United States v. LaFreniere

United States Court of Appeals
For the First Circuit
____________________
No. 99-1318

UNITED STATES,
Appellee,

v.

DANIEL LAFRENIERE, a/k/a Diablo Dan,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

____________________
Before

Boudin and Lipez, Circuit Judges,

Casellas* District Judge.

_____________________

Michael J. Cruz, by appointment of the Court, with whom
Bernard & Cruz, was on brief for appellant Daniel LaFreniere.
Kirby A. Heller, Attorney, Department of Justice, with whom
Donald K. Stern, United States Attorney, and Andrew Levchuk,
Assistant U.S. Attorney, were on brief, for appellee.

____________________

January 2, 2001

____________________
_____________________
* Of the District of Puerto Rico, sitting by designation.

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 CASELLAS, District Judge. A jury convicted appellant Daniel

Lafreniere1 (hereinafter “Lafreniere”) of conspiracy to possess with

intent to distribute and to distribute heroin. The district court

sentenced him to 120 months in prison, followed by 5 years of

supervised release. This appeal ensued. We affirm.

I. BACKGROUND

On October 24, 1997, a federal grand jury returned a second

superseding indictment against Lafreniere and twelve other individuals

charging them with the commission of several offenses stemming from

their involvement in the Connecticut and Massachusetts chapters of the

Diablos Motorcycle Club (hereinafter the “Diablos,” or the “Club”).

Lafreniere was charged, either alone or in combination with others,

with conspiracy to commit racketeering, 18 U.S.C. § 1962(b) (count 1),

and actually committing racketeering, id. (c) (count 2); interstate

transportation of stolen motor vehicles, id. § 2312 (counts 24, 26 and

28); possession and sale of stolen motor vehicles, id. § 2313 (counts

25, 27 and 29); conspiracy to possess with intent to distribute and to

distribute heroin, 21 U.S.C. § 846 (counts 31 and 32); carrying a

firearm during and in relation to a drug-trafficking offense, 18 U.S.C.

§ 924(c) (counts 35 and 36); and possession and transfer of an

1
Lafreniere was tried and convicted with a number of other
defendants. Their appeals were heard at the same time, and are
addressed in separate decisions. United States v. Houle, No. 99-1310
(1st Cir. filed February 10, 1999); United States v. Baltas, No. 99-
1574 (1st Cir. filed April 2, 1999).

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unregistered sawed-off shotgun, id. § 5861(d) (count 39).

The jury acquitted Lafreniere on all counts with the

exception of count 32. He presents two related issues on appeal.

First, he assigns fault to the district court in denying his motion for

judgment of acquittal, insisting that the court should have found that

he was entrapped as a matter of law. Second, he asserts, for the first

time on appeal, that the district court erred in instructing the jury

about the predisposition element of the defense of entrapment. We

sketch the facts contained in the record in the light most hospitable

to the jury’s verdict, see United States v. González-Vázquez, 219 F.3d

37, 40 (1st Cir. 2000), adding detail as it becomes necessary to the

discussion of the issues at hand.

The Diablos started out in San Bernardino, California in the

1960's, and from there expanded to the rest of the country. At the

times relevant to this appeal, the Diablos’s national presence included

chapters in California, Connecticut, Florida, Indiana, Massachusetts,

and New Hampshire. They had a written constitution, which conditioned

membership, among other things, upon being at least 21 years old,

Caucasian, and owning a firearm and a Harley-Davidson motorcycle of a

particular size. Membership was by invitation only, and women and

African-Americans were specifically banned. Members first had to serve

as “prospects,” a role similar to that of a pledge in a fraternity,

before being eligible for full membership. The Diablos had both

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national and local governing structures.

One of the prosecution’s star witnesses was William Alvis

(hereinafter “Alvis”). Prior to becoming a Diablo, Alvis had been

affiliated with the Barbarians Motorcycle Club, where he became

knowledgeable of the biker culture and language. While associated with

the Barbarians, Alvis was charged with committing various crimes

unrelated to the instant indictment, and eventually began cooperating

with the government. He infiltrated the Diablos at the FBI’s behest.

