IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 26, 2008
No. 07-30649 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
RONALD KING, also known as Big
Defendant-Appellant
Appeal from the United States District Court for the
Western District of Louisiana
Before DAVIS, SMITH and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
Ronald King appeals his jury trial conviction for one count of conspiracy
to possess cocaine with the intent to distribute and one count of conspiracy to
launder money. He also appeals the sentence imposed. We affirm.
I.
The Government charged King with conspiracy to possess with the intent
to distribute five or more kilograms of cocaine, 21 U.S.C. §§ 841(a)(1), 846, and
conspiracy to commit money laundering, 18 U.S.C. § 1956(a), (h). The
Government also sought forfeiture of property King allegedly derived from these
conspiracies. See 21 U.S.C. § 853. At trial, the Government established King’s
involvement in a cocaine distribution conspiracy by eliciting witness testimony
No. 07-30649
and introducing recordings of conversations between two of King’s alleged co-
conspirators. Regarding the money laundering conspiracy charge, the
Government elicited testimony from several witnesses and introduced recordings
of conversations between King and his wife concerning the use of a vehicle that
was allegedly purchased with the proceeds of illegal drug activity.
King objected to admission of the recorded conversations. He claimed that
the Confrontation Clause, U.S. CONST. amend. VI, barred admission of
recordings of conversations between his alleged co-conspirators, and that the
marital privilege barred admission of recordings of his conversations with his
wife. The district court admitted the recordings and the jury convicted King on
both conspiracy counts. At sentencing, the district court calculated King’s
Sentencing Guidelines range to be 360 months to life on the cocaine conspiracy
count. After stating that (1) he understood that the Guidelines are not
mandatory, (2) he could give a non-Guidelines sentence, (3) he had considered
the 18 U.S.C. § 3553(a) factors, and (4) that he found no need to deviate from the
Guidelines, the court imposed a sentence of 400 months on the cocaine
conspiracy count and a concurrent sentence of 240 months on the money
laundering conspiracy count. The court also ordered forfeiture of cash, guns, and
real property. King did not object to the sentence imposed, but timely filed a
notice of appeal.
II.
King argues on appeal that the district court committed a procedural
sentencing error by presuming that a sentence within the applicable Guidelines
range was reasonable. Because King did not preserve this argument by raising
it below, review is for plain error. See United States v. Sanchez, 527 F.3d 463,
464 (5th Cir. 2008). To show plain error, King must establish that “there is (1)
error, (2) that is plain, and (3) that affects substantial rights.” Id. (quotation
marks omitted). “If all three conditions are met an appellate court may then
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exercise its discretion to notice a forfeited error but only if (4) the error seriously
affects the fairness, integrity, or public reputation of judicial proceedings.”
United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005) (quotation marks
omitted).
King correctly points out that district courts may not rely on a
presumption that a properly calculated Guidelines sentence is reasonable. See
Rita v. United States, 127 S. Ct. 2456, 2458 (2007) (“[T]he sentencing court does
not enjoy the benefit of a legal presumption that the Guidelines sentence should
apply.”); see also Gall v. United States, 128 S. Ct. 586, 596-97 (2007) (“[District
courts] may not presume that the Guidelines range is reasonable.”).1 The issue
is whether the district court applied such a presumption. At King’s sentencing
hearing, the court stated:
The Court recognizes that the guidelines in this instance pursuant
to the Booker decision are advisory and that they are not binding
upon the Court. The Court also is aware of the potential for giving
a non-guideline sentence under Title 18, Section 3553(a) of the
United States Code. I have taken into account not only the correctly
calculated guidelines, but also the sentencing factors embodied in
Section 3553(a) and find that there is no need to deviate from the
calculations contained in the United States Sentencing Guidelines.
We find no error in this statement. The court did not expressly apply a
presumption that a Guidelines sentence was reasonable. Cf. United States v.
