IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-10247

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

v.

RONALD GENE HARPER; JIMMIE CLYDE COLLINS,

Defendants–Appellants.

Appeal from the United States District Court

for the Northern District of Texas

Before KING, DeMOSS, and OWEN, Circuit Judges.

PRISCILLA R. OWEN, Circuit Judge:

Defendant-appellant Ronald Gene Harper was convicted by a jury of five

conspiracy, drug possession, and weapons offenses. Co-defendant-appellant

Jimmie Clyde Collins was convicted by the same jury of six conspiracy, drug

possession, and weapons offenses. In this direct criminal appeal, Harper appeals

his conviction and sentence, claiming that the district court (1) erred by

admitting testimonial hearsay, (2) abused its discretion by excluding the

conviction records of a critical state witness, and (3) abused its discretion by

refusing to ask requested voir dire questions of the jury. Collins appeals his

sentence, claiming the district court (1) erred by using a conviction in this case

United States Court of Appeals

Fifth Circuit

F I L E D

January 17, 2008

Charles R. Fulbruge III

Clerk
No. 05-10247

2

as a prior conviction for purposes of sentence enhancement and (2) erred by

imposing an unreasonable sentence. We affirm.

I

Co-defendants-appellants Ronald Gene Harper and Jimmie Clyde Collins

lived together at a house in Fort Worth, Texas. In June 2004, Demea Garrett,

a confidential informant working for the Bureau of Alcohol, Tobacco, Firearms,

and Explosives (ATF), approached the house and asked Harper about purchasing

crack cocaine. Harper told Garrett to return in thirty minutes. Garrett did not

return thirty minutes later, but did return on June 21, 2004, when he purchased

3.52 grams of cocaine base from Collins. Harper was in the room where the

transaction occurred but did not participate in the sale.

Four days later, on June 25, 2004, ATF executed a search warrant at the

house. ATF officers found a surveillance camera on the front porch. They also

found twenty-eight guns in various locations in the house, including four hidden

in the living room couch, and over eleven grams of cocaine. Cocaine was found

hidden in the living room couch and in a Pyrex bowl in a microwave oven in the

kitchen. Some of the cocaine was packaged for distribution in plastic baggies.

ATF officers also found digital scales and empty plastic baggies in the house. 

Collins and Harper were at the house when ATF executed the search.

They were arrested on traffic warrants but were later released on bond. After

being given Miranda warnings and while still at the house, Harper told an ATF

agent that he lived in the “middle room” of the house. He denied knowledge of

the drugs but admitted that his fingerprints would be on the guns because he

moved them. Collins told the same ATF agent that “everything in the house was

his,” referring to the guns and a small quantity of marijuana. Importantly, he

denied knowledge of the crack cocaine in the microwave.

ATF agents returned to the house a month later on July 26, 2004, to

execute federal arrest warrants for Harper and Collins. Collins answered the
No. 05-10247

3

door and was arrested. Harper was found sitting on the living room couch and

was also arrested. Collins consented to a search, during which agents found two

additional firearms (in the couch and a bedroom), crack cocaine (in the couch),

heroin (in the couch), and video surveillance equipment. After being read his

Miranda rights, Collins told an ATF agent that all the drugs and firearms in the

house were his. He admitted that one of the guns was traded to him for cash

and crack cocaine.

Harper and Collins (along with a third defendant not involved in this

appeal) were indicted in a ten-count Superceding Indictment on October 13,

2004. Harper was named in five counts arising from only the June 25, 2004,

search: conspiracy to possess five grams or more of cocaine base with intent to

distribute, possession of five grams or more of cocaine base with intent to

distribute, using and maintaining premises to manufacture and distribute a

controlled substance, possession of a firearm in furtherance of a drug trafficking

crime, and possession of a firearm by a convicted felon.

Collins was named in six counts arising from both the June 25, 2004 and

July 26, 2004 searches, including conspiracy to possess five grams or more of

cocaine base with intent to distribute (June 25), possession of five grams or more

of cocaine base with intent to distribute (June 25), using and maintaining

premises to manufacture and distribute a controlled substance (June 25),

possession of a firearm in furtherance of a drug trafficking crime (June 25),

possession of a controlled substance with intent to distribute (July 26), and

possession of a firearm in furtherance of a drug trafficking crime (July 26). 

