did not err in denying Franklin’s
speedy trial motion as the Milton delays were properly excluded
from Franklin’s speedy trial period under subsection (h)(7).
Lastly, with respect to the subsection (h)(7) exclusions,
Franklin contends that the government and the court effectively
severed the cases at the pretrial phase by sealing the Milton
proceedings; as those proceedings were sealed, contends Franklin,
he had no way of determining whether Milton had (a) made an initial
appearance, (b) submitted any pretrial motions, or (c) entered into
a plea agreement. Under such circumstances, he urges, attributing
the Milton delays to him would be unfair.
Franklin’s argument is unconvincing. As it stated in its
motion to seal the Milton proceedings, the government had a
legitimate interest in encouraging Milton’s cooperation with law
enforcement authorities. Sealing the proceedings promoted this
interest by minimizing the risk that Milton would be threatened,
harassed, or otherwise discouraged from assisting in the
investigation and prosecution of others. Although Franklin may
have been unaware of the precise movements of his speedy trial
clock, he was not rendered helpless to pursue a speedy trial.
B. MATERIAL VARIANCE
Evidentiary rulings are reviewed for abuse of discretion and
14
may be reversed only if the ruling affects a substantial right of
a party.27
At Franklin’s trial, government witness Paul Ard gave
testimony, pursuant to a plea agreement, concerning Franklin’s
participation in drug transactions that occurred in “late 1992,”
emanating from the Baton Rouge residence identified in the
indictment. Ard testified that he began conducting drug
transactions with Milton, Dozier, Harris, and Franklin after Harris
asked him about the possibility of selling crack cocaine in St.
Tammany Parish. Following that conversation, Ard visited the Baton
Rouge residence weekly, obtaining various amounts of crack
cocaine —— as much as one kilogram in one visit —— which he would
then resell. According to Ard’s testimony, Franklin was always
present during these visits, typically assisting in the
transactions by notifying Harris of Ard’s arrival (“paging”
Harris), counting the money that would exchange hands, and
retrieving the drugs from the area of the house where they were
stored. Ard also testified that, on one occasion at another
residence, he obtained eighteen ounces of crack cocaine directly
from Franklin.
Franklin argues that, in offering Ard’s testimony, the
government presented the jury with evidence of two distinct
conspiracies, at variance with the indictment. Franklin maintains
27
Marcel v. Placid Oil Co., 11 F.3d 563, 566 (5th Cir. 1994).
15
that, as the indictment charged him with a single drug-trafficking
conspiracy beginning “in or before January 1993,” Ard’s testimony
necessarily established a separate conspiracy because it concerned
events that took place in 1992.
A reversal based on variance between indictment and proof
requires two findings: (1) that the evidence at trial actually
proved two separate conspiracies, and (2) that the variance
affected a substantial right of the appellant.28 We need not reach
the prejudice inquiry as we conclude that the jury was only
presented with proof of a single conspiracy. Ard’s testimony
merely evidenced his participation in the charged conspiracy. As
a distributor in the operation, Ard was a member of the drug-
trafficking scheme. All the participants knew one another, shared
a common goal, and were jointly involved in the fundamental phases
of a single enterprise.29 Moreover, under the plain language of the
indictment, the events recounted by Ard fell within the charged
time frame, beginning “in or before” January 1993. The district
court did not abuse its discretion in permitting Ard’s testimony.
C. SUFFICIENCY OF THE EVIDENCE
In reviewing an insufficiency claim, we determine whether,
based on the totality of the evidence at trial, any rational trier
of fact could have found that the government proved the essential
28
United States v. Winship, 724 F.2d 1116, 1122 (5th Cir.
1984).
29
See id. at 1123.
16
elements of the crimes charged, beyond a reasonable doubt.30 In so
doing, we view the evidence in the light most favorable to the
verdict.31
Franklin argues that the district court erred in denying his
FED. R. CRIM. P. 29 motion for judgment of acquittal, as the evidence
adduced at trial was insufficient to support his conspiracy and
distribution convictions under counts one and five of the
indictment, respectively. Franklin’s contention lacks merit. Our
review of the record reveals substantial evidence demonstrating
Franklin’s involvement in the conspiracy charged in count one.
The record likewise contains sufficient evidence linking
Franklin to the distribution offense charged in count five. That
count is based on the CI’s 10.3-gram crack cocaine purchase,
conducted at the Baton Rouge residence on August 12, 1994. Even
though the CI testified that he obtained the drugs from Dozier and
that he could not recall seeing anyone else at the residence that
day, he also stated that he initiated the transaction by contacting
Franklin who then arranged the exchange. Moreover, the court
instructed the jury on the broad reach of coconspirator liability.32
30
United States v. Davis, 61 F.3d 291, 296 (5th Cir. 1995),
cert. denied, 516 U.S. 1135, 116 S.Ct. 961, 133 L.Ed.2d 883 (1996).
31
Id.
32
See United States v. Wilson, 105 F.3d 219, 221 (5th Cir.)
