United States v. Sumlin

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
June 15, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
_____________________ Clerk

No. 05-51720

UNITED STATES OF AMERICA,

Plaintiff-Appellant-Cross-Appellee,

versus

DERRYKE KYLE SUMLIN,

Defendant-Appellee-Cross-Appellant.

Appeals from the United States District Court
for the Western District of Texas

________________________________________________

Before SMITH, BARKSDALE, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge.

In this criminal case, the government appeals the 24-month

sentence imposed by the district court upon defendant Derryke Kyle

Sumlin, who was found guilty by a jury of unlawful possession of a

firearm by a convicted felon, in violation of 18 U.S.C. §

922(g)(1). The district court, at the sentencing hearing, decided

sua sponte to downwardly depart from both the United States

Sentencing Guidelines range of 235 to 293 months and the mandatory

minimum 15-year sentence triggered by 18 U.S.C. § 924(e).

Defendant Sumlin cross-appeals his conviction and sentence.

1
 We reverse and remand Sumlin’s conviction and sentence,

because the district court erred in admitting the testimony of the

arresting officer regarding the unproven extrinsic bad act by

Sumlin of transporting drugs; this testimony was inadmissible under

Federal Rule of Evidence 404(b), as interpreted by this court in

Beechum v. United States, 582 F.2d 898, 909-18 (5th Cir. 1978).

I. Facts and Procedural Background

On July 24, 2004, outside of Marlin, Texas, Sergeant Wesley

Kingsley was working drug interdiction, which, he later testified,

consisted of “looking for persons that are trafficking large

amounts of illegal drugs down the highway.” He was driving a

marked police car between 50 and 60 miles per hour when defendant

Derryke Kyle Sumlin passed him from behind, driving a red Corvette.

Because Kingsley noticed that the vehicle did not have a front

license plate,1 he followed Sumlin into the city limits of Marlin

and stopped him. Kingsley informed Sumlin of the reason for the

stop and also told him that he intended to give him a written

warning for the violation.

Kingsley checked Sumlin’s driver’s license by radio, and a

dispatcher advised him that Sumlin’s license had been suspended due

to numerous traffic citations. In response, Sumlin stated that he

1
The Texas Transportation Code requires a rear and front
license plate. See TEX. TRANSP. CODE ANN. § 502.404 (Vernon 1995).

2
had a temporary, occupational license that allowed him to operate

the vehicle and began to look for it in a bookbag that he had

retrieved from the back seat; his search was ultimately

unsuccessful.

Kingsley arrested Sumlin for driving with a suspended license,

read him his Miranda rights, and searched his person. In response

to Sumlin’s voiced concern about potential damage to the Corvette

should it be towed, Kingsley granted Sumlin’s request to call a

friend to come retrieve his car, but the friend was unable to do

so. Kingsley thereafter initiated conversation with Sumlin

regarding this friend, because, as Kingsley would later testify,

drug couriers tend to travel in pairs. Eventually, Kingsley

contacted the operator of a tow vehicle, and while waiting for it

to arrive, conducted a search of the Corvette. Inside the vehicle,

he located: (1) what appeared to be a partially-smoked marijuana

cigarette in the ashtray; and (2) a 9 mm pistol, loaded with four

rounds of ammunition, in the bookbag through which Sumlin had been

looking. Also in the bookbag were several papers, bearing the

names of Sumlin and his mother. The car was then towed to the

impound lot, while Sumlin was transported to jail.

At the lot, Kingsley contacted the district attorney to

request assistance in drafting a search warrant for the

undercarriage of the car. He also arranged for a canine unit to

check the car. The dog alerted to the front and driver’s side of

3
the car, yet no drugs were found inside the vehicle. Sumlin was

then transported from the jail to the lot, read his Miranda rights

again, and questioned about the Corvette. Kingsley also questioned

Sumlin about the handgun. Sumlin responded that he acquired the

weapon a long time ago from a friend in Atlanta, knew that he was

not supposed to have it, but kept it for protection.