At trial, Alvis testified that one important characteristic

of the Diablos was their shared sense of brotherhood. Alvis gained the

trust and confidence of the Diablos, and with his familiarity with the

biker culture, eased his way into the internal affairs of the

organization. He developed close relationships with several members of

the Club, particularly with various members of the Connecticut and

Massachusetts chapters, ultimately becoming vice president of the

latter. Simply put, Alvis was the FBI’s “eyes and ears inside of the

Diablos organization.”

As a result of his status within the Diablos, Alvis was able

to gather for the FBI valuable information about the Club’s structure

and daily operations. He also introduced several undercover agents

into the Club, and, with their help, put together a number of criminal

schemes involving the Diablos. Among these schemes were two reverse-

sting heroin deals. The government’s evidence of the circumstances

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surrounding these schemes consisted mainly of Alvis’s testimony at

trial. Following is a summary of this evidence.

At a meeting held in late July of 1995, Alvis, then treasurer

of the Massachusetts chapter, informed its members that the chapter was

in a bad financial situation and was unable to meet its expenses.

Specifically, Alvis told the members that they would probably be

evicted from the clubhouse because the rent was in arrears. To

alleviate the situation, Alvis proposed that some members aid him in a

drug transaction. He told the Diablos that he needed them to “[r]un

security for [a] transportation of heroin.” He also explained that

each participant would be paid $500, which money would be “invested .

. . back into the Club.”

Lafreniere, who was among those present at the meeting,

agreed to take part in the plan. In expressing his acquiescence,

Lafreniere, who had already participated in a similar deal about a

month earlier, stated, matter-of-factly: “I already did one of these

things.”

II. DISCUSSION

A. Entrapment as a Matter of Law

Entrapment consists of two prongs: “(1) improper Government

inducement of the crime, and (2) lack of predisposition on the part of

the defendant to engage in the criminal conduct.” United States v.

Gamache, 156 F.3d 1, 9 (1st Cir. 1998). Once the defendant meets his

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initial burden of showing entitlement to an instruction on the defense,

“the burden shifts to the government to prove beyond a reasonable doubt

either that there was no undue government pressure or trickery or that

the defendant was predisposed.” United States v. Acosta, 67 F.3d 334,

338 (1st Cir. 1995). “As a matter of law, entrapment cannot flourish

unless both elements of the defense . . . coincide. The defense fails

if the jury is persuaded beyond a reasonable doubt that either is

lacking.” United States v. Gifford, 17 F.3d 462, 468 (1st Cir. 1994)

(citation, internal quotation marks, alterations and footnote omitted).

We review de novo Lafreniere’s claim that the district court

should have granted his motion for judgment of acquittal because he was

entrapped as a matter of law, applying the traditional sufficiency-of-

the-evidence standard.2 See Acosta, 67 F.3d at 338; Gifford, 17 F.3d

at 467. Thus, we review all the evidence, direct and circumstantial,

in the light most charitable to the prosecution, drawing all reasonable

inferences consistent with the verdict, and eschewing credibility

judgments, to determine whether a rational jury could have found the

defendant guilty beyond a reasonable doubt. See, e.g., United States

v. Marrero-Ortiz, 160 F.3d 768, 772 (1st Cir. 1998); United States v.

Laboy-Delgado, 84 F.3d 22, 26 (1st Cir. 1996). The crux of the issue

is whether “the jury reasonably could have thought that this was not a

2
Since the government does not question Lafreniere’s entitlement
to an entrapment charge, we go directly to the sufficiency-of-the-
evidence challenge.

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case in which government agents implanted in the mind of an innocent

person the disposition to commit the alleged offense and induced its

commission in order that they may prosecute.” Gifford, 17 F.3d at 470

(citation, internal quotation marks and alterations omitted).

Lafreniere first alleges improper inducement. He argues that

Alvis spurred him to participate in the drug deal by exploiting their

bond as Diablos and by stressing the financial hardships of the

Massachusetts chapter. It is settled that not all inducement is

unlawful; only that which is “improper” is considered “inducement” for

purposes of entrapment. See United States v. Gendron, 18 F.3d 955, 961

(1st Cir. 1994). Inducement “consists of an ‘opportunity’ plus

something else—typically, excessive pressure by the government upon the

defendant or the government’s taking advantage of an alternative non-

criminal type of motive.” Id. In the case at bar, the evidence

presented to the jury reasonably established that no such pressure was

brought upon Lafreniere. Alvis merely explained the Club’s financial

situation to its members and presented a plan, albeit an illegal one,

to alleviate it. While in doing so Alvis provided Club members with an

opportunity to commit a crime, there was nothing else to it.