A jury convicted Harper and Collins of all charges in a joint trial. Collins

did not testify at trial, but an ATF officer testified as to Collins’s admissions

during both searches, over Harper’s Sixth Amendment objections. The district

courtinstructed the jury notto consider Collins’s statements as evidence against

Harper. 
No. 05-10247

1 541 U.S. 36 (2004).

2 See United States v. Jimenez, 464 F.3d 555, 558 (5th Cir. 2006).

4

The district court sentenced Harper under the Sentencing Guidelines to

an aggregate sentence of 138 months of imprisonment and sentenced Collins to

an aggregate sentence of 370 months of imprisonment. The court adopted the

Presentence Investigation Report’s (PSR) recommendation and sentenced Collins

to 60 months imprisonment on Count Four (possession of a firearm in

furtherance of a drug trafficking crime, June 25) and 300 months imprisonment

on Count Ten (possession of a firearm in furtherance of a drug trafficking crime,

July 26). Count Four was adopted as a prior conviction, thereby increasing the

penalty for CountTen, which was deemed a second conviction. The district court

ordered that the sentences for these two counts be served consecutively.

II

A

Harper first challenges the district court’s denial of his Sixth Amendment

challenge to the admission of Collins’s statements at trial, relying on the

Supreme Court’s recent decision in Crawford v. Washington.1 Because Harper

properly preserved his Sixth Amendment challenge by objecting to Collins’s

statements, we review the issue de novo, subject to harmless error analysis.2

Harper contends that allowing two ATF agents to testify about

co-defendant Collins’s admissions during their jointtrial violated his own rights

under the Confrontation Clause ofthe Sixth Amendment because Collins did not

testify at trial, and Harper had no prior opportunity to cross-examine Collins.

Harper challenges the admission of ATF agent Blake Gordon’s testimony based

on Collins’s statements to him on July 26, 2004. Gordon testified that: 

Mr. Collins stated that the SIG-Sauer pistolthat was found, that he

traded it for $200 in cash and $70 worth of crack cocaine to a
No. 05-10247

3 Crawford, 541 U.S. at 59.

4

Id. at 52.

5

relative of his. In addition he stated that he sold crack cocaine in

quantities known as 50s. 

Harper also challenges ATF agent Chris Beach’s testimony based on Collins’s

statements to him on June 25, 2004. Beach testified that:

Mr. Collins told me that he lived at the residence. I explained to

him that at the time firearms and narcotics were being found inside

the residence . . . . He told me everything in the house was his and

specifically that the firearms that he had either purchased them—or

he had obtained them either by purchasing them or trading for

them. He explained that if there were any narcotics in the house

that he smoked marijuana and we’d probably find marijuana inside

the house. 

I asked him where he stayed inside the residence. He said he

usually sleeps in the living room. I asked him about the suspected

narcotics—suspected crack cocaine that we found in the microwave.

He said he was unaware of that and it was probably his dinner.

Crawford prohibits courts from admitting out-of-court “testimonial”

statements unless the declarant is unavailable and the defendant had a prior

opportunity to cross-examine the declarant.3 Although the court did not clearly

define the word “testimonial,” it made clear that “[s]tatements taken by police

officers in the course of interrogations” are examples of testimonial statements.4

Collins’s statements to agent Gordon and agent Beach are “testimonial” and

could not be admitted at Harper’s trial unless Harper had an opportunity to

cross-examine Collins. Because Collins exercised his Fifth Amendment right not

to testify, Harper did not have an opportunity to cross-examine him, and the

district court erred in admitting the testimony.

The Government argues that Crawford does not apply because the

testimony was not offered “against” Harper, but only against Collins. But

Crawford makes no such distinction. Although the Sixth Amendment grants a
No. 05-10247

5 U.S. CONST. amend. VI (emphasis added).

6 Crawford, 541 U.S. at 51.

7 United States v. Ibarra, 493 F.3d 526, 532 (5th Cir. 2007) (quotation omitted).

8 United States v. Vejar-Urias, 165 F.3d 337, 340 (5th Cir. 1999).

9 Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986).

6

criminal defendant the right“to be confronted with the witnesses against him,”5

Crawford makes clear that“witnesses againstthe accused” are simply those who

“bear testimony . . . for the purpose of establishing or proving some fact.”6In

this case, Collins’s testimonial statements were introduced for the purpose of

establishing that Collins owned some of the narcotics and firearms found in the

house. Despite the Government’s contention that Collins’s statements were only

introduced against Collins,the statements necessarily constitute the “testimony”

with which Crawford is concerned.