Sumlin was charged with possession of a firearm by a convicted

felon, in violation of 18 U.S.C. § 922(g)(1).2 At trial, the

government called Sergeant Kingsley, the arresting officer, who

testified as to the circumstances of the stop and arrest and his

drug interdiction efforts generally. Additionally, he testified

that he suspected that Sumlin was transporting narcotics, because:

(1) the body of Sumlin’s car had several loose or worn screws,

which, according to Kingsley, indicated the possible transportation

of large quantities of illegal drugs, as traffickers frequently

hide drugs in the bodies of their vehicles to prevent law

enforcement detection; (2) he spent some time with the car on the

side of the road attempting to remove the speakers to see if

anything was hidden beneath them; (3) he questioned Sumlin about

2
That statute specifies: “It shall be unlawful for any
person--who has been convicted in any court of, a crime
punishable by imprisonment for a term exceeding one year . . . to
ship or transport in interstate or foreign commerce, or possess
in or affecting commerce, any firearm or ammunition; or to
receive any firearm or ammunition which has been shipped or
transported in interstate or foreign commerce.”

4
the friend Sumlin had called to retrieve his car, because,

according to Kingsley, drug couriers, i.e., those who transport

large quantities of drugs and money, travel in pairs; (4) though he

found only one cigarette, allegedly containing marijuana, he

thought that he would find more drugs; (6) he followed Sumlin’s car

to the impound lot and contacted the district attorney who came

there to assist in drafting a search warrant for the undercarriage

of the car; (7) the canine unit came to the lot and the dog alerted

on the front and driver’s side of the vehicle; and (8) he

questioned Sumlin about drugs when Sumlin was brought from the jail

to the impound lot.

After the prosecutor elicited the aforementioned testimony,

the district judge, at the bench, said to him: “What’s the charge

in this case? Possession of a firearm by a felon? This is a bunch

of nonsense you’re going into. All the search didn’t reveal any

drugs. All you’re talking about is drugs. I’m going to declare a

mistrial in this case in about five seconds.”

Sumlin called his mother as a witness. She testified, in

pertinent part, that she and her son shared the Corvette and that

she and a friend had driven the vehicle to Shreveport, Louisiana on

July 23, 2004 (the day prior to Sumlin’s arrest) to visit the

casinos. She further testified that she owned the gun and that it

was she who took the bookbag, containing the gun, with her on this

trip for protection. Finally, she testified that upon arriving

5
home after lunch time on July 24, 2004, she did not remove the bag

containing the gun from the car as she hurriedly dressed for a 2

p.m. shift at work and took her Toyota there. The jury found

Sumlin guilty of possession of a firearm by a convicted felon, in

violation of 18 U.S.C. § 922(g)(1).

At sentencing, the government offered evidence of Sumlin’s

four prior convictions to trigger the 18 U.S.C. § 924(e) 15-year

mandatory minimum sentence.3 In response, Sumlin argued that the

government had failed to adequately prove the facts of the prior

convictions, specifically noting that the “on or about” dates set

forth in the indictments were insufficient to prove that the

offenses were committed on “occasions different from each other,”

as required to trigger the 15-year mandatory minimum sentence. The

district court overruled his argument as “frivolous.” Sumlin then

argued that although he could not prove that the offenses were

formally consolidated for sentencing, he had presented numerous

affidavits stating that state court judges in Dallas County never

enter formal consolidation orders. The district court noted that

3
This statute provides: “In the case of a person who
violates section 922(g) of this title and has three previous
convictions by any court referred to in section 922(g)(1) of this
title for a violent felony or a serious drug offense, or both,
committed on occasions different from one another, such person
shall be fined under this title and imprisoned not less than
fifteen years, and, notwithstanding any other provision of law,
the court shall not suspend the sentence of, or grant a
probationary sentence to, such person with respect to the
conviction under section 922(g).”

6
“these acts were obviously unrelated offenses that occurred on

different times” and involved different victims, and overruled his

objections.

The PSR calculated Sumlin’s base offense level at 33 and his

criminal history category as VI, assigning three criminal history

points for each of his four prior aggravated robbery convictions.4

These calculations yielded an advisory guideline range of 235 to

293 months. The district court adopted the PSR’s recommendations,

but nevertheless decided sua sponte to sentence Sumlin to 24

months’ imprisonment, five years’ supervised release, a $500 fine,

and a $100 special assessment. The judge noted that he “would not

have been surprised had the jury returned a different verdict,” and

that Sumlin’s previous record was long ago. He also acknowledged

that “this was a very large downward departure for which the

government has the right to appeal if it wishes. The court will

not be insulted if the government intends or desires to do that. .

. .” The prosecutor reminded the judge of the mandatory minimum

15-year sentence, but the judge replied that “the court is

departing downward from that.”

