Case: 20-30160 Document: 00515905614 Page: 1 Date Filed: 06/18/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 18, 2021
No. 20-30160
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Jmarreon Mack,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 3:19-CR-29-1
Before Ho, Oldham, and Wilson, Circuit Judges.
Per Curiam:*
A federal jury convicted Jmarreon Mack of firearms and controlled
substance offenses. Mack was sentenced to 210 months’ imprisonment and
three years’ supervised release. On appeal, Mack challenges the district
court’s denial of his pre-trial motion to suppress evidence, the sufficiency of
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 20-30160 Document: 00515905614 Page: 2 Date Filed: 06/18/2021
No. 20-30160
the Government’s evidence at trial, and the district court’s calculation of his
sentence. We find no error and affirm.
I.
In April 2018, Louisiana Master Trooper Hollingsworth pulled over a
black Buick for an apparent moving violation. During the stop, law
enforcement officers noticed a handgun tucked between the driver’s seat and
the center console. They secured the driver—Mack—and the handgun. A
subsequent criminal history check showed Mack was a convicted felon, so
Hollingsworth placed him under arrest and searched the vehicle. That search
revealed, in addition to the loaded Glock .45 pistol, 23.5 grams of marijuana,
eight clear plastic baggies, and a scale. Mack was ultimately charged with
felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1);
possession with intent to distribute marijuana, in violation of 21 U.S.C.
§ 841(a)(1) & (b)(1)(D); and possession of a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A).
During pre-trial proceedings, Mack moved to suppress evidence
obtained during Hollingsworth’s search of the Buick. He argued “[t]he initial
stop was without sufficient probable cause” because no moving violation
occurred and that any evidence obtained from the stop should be suppressed.
At the suppression hearing, the Government relied primarily on
Hollingsworth’s testimony and footage from the dash cam of
Hollingsworth’s patrol vehicle. Hollingsworth explained that he stopped
Mack because he observed the Buick slowing in a left turn lane—as if to turn
left—without a left turn signal activated. The dash cam footage showed
Mack’s vehicle in fact had a right turn signal activated as he approached the
left turn. That footage also showed that Hollingsworth made a U-turn after
seeing Mack approach the intersection, and that as Hollingsworth came
around Mack was executing a left turn with his left rear turn signal activated.
2
Case: 20-30160 Document: 00515905614 Page: 3 Date Filed: 06/18/2021
No. 20-30160
A magistrate judge issued a Report and Recommendation that the
motion to suppress be denied. Analyzing the traffic stop under Terry v. Ohio,
392 U.S. 1 (1968), the magistrate judge found Hollingsworth had reasonable
suspicion that Mack had committed a moving violation. The district court
adopted the magistrate’s Report and Recommendations and denied the
motion to suppress.
The case proceeded to trial. At the close of the Government’s
evidence Mack moved for a judgment of acquittal, which the district court
denied. A jury ultimately returned a verdict of guilty as to all three counts.
In anticipation of sentencing, the United States Probation Office
prepared a pre-sentence investigation report (“PSR”). The PSR calculated
Mack’s adjusted offense level for counts one and two as 26. It also assessed a
“career offender” enhancement under Sentencing Guideline § 4B1.1
because “[t]he defendant was at least 18 years old when he committed the
instant offense, the instant offense is a felony-controlled substance offense
. . . and Mack has at least two prior felony convictions of either a crime of
violence or a controlled substance offense.” That enhancement applied,
according to the PSR, because Mack had two prior “controlled substance
offense” convictions: (1) a 2005 conviction for Attempted Distribution of
Cocaine, in violation of La. Stat. Ann. § 40:967; and (2) a 2007
conviction for Possession of Cocaine with Intent to Distribute, in violation of
the same. With the career-offender enhancement, Mack’s criminal history
category was VI. According to the PSR, Mack’s recommended Guidelines
range was 360 months to life.
Mack filed written objections to the PSR. Specifically, he objected to
application of the career-offender enhancement for two reasons: (1) his 2005
attempted-distribution conviction is not a valid § 4B1.1 predicate because an
inchoate crime like attempt falls outside the definition of a “controlled
3
Case: 20-30160 Document: 00515905614 Page: 4 Date Filed: 06/18/2021
No. 20-30160
substance offense”; and (2) his 2007 possession with intent to distribute
conviction is indivisible and sweeps more broadly than its federal analog, The
district court denied Mack’s objection to the PSR and calculated the
Guidelines range for each count as follows: 120 months and 60 months as the
statutory maximums for counts one and two, respectively; and a range of 360
months to life for count three. The district court elected to vary downwards
to concurrent terms of 120 and 60 months on the first two counts, and 90
consecutive months on count three, with concurrent three-year terms of
supervised release. Mack timely appealed.
II.