Having determined that Harper’s Sixth Amendment confrontation right

was violated, we turn to the harmless error analysis. “Under the harmless error

standard, reversal is required if there is a reasonable possibility that the

improperly admitted evidence contributed to the conviction.”7“For an appellate

court to find that a violation of a federal constitutional right is harmless, it must

be convinced beyond a reasonable doubt that the error was harmless in light of

the other evidence presented attrial.”8 Whether a violation ofthe Confrontation

Clause is harmless in a particular case depends on a host of factors including

“the importance of the witness’ testimony in the prosecution’s case, whether the

testimony was cumulative, the presence or absence of evidence corroborating or

contradicting the testimony of the witness on material points, the extent of

cross-examination otherwise permitted, and, of course, the overall strength of

the prosecution’s case.”9
No. 05-10247

10 United States v. Fuchs, 467 F.3d 889, 908 (5th Cir. 2006) (internal quotations

omitted), cert. denied, 127 S.Ct. 1502 (U.S. Mar. 5, 2007).

11 Richardson v. Marsh, 481 U.S. 200, 211 (1987).

7

The Government’s case against Harper was based primarily on

circumstantial evidence. The prosecution specifically relied on the large

quantity of guns, surveillance equipment, marijuana, electronic scales, and other

equipment used to “cook” crack cocaine that were found during two searches of

the residence. At closing argument, the prosecution argued that the

overwhelming amount of circumstantial evidence showed that Harper was a

willing participant in the conspiracy, as opposed to just someone who stayed at

the house in exchange for taking care of the yard work, as Harper had claimed.

The Government also relied on the testimony of Garrett, the confidential

informant, who testified about his June 21 drug buy, during which Harper stood

and watched as the transaction was taking place.

“Mere presence or association alone, however, [is] not sufficient to prove

participation in a conspiracy. Likewise, the government may not prove up a

conspiracy merely by presenting evidence placing the defendant in a climate of

activity that reeks of something foul.”10 Harper’s defense is that he was merely

present in the house where and when the illicit activity took place. But Collins’s

statement that he was unaware of the crack cocaine in the microwave suggests

that someone other than Collins was involved in cooking the crack in the

microwave. This statement necessarily implicates Harper because it suggests

that Harper was not merely a resident at the house, but was actively involved

in the various drug-related crimes charged in the indictment.

As the Government points out, however, the judge instructed the jury

during the trial, and again just prior to its deliberations, that Collins’s

statements should not be considered in any way as evidence against Harper.

Although “juries are presumed to follow their instructions,”11 Harper
No. 05-10247

12 Bruton v. United States, 391 U.S. 123, 135 (1968).

13 Id. at 126.

14 Richardson, 481 U.S. at 208.

15 Id.; see also United States v. Santos, 449 F.3d 93, 100 (2d Cir. 2006) (finding Crawford

error in the court’s admittance of a non-testifying co-defendant’s statement, but ultimately

finding no error because the statement did not mention the defendant by name, and the

district court instructed the jury not to consider the statement as evidence against the

defendant).

8

nevertheless relies on Bruton v. United States to argue this case is one where

“the risk that the jury will not, or cannot, follow the instructions is so great, and

the consequences of failure so vital to the defendant, that the practical and

human limitations of the jury system cannot be ignored.”12In Bruton, a nontestifying co-defendant’s statement facially implicated the defendant, and the

Court concluded that such prejudice could not be cured by the trial judge’s

limiting instruction.13 But the Court later concluded in Richardson v. Marsh

that there was no reason to depart from the general rule that “juries follow their

instructions” when the adverse statement “was not incriminating on its face, and

became so only when linked with [other] evidence introduced later at trial.”14

In this case, Collins’s statement only implicates Harper if one infers that

the crack cocaine found in the microwave belonged to Harper, based on other

evidence showing that Harper resided at the house. In other words, Collins’s

statement only became incriminating when linked with the other circumstantial

evidence of Harper’s presence and activity atthe house. Accordingly, “there does

not exist the overwhelming probability of [the jury’s] inability to” follow the

judge’s admonition to consider the statement as evidence only against Collins.15

The district court’s Crawford error was harmless and does not constitute

reversible error.
No. 05-10247

16 United States v. Cantu, 167 F.3d 198, 203 (5th Cir. 1999).

17 United States v. Coleman, 78 F.3d 154, 156 (5th Cir. 1996).

18 See United States v. Sockwell, 699 F.2d 213, 217 (5th Cir. 1983) (no error to exclude

superfluous documentary evidence where defendant’s testimony established the matter); FED.