The government appealed the sentence, arguing that the

district court erred when it sua sponte imposed a 24-month sentence

upon Sumlin, despite the 15-year mandatory minimum under 18 U.S.C.

4
Sumlin received two additional points for having been on
parole at the time of the instant offense.

7
§ 924(e) and despite the 235 to 293-month guideline range.

Sumlin cross-appealed, arguing that: (1) the government failed

to present evidence that the Solicitor General had approved the

appeal; (2) the district court erred in permitting the government

to introduce prejudicial testimony by Sergeant Kingsley at trial

regarding his suspicion that Sumlin was transporting narcotics; and

(3) the district court erred in finding that his prior convictions

for aggravated robbery were “unrelated” under USSG § 4A1.2(a)(2).

Because the district court erred in allowing Officer Kingsley

to testify regarding his suspicion of Sumlin’s drug transportation

and this error was not harmless, we reverse Sumlin’s conviction and

sentence and need not reach the other issues presented.

II. Analysis

Sumlin argues that the district court erred in permitting

Sergeant Kingsley to testify regarding his unproven suspicion that

Sumlin had transported narcotics. Sumlin correctly points out that

he was charged only with a single count of possession of a firearm

by a felon, in violation of 18 U.S.C. § 922(g)(1), and that he

stipulated to the predicate offense of a crime punishable by

imprisonment for a term exceeding one year. He explains that he

has never been arrested for or convicted of a drug offense, and he

notes that no drugs (save for one cigarette that the government

alleged contained marijuana, but that was never subjected to a

laboratory test) were found in his vehicle. Pointing to Fifth

8
Circuit case law, Sumlin avers that any alleged drug transporting

is an extrinsic bad act. Therefore, he explains, its admissibility

is governed by Rule 404(b) of the Federal Rules of Evidence. Under

this circuit’s interpretation of Rule 404(b) in Beechum, Sumlin

asserts that Officer Kingsley’s testimony should not have been

admitted. First, he explains, the government had no proof that he

was involved in drug transportation, i.e., the testimony was mere

speculation of the arresting officer; as a result, Sumlin argues

that it was irrelevant to any issue besides his character and

should not have been admitted. Second, he posits that even if it

had been proven and was relevant to some other issue, it was highly

prejudicial; therefore, he explains, it still should not have been

admitted.

The government argues that Kingsley’s testimony regarding his

suspicion of Sumlin’s drug transportation was not extrinsic, but

intrinsic, as it completes the story of the crime by proving the

immediate context of events in time and place. Therefore, it avers,

this testimony did not implicate Rule 404(b) of the Federal Rules

of Evidence. Alternatively, it argues that if the court erred in

admitting the evidence, such error was harmless. Specifically, it

urges that: (1) the jury was fully informed that no drugs were

found hidden in the vehicle; (2) Kingsley’s testimony regarding

suspicion of drug transportation and his subsequent search

constituted a small portion of his total testimony; (3) the

9
prosecution did not mention Kingsley’s testimony regarding drugs in

its closing argument; and (4) the evidence of Sumlin’s guilt was

overwhelming.

A. Standard of Review

Where the party challenging the trial court’s evidentiary

ruling makes a timely objection, we review the ruling under an

abuse of discretion standard. United States v. Hernandez-Guevara,

162 F.3d 863, 869-70 (5th Cir. 1998). In a criminal case, review

of the lower court’s evidentiary rulings is necessarily heightened.

Id. at 869.

If we find an error in the admission or exclusion of evidence,

we review for harmless error. Id. “Any error, defect,

irregularity, or variance that does not affect substantial rights

must be disregarded.” FED. R. CRIM. P. 52(a). An error affects

substantial rights if there is a reasonable probability that the

improperly admitted evidence contributed to the conviction. United

States v. Williams, 957 F.2d 1238, 1242 (5th Cir. 1992) (citing

Schneble v. Florida, 405 U.S. 427 (1972)). Unless such a

reasonable probability exists, we are not required to reverse the

conviction. Id.

In this case, the defendant initially objected to the

relevance of a question asking Kingsley about the significance of

loose screws on the body of the car. The judge overruled the

objection based on the prosecutor’s explanation that the line of

10
questioning related to events that happened later in the evening.