Mack raises four issues on appeal. First, he argues the district court
erred in denying his motion to suppress. Second, Mack says the Government
failed to prove beyond reasonable doubt that he had intent to distribute the
marijuana found in his vehicle. Third, Mack argues his prior attempted-
distribution conviction is not a qualifying predicate for the “career offender”
enhancement. Fourth, Mack says his possession with intent to distribute
conviction is not a qualifying predicate for the same enhancement. We
consider each argument in turn.
A.
Mack first challenges the denial of his motion to suppress. He argues
the traffic stop leading to his arrest was unlawful and that evidence
discovered thereafter should have been suppressed. We review the district
court’s factual findings at the suppression hearing for clear error, and its legal
conclusion de novo. See United States v. Robinson, 741 F.3d 588, 594 (5th Cir.
2014). And we view the record in the light most favorable to the party that
prevailed below—here, the Government. See United States v. Cervantes, 797
F.3d 326, 328 (5th Cir. 2015).
4
Case: 20-30160 Document: 00515905614 Page: 5 Date Filed: 06/18/2021
No. 20-30160
There’s no doubt that a traffic stop is a “seizure” for Fourth
Amendment purposes. See Delaware v. Prouse, 440 U.S. 648, 653 (1979). To
justify that seizure, the Government bears the burden of showing (1) the stop
was lawful in the first instance and (2) the officer’s actions after detention
were “reasonably related in scope” to the circumstances giving rise to the
stop.** United States v. Andres, 703 F.3d 828, 832 (5th Cir. 2013) (citing Terry
v. Ohio, 392 U.S. 1 (1968)); United States v. Waldrop, 404 F.3d 365, 368 (5th
Cir. 2005) (“[W]here a police officer acts without a warrant, the government
bears the burden of proving that the search was valid.”). To show the stop
was lawful in the first instance, the Government must introduce facts giving
rise to an “objectively reasonable suspicion that some sort of illegal activity,
such as a traffic violation,” took place. United States v. Lopez-Moreno, 420
F.3d 420, 430 (5th Cir. 2005).
The Government easily carries its burden. Trooper Hollingsworth
testified at the suppression hearing that he saw Mack’s vehicle approach a
left turn without its front left turn signal illuminated. After Hollingsworth
made a U-turn a few seconds later, he saw that Mack had indeed made a left
turn into a gas station. As relevant here, Louisiana law requires a motorist to
“signal [their] turn continuously for a minimum of 100 feet before the turn.”
Traham v. Deville, 933 So. 2d 187, 197 (La. Ct. App. 2006) (citing La. Stat.
Ann. § 32:104(B)). It further requires: “[A] motor vehicle in use on a
highway shall be equipped with, and the required signal shall be given by,
signal lamps when the vehicle is so constructed . . . both to the front and to
the rear.” La. Stat. Ann. 32:105(B). Having seen Mack approach and
execute a left turn—ostensibly without continuously signaling to the front
and rear—Hollingsworth reasonably thought Mack had committed a moving
**
The parties do not dispute the second prong, so we do not discuss it.
5
Case: 20-30160 Document: 00515905614 Page: 6 Date Filed: 06/18/2021
No. 20-30160
violation. The ensuing traffic stop was thus “justified at its inception.”
Andres, 703 F.3d at 832.
Seeking to avoid that conclusion, Mack argues (1) Hollingsworth “did
not have an opportunity to determine whether Mack’s vehicle had a
functioning left hand turn signal,” and/or (2) Hollingsworth “did not have
an opportunity to observe the traffic violation he claimed he witnessed.”
Neither contention has merit. It is unclear why it should matter that
Hollingsworth declined to investigate the functionality of Mack’s turn
signal—his post-stop observations are irrelevant to the existence of pre-stop
reasonable suspicion. See United States v. Darrell, 945 F.3d 929, 933 n. 20 (5th
Cir. 2019) (“[A]nything found after the moment [defendant] was stopped . . .
does not weigh in favor of reasonable suspicion because it was not obtained
until after the seizure.” (quotation omitted)). As for the assertion that
Hollingsworth did not “observe the traffic violation he claimed he
witnessed,” Mack fails to show the district court’s factual finding to the
contrary was clearly erroneous. Nor could he—both Trooper
Hollingsworth’s testimony and the video evidence established
Hollingsworth did see Mack approach the left turn without a continuous
signal active, then seconds later execute that turn.
In sum, Mack was lawfully stopped. The district court therefore did
not err in denying Mack’s suppression motion.
B.
Next, Mack challenges the sufficiency of the Government’s evidence.
Specifically, he argues there was insufficient evidence that he intended to
distribute the marijuana found in his vehicle. And by extension, Mack says,
there was insufficient evidence to show he possessed a firearm “in
furtherance of a drug trafficking crime.”
6
Case: 20-30160 Document: 00515905614 Page: 7 Date Filed: 06/18/2021
No. 20-30160
Mack preserved a sufficiency challenge by moving for judgment of
acquittal at the close of the Government’s evidence. See Fed. R. Crim. P.