Lafreniere urges us to consider Sorrells v. United States,

287 U.S. 435 (1932) as an example of the “subtle nature of improper

inducement,” which he claims he was subjected to. According to him,

“[d]espite the layman’s belief that entrapment requires aggressive and

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coercive behavior on the part of a government agent, the facts in

Sorrells provide effective illustration of an inducement which went

beyond merely providing the defendant with an opportunity to commit a

crime.” Id.

Sorrells involved a conviction under the National Prohibition

Act. The defendant, a World War I veteran, was visited by a

prohibition agent posing as a tourist, who, as it turned out, was also

a war veteran. Playing upon their common experiences, the agent twice

asked the defendant for some liquor without result. Upon the agent’s

third request, the defendant gave in. At trial, the defendant alleged

entrapment, but the court refused to sustain the defense ruling that,

as a matter of law, there had been no entrapment. The circuit court

affirmed; the Supreme Court reversed and remanded.

Contrary to Lafreniere’s contention, the Court in Sorrells

did not rule that the defendant had been entrapped as a matter of law,

but “that upon [the] evidence produced . . . the defense of entrapment

was available and that the trial court was in error in holding that as

a matter of law there was no entrapment and in refusing to submit the

issue to the jury.” Id. at 452 (emphasis added). The Court found that

the agent had “lured” the defendant “by repeated and persistent

solicitation in which he succeeded by taking advantage of their

experiences as companions in arms in the World War.” Id. at 441. No

such insistence occurred in this case.

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 Lafreniere asserts, nonetheless, that Alvis “purposefully

took advantage of the emotional bond” between them to induce him. At

trial, Alvis acknowledged having used Lafreniere’s “trust,” “loyalty”

and “affection” to get him involved in the drug deal. Yet such

cunning, without more, is not impermissible. See United States v.

Young, 78 F.3d 758, 761 (1st Cir. 1996) (rejecting “the proposition

that friendship, without a plea predicated upon friendship, suffices

legally as inducement.”); Sorrells, 287 U.S. at 441 (“Artifice and

stratagem may be employed to catch those engaged in criminal

enterprises.”). While Alvis may have led Lafreniere to believe that

the plan would benefit the Club, he did not twist his arm to make him

take part in it. The evidence reasonably supports a finding that

rather than an “unwary innocent,” Lafreniere was an “unwary criminal.”

Sherman v. United States, 356 U.S. 369, 372 (1958).

Our conclusion that Lafreniere was not wrongfully induced

suffices to dispose of his claim that he was entrapped as a matter of

law. We note, nonetheless, that the evidence also supports a finding

that he did not lack the requisite predisposition. In this connection

we ask “how the defendant likely would have reacted to an ordinary

opportunity to commit the crime,” Gendron, 18 F.3d at 962, taking into

consideration factors such as (1) Lafreniere’s character or reputation;

(2) whether the initial suggestion to commit the crime was made by the

government; (3) whether Lafreniere was engaged in criminal activity for

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profit; (4) whether he showed reluctance to commit the offense, which

was overcome by governmental persuasion; and (5) the nature of such

persuasion or inducement, see Gamache, 156 F.3d at 9-10.

It is not disputed that Alvis initially suggested the drug

deal as a way to generate money for the Club. Also, Lafreniere did not

have a criminal record, particularly as to drug trafficking. The

relevance of these circumstances, however, is markedly outweighed by

more substantial factors. First and foremost, Lafreniere showed no

reluctance to engage in the heroin transaction; he readily agreed to

the plan. This factor, in itself, can “adequately evince an

individual’s predisposition.” Gifford, 17 F.3d at 469. Moreover, in

expressing his acquiescence, Lafreniere remarked that he had “already

d[one] one of these things,” in reference to the previous reverse sting

heroin transaction in which he had been involved.3 Second, as already

noted, the government’s inducement was not improper; Alvis did not

coerce, threaten or doggedly pressure Lafreniere to participate in the

3
Lafreniere objects to the consideration of the evidence of this
prior involvement arguing that under Jacobson v. United States, 503
U.S. 540, 549 (1992), a defendant’s predisposition must be determined
prior to any contact with government agents. However:
[T]his is not a correct statement of the law. It is true
that, when a defendant raises a defense of entrapment, the
government must show that he was predisposed to commit the
charged crime prior to his contact with government agents;
however, the government may use the defendant’s behavior
after he was approached by government agents as evidence of
his predisposition prior to meeting the agents.
United States v. Rogers, 121 F.3d 12, 17 (1st Cir. 1997) (citing United
States v. Acosta, 67 F.3d 334, 339 (1st Cir. 1995)).