Kingsley then proceeded to testify that the loose screws raised his

suspicion of a narcotics offense. In response to subsequent

questions, he then testified about his fruitless search of the

defendant’s car for drugs later that night and in the following

days. When Kingsley began to testify about a particular

conversation he had with the defendant concerning possible drug

offenses, the defendant’s counsel voiced a continuing objection,

which the judge overruled. Since the first objection was not a

continuing objection, the defendant did not timely object to the

testimony after the first and before the second, continuing,

objection. See United States v. Perez, 651 F.2d 268, 273 (5th Cir.

1981). Plain error review applies to testimony not subjected to a

timely objection during trial. See United States v. Marrero, 904

F.2d 251, 259 (5th Cir. 1990); FED. R. CRIM. P. 52(b). The entire

passage, starting from the first objection to the end of Kingsley’s

testimony subjected to the second, continuing, objection, described

the actions taken related to a suspected drug offense rather than

the underlying possession of a firearm offense. Even if a part of

the passage is subject to plain error review, we do not believe our

analysis and judgment would differ.5 In addition, the parts timely

5
For the parts subject to plain error review, the error has
to: “‘(1) seriously affect substantial rights and (2) have an
unfair prejudicial impact on the jury's deliberations.’” United
States v. Levario Quiroz, 854 F.2d 69, 72 (5th Cir. 1988)
(quoting United States v. Garza, 807 F.2d 394, 396 (5th Cir.

11
objected to during trial and now subject to an abuse of discretion

standard of review, standing alone, could be sufficient as

reversible error.

B. Discussion

Rule 404(b) of the Federal Rules of Evidence, among others,

addresses the relevancy of certain evidence. Rule 404(b) provides:

Other Crimes, Wrongs, or Acts.--Evidence of other crimes,
wrongs, or acts is not admissible to prove the character
of a person in order to show action in conformity
therewith. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of
mistake or accident. . . .

FED. R. EVID. 404(b). Rule 404(b) is designed to guard against the

inherent danger that the admission of “other acts” evidence might

1986)). This case has strong parallels with Levario Quiroz where
plain error was found. Levari Quiroz concerned a murder in
possible self-defense. The government improperly submitted
evidence about a separate indictment for murder for which the
defendant also asserted self-defense. This court held that the
two murders had nothing in common with each other and furthered
the improper implication that, in addition to the current murder
charge, he also “shot two woman,” thus impairing his substantial
rights by having “unfairly prejudiced the jury's deliberations
and verdict.” Levario Quiroz, 854 F.2d at 74. The error is more
serious here, since the evidence of the drug offense was not
based on fact (there was no indictment for the suspected
narcotics violations, only conjectures). Kingsley’s conjectures
strongly implied a related narcotics crime in addition to the
possession of a firearms offense. In addition, unlike in Levari
Quiroz where there was some link between the testimony and the
underlying crime (both crimes were murders wherein the defendant
claimed self-defense), there is absolutely no link between the
insinuations of a narcotics violation and the proof of the
underlying crime here, which is the unlawful possession of a
firearm. Our analysis in the harmless error section, infra, also
bolsters the determination that there is reversible plain error
here.

12
lead a jury to convict a defendant not of the charged offense, but

instead of an extrinsic offense. United States v. Ridlehuber, 11

F.3d 516, 521 (5th Cir. 1993). “‘This danger is particularly great

where . . . the extrinsic activity was not the subject of a

conviction; the jury may feel that the defendant should be punished

for that activity even if he is not guilty of the offense

charged.’” Id. (quoting Beechum, 582 F.2d at 914).

Rule 404(b) only applies to limit the admissibility of

evidence of extrinsic acts. See United States v. Manning, 79 F.3d

212, 218 (1st Cir. 1996). Intrinsic evidence, on the other hand,

is generally admissible “‘so that the jury may evaluate all the

circumstances under which the defendant acted.’” United States v.

Royal, 972 F.2d 643, 647 (5th Cir. 1992) (quoting United States v.

Randall, 887 F.2d 1262, 1268 (5th Cir. 1989)). See United States

v. Maceo, 947 F.2d 1191, 1199 (5th Cir. 1991) (“Evidence of an

uncharged offense arising out of the same transactions as the

offenses charged in the indictment is not extrinsic evidence within

the meaning of Rule 404(b), and is therefore not barred by the

rule.”).