(“It is well-settled that a party to a conspiracy may be held
liable for the substantive offenses of a co-conspirator as long as
the acts were reasonably foreseeable and done in furtherance of the
conspiracy regardless of whether he had knowledge of or
17
The district court did not err in denying Franklin’s FED. R. CRIM.
P. 29 motion.
D. PUTATIVE SENTENCING ERROR
We review factual findings made by a district court for
sentencing purposes under the clearly erroneous standard, and
review the district court’s legal application of the United States
Sentencing Guidelines (“the Guidelines”) de novo.33
Paragraph nine of the PSR credited Franklin with the
distribution of 1,637.87 grams of crack cocaine, bringing the total
weight of the drugs for which he was responsible to 1,662 grams,
and increasing his base offense level under section 2D1.1(a)(3) of
the Guidelines from 28 to 38.34 The information on which the
paragraph nine amounts were based was supplied by Ard, in an
interview conducted pursuant to the presentence investigation on
November 18, 1996. During this interview, Ard described the same
transactions to which he had testified at trial, noting Franklin’s
participation and the amount of crack cocaine involved in each.
Franklin argues that paragraph nine quantities should not have
participated in the substantive acts.”), cert. denied, —— U.S. ——,
118 S.Ct. 133, 139 L.Ed.2d 82 (1997).
33
United States v. Asibor, 109 F.3d 1023, 1040 (5th Cir.),
cert. denied, —— U.S. ——, 118 S.Ct. 254, 139 L.Ed.2d 182 (1997),
and —— U.S. ——, 118 S.Ct. 638, 139 L.Ed.2d 617 (1997).
34
U.S. SENTENCING GUIDELINES MANUAL § 2D1.1 (a)(3) (1997)
[hereinafter U.S.S.G.]. The Guidelines that are in effect on the
date the defendant is sentenced determine the sentence to be
imposed. 18 U.S.C. § 3553(a)(4) (1994). Franklin was sentenced in
March of 1997.
18
been considered in assessing his base offense level, as those
quantities lack “sufficient indicia of reliability.”35 In support
of his position, Franklin observes that paragraph nine is
predicated on the “highly suspect” account of a convicted drug
dealer who could have exaggerated Franklin’s involvement in the
hope of garnering more favorable treatment from law enforcement
officials. Moreover, maintains Franklin, Ard’s account is not
substantiated by scientific analysis or physical evidence (of drugs
or drug money), and it described events (a) occurring almost five
years prior to sentencing (b) in which Franklin was “merely
present.”
Franklin’s contentions are not well taken. Comment 12 to
section 2D1.1 makes it clear that neither physical evidence nor
scientific analysis of the drugs involved in a given offense is
required in determining the quantity to be used in setting a
defendant’s base offense level. This commentary authorizes the
court to approximate the quantity of drugs involved when there is
no drug seizure.36 The court’s approximation must simply bear
“sufficient indicia of reliability to support its probable
35
Franklin also challenges paragraph nine on the ground that
the information provided by Ard and embodied in that paragraph
concerned events predating the conspiracy charged in the
indictment. We need not address this argument as it has been
disposed of in our rejection of Franklin’s material variance claim.
36
See U.S.S.G. § 2D1.1, cmt. 12 (“Where there is no drug
seizure or the amount seized does not reflect the scale of the
offense, the court shall approximate the quantity of the controlled
substance.”).
19
accuracy.”37 PSRs are presumptively reliable.38 Absent rebuttal
evidence demonstrating inaccuracy, which evidence the defendant
bears the burden of producing, district courts are entitled to rely
on PSRs.39
Franklin has failed to produce competent evidence of paragraph
nine’s inaccuracy. His conjectural assertions regarding Ard’s
potential motives are insufficient to rebut the PSR’s presumptive
reliability, especially considering the fact that the jury credited
Ard’s testimony —— the selfsame information on which paragraph nine
is based —— in convicting Franklin on all counts. With respect to
his “mere presence” contention, we remind Franklin that the drugs
used in calculating a defendant’s base offense level include both
those drugs in the distribution of which he was directly involved,
and those drugs foreseeably distributed in furtherance of the
conspiracy.40
Franklin next challenges the court’s assessment of a two point
37
See U.S.S.G. § 6A1.1(a).
38
United States v. Patten, 40 F.3d 774, 777 (5th Cir. 1994),
cert. denied, 515 U.S. 1132, 115 S.Ct. 2558, 132 L.Ed.2d 811
(1995).
39
Id.
40
See U.S.S.G. § 1B1.3(a)(1)(B); United States v. Leal, 74 F.3d
600, 607 (5th Cir. 1996) (noting that the quantity of drugs
involved in an offense includes “both drugs with which the
defendant was directly involved, and drugs that can be attributed
to the defendant in a conspiracy as part of his ‘relevant conduct’
under section 1B1.3(a)(1)(B) of the Guidelines.”) (citing United
States v. Carreon, 11 F.3d 1225, 1230 (5th Cir. 1994)).