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transaction. Third, Lafreniere was a regular drug user. He argues

nonetheless that the evidence showed that he was “essentially a hard-

working family man.” However, as we have noted before, “it cannot be

enough where the defendant readily agreed to engage in a criminal act,

to show that he enjoys good reputation.” United States v. Panet-

Collazo, 960 F.2d 256, 259 (1st Cir. 1992) (citation, internal

quotation marks and alterations omitted). In sum, we find that, based

on the evidence, a reasonable jury could have found that Lafreniere was

not entrapped.

B. Instructional Error

Lafreniere next alleges that the trial court erred in

instructing the jury as to the defense of entrapment. Because

Lafreniere did not object to the charge at trial, we review this claim

for plain error. United States v. Alzate, 70 F.3d 199, 201 (1st Cir.

1995). “This type of review entails inquiry into whether affirmance

would skew the fundamental fairness or basic integrity of the

proceeding below in some major respect, so as to result in a

miscarriage of justice.” United States v. Alicea, 205 F.3d 480, 484

(1st Cir. 2000) (citation, internal quotation marks and alterations

omitted). Finding no such circumstances, we affirm the district

court’s instructional decision.

According to Lafreniere, the instruction was “deficient and

misleading in two important ways.” First, he argues, “the instruction

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only directs the jury to evaluate predisposition according to how

quickly the defendant agreed to commit the offense.” Anent to this

challenge, Lafreniere also alleges that the instruction impermissibly

directed the jury “to explore what motives the defendant might [have]

had if he displayed any hesitation or reluctance.”

In instructing the jury on inducement, the trial court

referred to the element of predisposition as follows: “[A] defendant

may not be convicted of a crime if it was the Government that not only

gave the defendant the idea to commit the crime, but also persuaded him

to commit a crime that he was not ready and willing –that is,

predisposed– to commit before Government officials or agents first

spoke with him.” “On the other hand,” the court continued, “if the

defendant was predisposed to violate the law under circumstances making

it desirable in his view to do so, and the Government merely presented

him with those circumstances, that would not constitute entrapment.”

Moreover, the trial court specifically instructed the jury on

predisposition:

You must decide if the Government has satisfied
its burden to prove beyond a reasonable doubt that,
prior to first being approached by Government agents,
the defendant was predisposed, or ready and willing, to
commit the crime in any event.
If you find beyond a reasonable doubt that the
defendant was predisposed –that is, ready and willing–
to commit the offenses charged, and the Government
merely offered a favorable opportunity to commit them,
then you should find that the defendant was not
entrapped.

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 You may consider as evidence on this point a
defendant’s initial willingness or unwillingness to
consider the crime. You may also decide whether
evidence of a defendant’s hesitation at the criminal
suggestions reflects the conscience of an innocent
person or merely the caution of a criminal.

The trial court’s instruction neatly followed our

jurisprudence on entrapment. Specifically, calling upon the jury’s

attention to a defendant’s readiness to commit the crime comported with

our statement in Gifford, to the effect that “ready commission of the

criminal act can itself adequately evince an individual’s

predisposition.” 17 F.3d at 469. Moreover, contrary to Lafreniere’s

contention, the trial court did not solely refer to a defendant’s

readiness to commit the offense; it also directed the jury to examine

whether Lafreniere “was predisposed to violate the law under

circumstances making it desirable in his view to do so,” having been

merely presented with the opportunity to do so, and prior to being

approached by government agents. This part of the court’s instruction

echoes the test set forth in Gendron to assess predisposition; that is,

asking “how the defendant likely would have reacted to an ordinary

opportunity to commit the crime.” 18 F.3d at 962. Furthermore, the

district court instructed the jury that it may “consider as evidence

[of predisposition] a defendant’s initial willingness or unwillingness

to consider the crime.” The court’s indication to the jury to “decide

whether evidence of a defendant’s hesitation at the criminal

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suggestions reflects the conscience of an innocent person or merely the

caution of a criminal,” was also in accordance with our case law. See,

e.g., United States v. Tejeda, 974 F.2d 210, 219 (1st Cir. 1992)

(evaluating whether the defendant’s delay in committing the crime

resulted from “an experienced person’s wariness in dealing with a

comparative stranger”); United States v. Pratt, 913 F.2d 982, 989 (1st

Cir. 1990) (concluding that the defendant’s failure to make telephone

calls and appear at meetings in relation to a drug transaction was

attributable to difficulties in raising the purchase money).