1. Classification: Extrinsic or Intrinsic?

Our first inquiry is whether Kingsley’s testimony regarding

the evidence of Sumlin’s drug transporting is extrinsic or

intrinsic. Evidence of an act is intrinsic when it and evidence of

the crime charged are inextricably intertwined, or both acts are

13
part of a single criminal episode, or it was a necessary

preliminary to the crime charged. United States v. Freeman, 434

F.3d 369, 374 (5th Cir. 2005).

We conclude that Sergeant Kingsley’s testimony regarding his

own unfounded suspicion that Sumlin was a drug transporter is

extrinsic evidence. The facts of this case bear a striking

similarity to those present in Ridlehuber, 11 F.3d at 516.

Ridlehuber was convicted of possessing an unregistered short-

barreled shotgun. During a search of Ridlehuber’s home, which was

leased in his father’s name, the police found the illegal gun in

question, as well as materials commonly used to manufacture

methamphetamine.6 This court held that the evidence of the alleged

drug activity was extrinsic. As it explained:

The connection here between the offense charged in the
indictment and evidence of the uncharged offense is not
so clear. We cannot say . . . that the drug-related
evidence arose out of the weapons charge . . . The
problem is that the government did not prove the
existence of a drug lab-it did not have sufficient
evidence to do so. If the proof were reversed and
Ridlehuber was charged with and convicted of running a
drug lab, with the shotgun admitted over objection, the
result might be different. Under that scenario, the
sawed-off shotgun-a weapon commonly found in illegal drug
labs-might fairly be characterized as “intrinsic”
evidence since possession of the gun could be said to
arise out of the same transaction as the offense charged.
But the government did not charge Ridlehuber with running
a drug lab and the evidence adduced at trial did not

6
Specifically, law enforcement officials found: (1) a
drum containing 230 pounds of sulfuric acid; (2) two gallons of
ether; (3) a can of ether starting fluid; (4) a pan containing
aluminum shavings; (5) a hot plate; (5) tubing; (6) a Pyrex
funnel; (7) thermometers; and (8) rubber stoppers.

14
 prove the existence of a clandestine lab. . .
Furthermore, this is not a situation in which the “other
acts” evidence falls outside of Rule 404(b)’s purview
because the evidence of the charged and uncharged
offenses both were part of a “single criminal episode.”
The only “criminal episode” proven here was possession of
a short-barreled shotgun. The rest is conjecture.

Id. at 521-22 (emphasis added)(citations omitted).

In the case at bar, the government did not prove that Sumlin

was transporting drugs. First of all, the only evidence of any

drugs whatsoever was the one untested cigarette found in Sumlin’s

ashtray that allegedly contained marijuana but was never tested in

a laboratory to determine its contents. Thus it is questionable as

to whether he possessed a controlled substance. Further, nowhere

was it alleged or proven that Sumlin had any intent to manufacture,

distribute, or dispense any controlled substance, as required by

drug transportation statutes. See e.g., 18 U.S.C. § 841 et seq.

Also the government never charged Sumlin with transporting drugs,

and the evidence adduced at trial did not prove that he was doing

so.

Further, this is not a situation in which the other acts

evidence falls outside of Rule 404(b)’s purview because the

evidence of the charged and uncharged offenses were both part of a

single criminal episode. The testimony discussed events far beyond

the time period relevant to Sumlin’s possession of the firearm.

The officer provided testimony regarding his continued search for

drugs and attempts to elicit admissions from the defendant some

15
time after the gun was already found and the defendant had already

been sent to jail. The only criminal episode proven in Sumlin’s

case is possession of a firearm by a felon; the rest is conjecture

and irrelevant. We conclude that any evidence regarding the

arresting officer’s suspicion of Sumlin’s drug transportation is

extrinsic.

2. Admissibility

When evidence of another act is extrinsic, such as Officer

Kingsley’s testimony, we must employ the two-step Beechum analysis

to determine its admissibility under Rule 404(b). At step one, we

determine whether the extrinsic act is relevant to an issue other

than the defendant’s character. Beechum, 582 F.2d at 911. If

relevant only to character, the inquiry goes no further, because

the evidence is inadmissible. If relevant to some other issue,

then step two dictates that we assess the requirements under Rule

403. That is, the evidence can only be admitted if its probative

value is not substantially outweighed by its prejudicial impact.

Id.

Under Beechum, our first step is to decide whether the

extrinsic act is relevant to an issue other than Sumlin’s

character. In order to do so, we first address the threshold

question of whether the government offered sufficient proof that

the defendant committed the alleged extrinsic offense. Id. at 913.