Wilms, 495 F.3d 277, 281 (6th Cir. 2007) (vacating after a district court required
the defendant to “‘overcome the presumption of reasonableness with respect to
the sentencing guidelines’”). Further, the district court did not require the
1
This presumption should be distinguished from the presumption of reasonableness
that Guidelines sentences enjoy on appeal in this Circuit. See United States v. Alonzo, 435 F.3d
551, 554 (5th Cir. 2006). This appellate presumption has been expressly authorized by the
Supreme Court. See Rita,127 S. Ct. at 2462-63; Gall, 128 S. Ct. at 597 (“If the sentence is
within the Guidelines range, the appellate court may, but is not required to, apply a
presumption of reasonableness.”).
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defendant to prove “extraordinary circumstances” before imposing a non-
Guidelines sentence, which we have observed is akin to applying a presumption
of reasonableness. See United States v. Carbajal-Alvarado, No. 07-40597, 2008
WL 1881458, at *1 (5th Cir. April 29, 2008). Additionally, it was appropriate for
the district court to refer to the applicable Guidelines range when determining
the appropriate sentence. As we have previously recognized, statements by a
sentencing court indicating that a Guidelines sentence is “appropriate” or that
there is no reason not to apply a Guidelines sentence, are permissible. See
United States v. Cisneros-Gutierrez, 517 F.3d 751, 766 (5th Cir. 2008); United
States v. Roberts, No. 06-30868, 2008 WL 749533, at *1-*2 (5th Cir. Mar. 21,
2008) (finding no error when the district court stated that there is “no reason to
deviate from . . . [the Guidelines]”).
Lastly, even if King could establish error on this point, he has not shown
that the error affected his substantial rights under the plain error standard. See
United States v. Holmes, 406 F.3d 337, 365 (5th Cir. 2005) (requiring the
defendant to show “a reasonable probability that, but for the error claimed, the
result of the proceeding would have been different.” (quotation marks and
brackets omitted)).2
King next challenges the district court’s ruling allowing the Government
to introduce statements made by King’s alleged co-conspirators. King argues
that admission of these out-of-court statements violated the Confrontation
Clause as interpreted by Crawford v. Washington, 541 U.S. 36 (2004). However,
Crawford only bars out-of-court statements that are testimonial. Id. at 68.
Statements made between co-conspirators in furtherance of a conspiracy are not
testimonial. Id. at 56 (commenting that “statements in furtherance of a
conspiracy” are not testimonial); United States v. Robinson, 367 F.3d 278, 292
2
We note that King has not challenged the substantive reasonableness of his sentence.
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No. 07-30649
n.20 (5th Cir. 2004); see United States v. Holmes, 406 F.3d 337, 348 & n.16 (5th
Cir. 2005) (“Statements made by a co-conspirator during the course and in
furtherance of a conspiracy are by their nature generally nontestimonial and
thus are routinely admitted against an accused despite the absence of an
opportunity for cross-examination.”). Because the statements at issue here were
made by co-conspirators in the furtherance of a conspiracy, they do not fall
within the ambit of Crawford’s protection and the district court did not err in
admitting them.3
Lastly, we find no reversible error in the district court’s decision to admit
transcripts of tape-recorded conversations between King and his wife. Although
this Court recognizes a privilege “protecting confidential communications
between spouses,” United States v. Brown, 12 F.3d 52, 54 n.8 (5th Cir. 1994),
“conversations between husband and wife about crimes in which they are jointly
participating when the conversations occur” are not privileged. United States v.
Mendoza, 574 F.2d 1373, 1381 (5th Cir. 1978). The district court held that the
“joint participation” exception applied in this case because the conversations at
issue involved the “potential criminal activity of hiding assets” or “concealing
[assets] from [King’s] ownership.” Based on our review of the record, we conclude
that the court did not abuse its discretion in finding this exception applicable.
See United States v. Hall, 500 F.3d 439, 443 (5th Cir. 2007) (“We review the
district court’s evidentiary rulings for abuse of discretion.”).
III.
For the foregoing reasons, we AFFIRM King’s conviction and sentence.
AFFIRMED.
3
We decline King’s invitation to hold that these statements are testimonial because
they were “presented by the government for their testimonial value.” Crawford’s emphasis
clearly is on whether the statement was “testimonial” at the time it was made. See 541 U.S.
at 51-52.
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