29(a); United States v. Thompson, 811 F.3d 717, 725 (5th Cir. 2016). So we
review the sufficiency of the Government’s evidence de novo, United States v.
Floyd, 343 F.3d 363, 370 (5th Cir. 2003), and we’ll affirm so long as a rational
trier of fact could find the Government carried its burden at trial, United
States v. Sacerio, 952 F.2d 860, 863 (5th Cir. 1992); United States v. Walters,
87 F.3d 663, 667 (5th Cir. 1996) (“It is fundamental that we, as an appellate
court, owe great deference to a jury verdict.”).
To obtain a conviction, the Government had to prove Mack
(1) knowingly possessed a controlled substance; (2) that the substance was in
fact marijuana; and (3) that Mack possessed the substance with intent to
distribute it. United States v. Vinagre-Hernandez, 925 F.3d 761, 764 (5th Cir.
2019). The Government could rely on circumstantial evidence to prove those
elements. United States v. Munoz, 957 F.2d 171, 174 (5th Cir. 1992).
Here, we see no reason to disturb the jury’s verdict. The Government
showed that at the time of Mack’s arrest he possessed a loaded Glock .45
pistol, 23.5 grams of marijuana, eight clear plastic baggies, and a scale.
Further evidence showed Mack was the sole occupant of the Buick at the time
of the stop. Testimony from a federal Drug Enforcement Administration
agent established that drug dealers often carry firearms for protection during
transactions, and that the scales and baggies in the vehicle are of the sort
commonly used in dealing marijuana. Taken together, that evidence is
sufficient for a rational trier of fact to conclude Mack possessed the marijuana
with intent to distribute. Cf. United States v. Williamson, 533 F.3d 269, 278
(5th Cir. 2008) (stating that digital scales found with narcotics “provides
support to the conclusion that [the defendant] had an intent to distribute”).
And by extension, a rational trier of fact could conclude Mack’s possession
of the Glock was in furtherance of a drug trafficking crime.
7
Case: 20-30160 Document: 00515905614 Page: 8 Date Filed: 06/18/2021
No. 20-30160
C.
Next, we consider whether the district court erred in treating Mack’s
2006 attempted-distribution offense as a predicate conviction triggering the
Sentencing Guidelines’ career-offender enhancement. That enhancement is
found in § 4B1.1 of the Guidelines. It applies, in relevant part, where “the
defendant has at least two prior felony convictions of . . . a controlled
substance offense.” U.S.S.G. § 4B1.1(a)(3). Mack argues that his 2006
attempted distribution conviction is not a “controlled substance offense”
because the Guidelines’ definition of that term, see id. § 4B1.2(b), does not
include inchoate offenses like attempt.
Mack’s argument is foreclosed by precedent. We long ago held that
§ 4B1.1’s career-offender enhancement lawfully includes inchoate offenses.
See United States v. Lightbourn, 115 F.3d 291, 293 (5th Cir. 1997). And since
Lightbourn, several panels of this Court have acknowledged it controls
questions materially indistinguishable from Mack’s. See, e.g., United States v.
Kendrick, 980 F.3d 432, 444 (5th Cir. 2020) (rejecting an argument that
“conspiracy convictions should not qualify as ‘controlled substance
offense[s]’ under § 4B1.1(a)” because Lightbourn “remains binding”);
United States v. Goodin, 835 F. App’x 771, 782 (5th Cir. 2021) (explaining that
Lightbourn held the Commission was “authorized . . . to add inchoate
offenses such as conspiracy to the ‘controlled substance offense’ definition
in U.S.S.G. § 4B1.2[,]” and that “we are bound” by that precedent).
D.
Lastly, Mack argues his prior conviction for possession with intent to
distribute cocaine is not a “controlled substance offense” within the meaning
of § 4B1.1. Mack says the Louisiana statute he was convicted under, La.
Stat. Ann. § 40:967(A), is indivisible and broader than the “generic
crime” as it is defined in federal law.
8
Case: 20-30160 Document: 00515905614 Page: 9 Date Filed: 06/18/2021
No. 20-30160
This argument too is foreclosed by precedent. See United States v.
Frierson, 981 F.3d 314 (5th Cir. 2020). There, we held Ҥ 40.967(A) is
divisible.” Id. at 318. We further held that “possession with intent to
distribute cocaine under § 40.967(A)” is “sufficiently narrow to fall within
the scope of the elements in the ‘generic crime,’ § 841(a).” Id. Accordingly,
a conviction under that statute “supports the application of the career
offender sentence enhancement under U.S.S.G. § 4B1.1.” Id. Under
Frierson, the district court did not err in treating Mack’s § 40.967(A)
conviction as a predicate for application of the career-offender enhancement.
AFFIRMED.
9