20
firearm possession enhancement under section 2D1.1(b)(1) of the
Guidelines.41 The only evidence that he possessed a dangerous
weapon during the drug-trafficking venture, contends Franklin, is
found in Ard’s statement to the investigating probation officer.
Franklin suggests that the information provided by Ard pursuant to
the presentence investigation cannot provide the foundation for a
section 2D1.1(b)(1) enhancement as that information does not
indicate whether Franklin had knowledge of the firearms or whether
they were operable.
We need not belabor this point, as Franklin’s arguments are
meritless, and ample evidence exists in the record supporting the
firearm possession enhancement. Ard testified at trial that he
routinely saw Franklin carrying a pistol in his waistband, that he
had seen firearms strewn about the Baton Rouge residence, and that
Harris and Franklin had, on one occasion, proudly displayed
recently purchased firearms at the residence. Firearm
inoperability does not preclude section 2D1.1(b)(1)’s application.42
Franklin also contends that he was entitled to an offense
level reduction under section 3B1.2 of the Guidelines for his
mitigating role in the drug-trafficking venture as a minimal or, in
the alternative, minor participant.43 He claims that there is no
41
U.S.S.G. § 2D1.1(b)(1).
42
United States v. Paulk, 917 F.2d 879, 882 (5th Cir. 1990).
43
U.S.S.G. § 3B1.2.
21
evidence indicating that he profited substantially from the drug
transactions or that he was anything other than peripherally
involved in the alleged activities. Again, we need not belabor
this point as ample evidence was adduced at trial demonstrating
that Franklin played a significant role, if not an integral one, in
the conspiracy. We cannot say that the district court clearly
erred in determining that Franklin was not “substantially less
culpable than the average defendant.”44
Finally, Franklin challenges the manner in which the district
court calculated his criminal history score. The court assessed
two criminal history points under section 4A1.1(d) of the
Guidelines because Franklin was on probation for a state court
burglary conviction while he participated in the drug-trafficking
conspiracy.45 The court also assessed three criminal history points
under section 4A1.1(a) of the Guidelines because, following
Franklin’s federal conviction, the state court revoked his
probation and reinstated his sentence on the burglary conviction.46
Franklin argues that the three point enhancement for his prior
sentence was erroneous because that sentence was originally
suspended, and his conviction for the instant federal offense was
44
United States v. Brown, 54 F.3d 234, 241 (5th Cir. 1995) (“A
downward adjustment under section 3B1.2 is generally appropriate
only where a defendant was ‘substantially less culpable than the
average participant.’”) (citations omitted).
45
U.S.S.G. § 4A1.1(d).
46
U.S.S.G. § 4A1.1(a).
22
the sole reason for that suspension’s withdrawal. Because the
conduct supporting the criminal conviction in this case is the same
conduct that produced the state probation revocation, he maintains,
a criminal history assessment for that revocation constitutes
unauthorized double counting —— two or more upward adjustments
premised on the same conduct.
We are not convinced that the federal offense conduct and the
conduct resulting in the probation revocation are the same.
Franklin’s probation was revoked for violating the conditions of
his probation, not for his instant conviction; there is no evidence
that the revocation turned solely on Franklin’s federal
conviction.47 As such, double counting cannot be inferred. And,
more importantly, even if it could, “double counting is legitimate
where a single act is relevant to two dimensions of the Guideline
analysis.”48
47
The PSR indicates that Franklin’s probation officer for the
state burglary conviction had taken revocatory action dating back
to July 27, 1994, when he filed an affidavit with the state court
alleging that Franklin had violated conditions of his probation by:
(1) failing to report as instructed; (2) failing to submit monthly
supervision reports; (3) failing to pay restitution; and (4)
failing to obtain substance abuse evaluation. A revocation hearing
was set for August 25, 1994, but Franklin failed to appear at the
hearing. A warrant was issued on December 13, 1994, and Franklin
was arrested on March 27, 1996 by federal law enforcement
officials. A probation revocation hearing was held on November 12,
1996, following Franklin’s conviction in federal court. The
transcript of that hearing reveals that Franklin’s probation was
revoked based on his acknowledgment of the violations noted above.
48
United States v. King, 981 F.2d 790, 796 (5th Cir.) (quoting
United States v. Campbell, 967 F.2d 20, 25 (2d Cir. 1992)), cert.
denied, 508 U.S. 953, 113 S.Ct. 2450, 124 L.Ed.2d 666 (1993). As
23
III
CONCLUSION
For the foregoing reasons, the judgment of the district court
is, in all respects,
AFFIRMED.
the King court noted:
[I]t may be appropriate to count a single
factor both in assessing the defendant’s
criminal history category and in calculating
the applicable offense level since the two
measure different things. The offense level
represents a judgment as to the wrongfulness
of the particular act. The criminal history
category principally estimates the likelihood
of recidivism.
Id. (quoting Campbell, 967 F.2d at 24) (citations omitted).
24