R. EVID. 403.

9

B

Harper next argues that the district court erred in excluding the written

conviction records of a state witness on the basis that they were “repetitious” of

the witness’s admissions of the convictions during testimony. We review a

district court’s decision to admit or exclude evidence for abuse of discretion.16

Even if the district court abused its discretion, this court will not overturn a

conviction unless the defendant was prejudiced by the error.17

Harper offered certified copies of court records showing the five separate

convictions of Garrett, the confidential informant. The court excluded the

exhibits on the basis that they were “repetitious” and a “waste of time” because

Garrett testified and was cross-examined about his prior convictions.

Two of the exhibits that Harper sought to admit were records of Garrett’s

convictions for criminal mischief and attempted possession of a controlled

substance after violating his deferred adjudication probation by committing

theft-by-check. On direct exam, however, Garrett admitted the offenses.

Additionally, Collins’s attorney cross-examined Garrett about the convictions

and why deferred adjudication probation was revoked. Given that Garrett

admitted the prior convictions and was available for cross-examination, the

district court did not abuse its discretion in excluding the exhibits.18

Harper next argues that documentary evidence of Garrett’s conviction for

the misdemeanor offense of assault by bodily injury involving family violence is

admissible to show Garrett’s bias, because it showed that he had a pending

charge against him at the time of Harper’s alleged drug transaction and
No. 05-10247

19 Garrett testified at the October 26, 2004 trial that he had been working as a

confidential informant for six or seven months.

20 FED R. EVID. 609(a)(2) (emphasis added).

21 See United States v. Toney, 615 F.2d 277, 279-80 (5th Cir. 1980).

10

therefore that he would be motivated to “curry favor with the government.”

Garrett testified on direct examination that he was convicted in 2004 for the

family violence offense, but he indicated on cross-examination that he was not

certain of when in 2004 he was actually convicted. Because Garrett also testified

that he began working as a confidential informant in either March or April of

2004,19 his testimony could indicate that his conviction for family violence

occurred prior to when he began working as a confidential informant. The arrest

record showing that his misdemeanor conviction for family violence occurred on

June 30, 2004, nine days after Garrett’s June 21 drug buy in this case, could

therefore not be dismissed as redundant or duplicative, and the district court

abused its discretion in doing so.

The court likewise abused its discretion in refusing to admit the

documentary evidence of Garrett’s convictions for theft-by-check. Rule 609(a)(2)

provides that “evidence that a witness has been convicted of a crime shall be

admitted regardless of the punishment, if it readily can be determined that

establishing the elements of the crime required proof or admission of an act of

dishonesty or false statement by the witness.”20 The two theft-by-check

convictions fall under Rule 609(a)(2) because they have as an element “an act of

dishonesty or false statement by the witness.” Crimes qualifying for admission

under Rule 609(a)(2) are not subject to Rule 403 balancing and must be

admitted.21

Additionally, Garrett did not clearly admit to the theft-by-check

convictions, but rather only indicated that he was “possibly” convicted for them.

Garrett said that his deferred adjudication probation for the criminal mischief
No. 05-10247

22 See United States v. Bishop, 264 F.3d 535, 546 (5th Cir. 2001).

23 FED. R. CRIM. P. 52(a).

24 See United States v. Olano, 507 U.S. 725, 734 (1993).

11

and attempted possession charges had been revoked for failure to report to his

probation officer and/or drug use. The documentary evidence shows that the

revocation was due to the theft-by-check offenses. Such evidence also impugns

Garrett’s credibility. Given Rule 609(a)(2)’s mandate, and the fact that Garrett

did not admit to the two convictions (and thus the records would not have been

cumulative of the testimony), the district court abused its discretion by not

admitting the documentary evidence of Garrett’s theft-by-check convictions.

We must determine whether the error was harmless.22 Harmless error is

“[a]ny error, defect, irregularity or variance which does not affect substantial

rights.”23 It arises when the mistake fails to prejudice the defendant because it

has not “affected the outcome of the district court proceedings.”24

Harper claims that he was prejudiced because the exhibits “would have

been very damaging to the credibility of Garrett” and the Government’s case

against Harper “depended heavily—perhaps entirely—upon the jury’s

assessment of Garrett’s credibility.” But the testimony concerning Garrett’s

three prior convictions placed his credibility squarely before the jury, and

Garrett’s testimony established that he had a history of criminal conduct, and

that he was a paid informant working for the Government. Although there is a

plausible argument that the two theft-by-check convictions speak uniquely to

Garrett’s ability to testify honestly, Harper does argue that those two convictions

would have impeached Garrett’s credibility in a manner unique from the other

convictions. Because the district court’s error did not affect the outcome of the

district court proceedings, the error was harmless and reversal is not required.