Second, Lafreniere alleges that the instruction failed to

direct the jury to “make any examination of the defendant’s

background.” In this connection, he argues that, due to his

participation in two government-orchestrated heroin transactions, the

instruction should have offered guidance as to which of the

transactions should have been taken into consideration when assessing

predisposition. We find, however, no error in the trial court’s

charge. The jury was specifically instructed to assess predisposition

prior to any contact with government officials. Regarding Lafreniere’s

background, we note that “[w]hile a more precisely tailored instruction

might well have been suitable if specially sought, such refinements

tailoring the language to the situation require that the judge be

advised of the request.” Alzate, 70 F.3d at 201. Reviewing the charge

“as a whole,” in the context of all the evidence presented at trial, we

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fail to find reversible error. Alicea, 205 F.3d at 484.

C. Sentencing

After oral argument was held, letters were transmitted

to the court under Fed. R. App. P. 28(j) calling our attention

to the recent Supreme Court decision in Apprendi v. New Jersey,

— U.S. — (2000), 120 S. Ct. 2348 (2000). While the letters were

transmitted by two of Lafreniere’s co-defendants, we extended an

invitation to Lafreniere and the government to supplement their

briefs addressing the possible relevance of Apprendi and,

assuming that Apprendi applies, addressing the issue of

prejudice. Such memoranda having been filed, the matter is now

properly submitted for disposition.

The Supreme Court in Appprendi held as a matter of

constitutional law that “[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted to a

jury, and proved beyond a reasonable doubt.” 120 S. Ct. at

2362-63. Invoking this rule, Lafreniere seeks to have his

sentence vacated because the amount of the heroin attributed to

him was never submitted to the jury and proved beyond a

reasonable doubt. Because Lafreniere did not raise this issue

below, we review for plain error. See United States v. Mojica-

Báez, 229 F.3d 292, 307 (1st Cir. 2000).

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 Lafreniere makes two arguments on appeal: first, that

the district court imposed a sentence above the lowest statutory

maximum provided by 21 U.S.C. § 841(b)(1)(B); and second, that

the district court erroneously imposed a sentence in excess of

the lowest statutory mandatory minimum.

Lafreniere was convicted of conspiracy to possess with

intention to distribute and to distribute heroin, in violation

of 21 U.S.C. § 846. The amount of heroin attributed to him was

not found by the jury beyond a reasonable doubt. Instead, it

was determined by the district court under a preponderance of

evidence standard at the sentencing hearing. Under this

standard, the district court determined that the transaction

involved from 1 to 3 kilograms of heroin. Based on its findings

the court sentenced Lafreniere to a ten year mandatory minimum

sentence under 841(b)(1)(A).

The statutory framework involved in this case begins

with Section 846, which provides that the penalty for an attempt

or conspiracy to commit a drug trafficking offense shall be the

same as the penalty for the offense that was the object of the

attempt or conspiracy. 21 U.S.C. § 846. The underlying offense

is set out in section 841(a)(1), which makes it unlawful to

“manufacture, distribute, or dispense, or possess with intent to

manufacture, distribute, or dispense, a controlled substance.”

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21 U.S.C. § 841(a)(1). Section 841(b)(1)(A)-(D), in turn,

establishes the penalties applicable to a violation of section

841(a)(1). Section 841(b)(1)(C), the statutory catchall

authorizes a term of imprisonment for a schedule I or II

narcotic, such as heroin, without reference to drug quantity, of

“not more than 20 years.” 21 U.S.C. § 841(b)(1)(C).

Lafreniere first argues that the district court imposed

a sentence above the lowest statutory maximum provided in

Section 841. In support of his argument he relies on the Ninth

Circuit case of United States v. Nordby, 225 F.3d 1053 (9th Cir.