“If the proof is insufficient, the judge must exclude the evidence

16
because it is irrelevant.” Id.; see also United States v.

Ferrouillet, 1996 WL 696507, *2 (E.D.La. 1996)(unpublished)(“Before

determining the relevance of the extrinsic evidence, a court must

first be convinced that the evidence is sufficient to support a

finding that the defendant committed the act.”); 2 Weinstein’s

Evidence § 404.21[2][a], pp. 404-52 (“Other-acts evidence is not

admissible unless the trial judge is first satisfied that a

reasonable jury could find by a preponderance of the evidence that

the defendant committed those acts.”).

In the case at bar, the evidence is clearly insufficient to

prove the other crime, wrong, or act of drug transportation. As

detailed above, the officer’s casual testimony regarding the

untested partially-smoked cigarette found in the Corvette’s ashtray

might barely support a conclusion that it was his and contained

marijuana, but it was clearly insufficient to prove any of the

other essential elements of unlawful drug transportation, e.g.,

that Sumlin transported such drugs with the intent to manufacture,

distribute, or dispense any controlled substance. See e.g., 18

U.S.C. § 841 et seq. Therefore, because the proof of the extrinsic

act of drug transportation is insufficient, it is relevant only to

the defendant’s character and should not have been admitted. Thus,

we need not move on to the second step under Beechum.

3. Harmless Error

Our inquiry, however, is not complete. Despite our ruling

17
that the district court abused its discretion in admitting

Kingsley’s testimony, the government argues that this error was

harmless. Under the harmless error standard of review, “[a]ny

error, defect, irregularity, or variance that does not affect

substantial rights must be disregarded.” FED. R. CRIM. P. 52(a).

In other words, we will not reverse a conviction if the error was

harmless. United States v. Fuchs, 467 F.3d 889, 912 (5th Cir.

2006), cert. denied, 127 S. Ct. 1502 (2007).

To determine whether an error affects the substantial rights

of the complaining party, this court has explained: “‘[U]nless

there is a reasonable possibility that the improperly admitted

evidence contributed to the conviction, reversal is not required.’”

United States v. Williams, 957 F.2d 1238, 1242 (5th Cir.

1992)(quoting Schneble v. Florida, 405 U.S. 427 (1972)).

In the case at bar, we conclude that the district court’s

error in admitting Kingsley’s testimony affected Sumlin’s

substantial rights; there is a reasonable possibility that this

improperly admitted evidence contributed to the conviction. As

this court has explained, “[t]he danger of unfair prejudice from

admission of the drug-related evidence . . . [is] great,” because

a drug offense is the kind of crime for which the jury may feel the

defendant should be punished, regardless of his guilt as to the

charged offense. Ridlehuber, 11 F.3d at 523. See also United

States v. Blackstone, 56 F.3d 1143, 1146 (9th Cir. 1995) (“Evidence

18
is . . . particularly prejudicial when, as here, ‘the proffered

evidence connects a party with a highly charged public issue, such

as . . . narcotics.’”) (citing 1 Weinstein’s Evidence § 403[3], pp.

43-44); United States v. Vizcarra-Martinez, 66 F.3d 1006, 1017 (9th

Cir. 1995) (“a misdemeanor conviction for possessing one marijuana

cigarette nine years before the crime was committed could have a

‘significant’ prejudicial effect on the jury’s decision”) (citing

United States v. McLister, 608 F.2d 785, 790 (9th Cir. 1979)).

Sumlin’s case was a close one, and even the district judge

remarked that he would not have been surprised had the jury

returned a different verdict. In such a case, admitting evidence

of drug-related evidence could have easily contributed to the

conviction. That is to say, the jury may have felt that Sumlin

should be punished because of possible drug transportation,

regardless of his guilt as to the charged offense.

4. Sentencing Below The Statutory Minimum

Since we decided to reverse the conviction, we do not need to

reach the issue of whether the district court erred in sentencing

below the statutory mandatory minimum. Nevertheless, any re-

sentencing in this case will follow precedent, which does not allow

the trial judge any discretion to sentence below the statutory

minimum, except under explicit statutory exceptions. See United

States v. Krumnow, 476 F.3d 294, 297 (5th Cir. 2007).

Conclusion

19
 For the these reasons, Sumlin’s conviction and sentence are

REVERSED AND REMANDED.

20