C
No. 05-10247

25 United States v. Rodriguez, 993 F.2d 1170, 1176 (5th Cir. 1993).

26 United States v. Rasco, 123 F.3d 222, 231 (5th Cir. 1997).

27 United States v. Greer, 968 F.2d 433, 435 (5th Cir. 1992) (en banc) (internal quotation

omitted).

12

Harper next argues that the district court erred when it refused to ask the

jury panel three proposed questions about the jury’s ability to follow anticipated

jury instructions about the law of conspiracy and aiding and abetting. We

review a district court’s refusal to question potential jurors regarding a

particular provision of law for abuse of discretion.25 “The trial court has broad

discretion to determine who will question potential jurors and what questions

will be asked.”26 “We grant broad discretion to the trial judge in making

determinations of impartiality and will not interfere with such decisions absent

a clear abuse of discretion.”27

One proposed question concerned Harper’s defense theory and provided

that a defendant’s “mere presence” does not establish proof of conspiracy. The

other two questions outlined the elements the government would have to prove

for conspiracy and aiding and abetting and asked the jury whether they would

be able to follow the law and require the government to prove the elements

beyond a reasonable doubt. The district court instead asked the potential jurors

a general question about their ability to follow the law and the instructions of

the court: 

Is there anyone on the jury panel who, for religious reasons or

otherwise, could not follow the legal instructions of the law as the

Court gives it to you without questioning the wisdom or correctness

of that law? Because the jury is obligated to do that. Is there

anyone who has a hesitancy to say that you would strictly follow the

law as the Courtinstructs you the law is and instructs you to follow?

Harper asserts that his proposed questions were designed to detect the

bias of potential jurors against specific provisions of law, and in particular,
No. 05-10247

28 Rodriguez, 993 F.2d at 1176.

29 Greer, 968 F.2d at 435 (quoting United States v. Saimiento-Rozo, 676 F.2d 146, 148

(5th Cir. 1982)).

30 Id. (citing United States v. Brown, 799 F.2d 134, 136 (4th Cir. 1986)).

31 Rodriguez, 993 F.2d at 1176.

13

detect whether any juror held the opinion that mere association with drug

traffickers would be sufficient to establish guilt of drug trafficking. He argues

that the district court’s refusal to ask specific questions prevented him from

discovering any such juror bias and thus was an abuse of discretion.

“[A] trial court is not obligated to inquire as to whether the prospective

jurors would accept any particular proposition of law.”28 “The test for

determining whether a court has adequately questioned prospective jurors

regarding bias is whether ‘the means employed to test impartiality have created

a reasonable assurance that prejudice would be discovered if present.’”29“A

court abuses its discretion when the scope of voir dire is inadequate to discover

bias and deprives the defendant of an opportunity to make reasonable use of

peremptory challenges.”30

The district court did not abuse its discretion when it declined to ask

questions about potential jurors’ ability to follow specific provisions of law and

instead asked generally whether the jury would follow the law as instructed. In

United States v. Rodriguez, this court considered whether the district court

abused its discretion when it refused to ask a question concerning the

defendant’s Fifth Amendment right not to testify.31 We declared that a district

court had no obligation to ask the jury about specific provisions of law and

concluded that there was no abuse of discretion where the district court

“questioned the jurors as to their ability to be impartial and to follow the law as
No. 05-10247

32 Id.

33 See id.

14

instructed at the end of the trial and instructed the jurors prior to their

deliberations as to the Fifth Amendment privilege.”32

In this case,the district court asked the potential jurors abouttheir ability

to follow legal instructions and admonished the jury that it was “obligated to do

that.” After the jury was sworn and before evidence was presented, the district

court again instructed the jury that “[y]ou will then have to apply those facts to

the law as the Court will give it to you. You must follow that law whether you

agree with it or not.” At the conclusion of the case the district court instructed

the jury: 

in reaching your decision as to the facts, it is your sworn duty to

follow all of the rules of law as I explain them to you. You have no

rightto disregard or give special attention to any one instruction, or

to question the wisdom or correctness of any rule I may state to you.

You must not substitute or follow your own notion or opinion as to

what the law is or ought to be. It is your duty to apply the law as I

explain it to you, regardless of the consequences. 