2000). In that case, the jury made no finding as to the

specific amount of marijuana that the defendant possessed with

the intent to distribute. Similarly, the judge determined the

quantity of drugs using the preponderance of evidence standard.

The error occurred when the district court’s finding imposed a

sentence that went beyond the five year maximum for an

undetermined amount of marijuana. Nordby was sentenced to the ten

years under 21 U.S.C. § 841(b)(1)(A)(vii). However, 21 U.S.C. §

841(b)(1)(D) states that “in the case of less than 50 kilograms of

marijuana, except in the case of 50 or more marijuana plants regardless

of weight . . . [the defendant shall] be sentenced to a term of

imprisonment of not more than 5 years.” Id. at 1056-57. Therefore,

the Ninth Circuit found the ten year sentence exceeded the maximum

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allowed for a marijuana conviction under 21 U.S.C. § 841 (b)(1)(D).

Although he does not spell out his argument, it appears that

Lafreniere believes his case is exactly like Nordby, because his

sentence exceeded the statutory maximum provided in 21 U.S.C. §

841(b)(1)(A). However, his reliance is misplaced. First, unlike

Nordby, Lafreniere was convicted of a heroin offense and not a

marijuana offense. Therefore, the five year statutory maximum

provision of Section 841(b)(1)(D), that was exceeded in Nordby, is

inapplicable to the case at bar. As such, the correct “statutory

maximum” for a schedule two substance, like heroin, is found in the

catchall provision of Section 841(b)(1)(C). This section states that

“in the case of a controlled substance in schedule I or II . . . except

as provided in subparagraphs (A),(B), and (D), such person shall be

sentenced to a term of imprisonment of not more than 20 years.” 21

U.S.C. § 841(b)(1)(C). Therefore, since the district court sentenced

Lafreniere to a term of 10 years, well below the maximum of twenty

years, his reliance on Nordby is incorrect.

Lafreniere also argues that the district court erroneously

imposed a sentence in excess of the lowest statutory mandatory minimum,

and invites the court to read Apprendi more broadly to include

mandatory minimums. Under Lafreniere’s proposed reading, any factor

that would increase the mandatory minimum penalty associated with an

offense, albeit within the statutory maximum, would also have to be

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submitted to the jury and proved beyond a reasonable doubt.

The main obstacle to this proposition is Apprendi itself.

The majority in Apprendi declined to overrule their previous decision

in McMillan v. Pennsylvania, 477 U.S. 79 (1965), which authorizes

legislatures to increase minimum penalties based upon non-jury factual

determinations, as long as the penalty imposed does not exceed the

maximum range. See Apprendi, 120 S. Ct. at — n.13. As the Eighth

Circuit noted in Aguayo-Delgado:

If the non-jury factual determination only narrows the
sentencing judge’s discretion within the range already
authorized by the offense of conviction . . ., then the
governing constitutional standard is provided by McMillan.
As we have said, McMillan allows the legislature to raise
the minimum penalty associated with a crime based on non-
jury factual findings, as long as the penalty is within the
range specified for the crime for which the defendant was
convicted by the jury. Apprendi expressly states that
McMillan is still good law . . . .

220 F.3d 926, 933-34 (5th Cir. 2000); see also United States v.

Meshack, 225 F.3d 556, 576-77 (5th Cir. 2000) (approving of a more

limited reading of Apprendi). We believe that this is the proper

construction under existing precedent; and therefore, refuse to apply

Apprendi in cases concerning the mandatory minimums.

Our holding today is that no Apprendi violation occurs

when the district court sentences the defendant within the

statutory maximum, regardless that drug quantity was never

determined by the jury beyond a reasonable doubt. This holding

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is consistent with those of our sister circuits which have had

the opportunity to address challenges similar to the ones

presented by Lafreniere. See, e.g., Meshack, 225 F.3d at 576-77;

Aguayo-Delgado, 220 F.3d at 926; United States v. Gerrow, 2000

WL 1675594, at *2 (11th Cir. Nov. 8, 2000); United States v.

Angle, 230 F.3d 113, 123 (4th Cir. 2000); United States v.

Chavez, 230 F.3d 1089, 1091 (8th Cir. 2000).

III. CONCLUSION

For the foregoing reasons, we affirm the conviction and

sentence.

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