The district court did not abuse its discretion in refusing to ask Harper’s

proposed questions.33

III

A

We now address the arguments raised by Collins, who first argues thatthe

district court erred in using a conviction in this case as a “prior conviction” for

sentencing purposes. The jury convicted Collins on Counts Four and Ten, which

were both charges for possession of a weapon during a drug trafficking crime in

violation of 18 U.S.C. § 924(c)(1). Count Four related to possession of a weapon

on June 25, 2004, and Count Ten related to possession of a weapon on July 26,

2004. During sentencing, over Collins’s objection to the PSR, the district court
No. 05-10247

34 543 U.S. 220 (2005).

35 508 U.S. 129,132–33 (1993).

36 Id. at 132.

37 See United States v. Thompson, 454 F.3d 459, 467 (5th Cir.), cert. denied, 127 S.Ct.

602 (U.S. Nov. 13, 2006).

15

treated Count Four as a prior conviction and enhanced the sentence for Count

Ten to twenty-five years (to be served consecutively to the five years for Count

Four).

Collins argues that treating his conviction on Count Ten as a “second or

subsequent conviction” violated his Sixth Amendment right to trial by jury

because the CountTen conviction was in reality a “simultaneous conviction.” He

also argues that whether a conviction is a “second or subsequent” conviction is

a fact for the jury to determine beyond a reasonable doubt. Finally, he argues

that the “prior conviction” enhancement violates United States v. Booker.34

Collins acknowledges that his argument is foreclosed by Deal v. United

States, in which the Supreme Court held that when a defendant is convicted of

multiple counts in violation of § 924(c)(1) in a single proceeding, the convictions

on all counts after the first one may be treated as “second or subsequent

convictions.”35 The Court rejected the argument that to be treated as a “prior

conviction,” the conviction must be a final judgment from a prior proceeding.36

Deal remains intact after Booker.37

B

Collins next argues that the district court erred by imposing an

unreasonable sentence. Collins was sentenced to 370 months for his conviction

of the six counts charged. Collins argues that his thirty-year sentence is

unreasonable because it is inconsistent with the applicable Guidelines’ range

and is greater than necessary to comply with the purposes of sentencing setforth
No. 05-10247

38 Section 924(c) provides: “no term of imprisonment imposed on a person under this

subsection shall run concurrently with any other term of imprisonment imposed for the . . .

drug trafficking crime during which the firearm was used, carried, or possessed.” 18 U.S.C. §

924(c)(1)(D)(ii). Section 924(c) further provides that the term of imprisonment for a violation

of the statute is five years for the first offense and twenty-five years for second or subsequent

offense. Id. § 924(c)(1)(A)(i), (C)(i).

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

v. Phillips, 382 F.3d 489, 499 (5th Cir. 2004)) (alterations and emphasis in original). 

16

in 18 U.S.C. § 3553(a). He argues that several mitigating factors justify a lower

sentence: his young age, that he sought drug rehabilitation in prison, that this

was his first brush with the law, and that the sentence amounts to a life

sentence. 

Collins’s 370-month sentence is an aggregate sentence based on his

conviction on six counts. He was sentenced to ten months imprisonment on each

of Counts One, Two, Three, and Nine, to be served concurrently; 60 months

imprisonment on CountFour; and 300 months imprisonment on CountTen. The

court ordered that the 10-month, 60-month, and 300-month sentences be served

consecutive to one another. Both the 60-month and 300-month sentences were

statutory minimums,38 and the district court could “‘impose a sentence of

imprisonment below a statutory minimum . . . only if: (1) the Government [so

moves] pursuant to 18 U.S.C. § 3553(e)[,] asserting the defendant’s substantial

assistance to the Government; or (2) the defendant meets the “safety valve”

criteria set forth in 18 U.S.C. § 3553(f).’ Otherwise, post-Booker sentencing

courts lack discretion to depart below relevant statutory minimums.”39 In this

case, the government did not move for a lower sentence and Collins does not

raise an argument under § 3553(f). The district court could therefore not depart

below the sentences it actually imposed for Counts Four and Ten.

Accordingly, the district court only had discretion with regard to the 10-

month sentence imposed for Counts Ten, Two, Three and Nine. The applicable

Guidelines’ range for those counts is 63-79 months, and Collins makes no
No. 05-10247

17

sufficient argument for why the court’s substantially lower sentence was

unreasonable.

* * * * * *

For the foregoing reasons, we AFFIRM the convictions.