UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 96-40508

__________________

United States of America,

Plaintiff-Appellee,

versus

Ricky J. Shugart,

Defendant-Appellant.

______________________________________________

Appeal from the United States District Court for the

Eastern District of Texas

______________________________________________

July 14, 1997

Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

The appellant, Ricky Joe Shugart, challenges his conviction

and sentence for manufacturing methcathinone in violation of 21

U.S.C. § 841(a)(1) and possessing ephedrine with the intent to

manufacture methcathinone in violation of 21 U.S.C. § 841(d)(1).

We conclude that the good-faith exception to the exclusionary rule

defeats Shugart’s arguments that evidence of methcathinone

production secured pursuant to search warrants was erroneously

admitted into evidence. We also hold that evidence found on

Shugart’s person when he was arre sted was properly admitted into1 It is undisputed that ephedrine has lawful uses as an appetite

suppressant and that it is not illegal to order the drug from mailorder houses.

2 evidence as fruits of a lawful search incident to an arrest.

Moreover, we conclude that the district court did not abuse its

discretion by admitting other challenged evidence or by declining

to grant Shugart’s motion for a new trial based on newly discovered

evidence. Finally, we conclude that the district court committed

no error in calculating Shugart’s sentence. Accordingly, the

judgment of the district court is affirmed in all respects.

I. Background

United States Drug Enforcement Agency (“D EA”) agents began

investigating the all eged narcotics activity of Shugart and his

sister, Lori Ann Leach, when Agent Michael Keene received a tip

that Shugart and Leach were involved in the illegal production of

methca thinone. The tip was provided by a DEA agent in Wichita,

Kansas, who told Agent Keene that a confidential informant (“CI”)

in Kansas told him that Shugart was in possession of a “NMethcathinone laborat ory.” The CI also alleged that Shugart was

ordering ephedrine, a substance needed to produce methcat hinone,

from Olympus Distributing Company (“Olympus”) and T&M Distributing

C ompany (“T&M”), and that Shugart occasionally directed Leach to

order the ephedrine. 1 The CI also stated that he had been on

Shugart’s and Leach’s properties near Bonham, Texas, in the month

preceding the tip, and had observed a methcathinone laboratory on

Shugart’s property, and othe r chemicals used to produce

methcathinone on Leach’s property.3

Before taking further action, Agent Keene sought to verify the

information provided by the CI. In this regard, Agent Keene

contacted T&M and asked whether Shugart or Leach had ordered

ephedrine. A representative of T&M told Agent Keene that Shugart

and Leach had recently placed several large orders for ephedrine

that were shipped to Bonham, Texas.

On November 8, 1994, a T&M representative phoned Agent Keene

and informed him that Shugart had recently placed an order for

3,000 tablets of ephedrine to be sent to a post office box in

Randolph, Texas. Agent Keene confirmed this information by

contacting a postal inspector who stated that a package from T&M

addressed to Shugart had arrived at the Randolph post office. The

post al inspector also told Agent Keene that another package

addressed to Shugart had arrived from Olympus. Both packages were

mailed collect on delivery, requiring Shugart to pay for the

packages before receiving them.

DEA agents and United States Postal Inspectors established

surveillance of the Randolph post office. At approximately 10:00

a.m. on November 14, 1994, Shugart and a woman, later identified as

his wife, arr ived at the post office. Shugart entered the post

office and paid for the package from Olympus. Shugart told a

postal inspector that he had only enough mone y to pay for one of

the packages and that he would return later for the package from

T&M. Shugart then returned to the car, and the agents followed him

and his wife to Leach’s mobile home, located in a rural area near

Bonham, Texas. Once there, Shugart exited the car and carried the4

package inside the mobile home. His wife, still followed by DEA

agents, then drove to a grocery store in Bonham, Texas, where a DEA

agent watched her purchase Red Devil Lye and Epsom Salt, which are

also ingredients necessary to produce methcathinone. The agents

continued to tail Shugart’s wife on the return trip to Leach’s

mobile home.

While conducting this surveillance, Agent Keene called the CI

in Kansas on a cellular phone. The CI stated that he had aided

Shugart in manufacturing methcathinone on Shugart’s property on two

separate occasions in August 1994. The CI also told Agent Keene

that he had observed methcathinone, ephedrine, and other chemicals

used to produce methcathinone on Leach’s property in August 1994.

Based on the DEA’s surveillance and his conversation with the

CI, Agent Keene decided to apply for warrants to search Shugart’s

and Leach’s properties. At approximately 2:00 p.m. the same day,

Agent Keene hastily d rafted an affidavit incorporating the above

facts and presented it to a magistrate judge in Sherman, Texas.

Before presenting the applications an d affidavit for the

search warrants to the magistrate, howe ver, Agent Keene noticed

that the applications and warrant forms contained several defects.

Apparently, the agent who prepared the documents utilized

boilerplate forms that had previo usly been used to acquire a

warrant authorizi ng a search for evidence of possession with the

intent to distribute cocaine. Both the applications for the search

warrants and the warrants themselves referred to “cocaine” rather

than “methcathinone.”5

Agent Kee ne brought the mistakes to the magistrate’s

attention, and the magistrate instructed him to mark through the

r eferences to “cocaine,” insert “methcathinone,” and initial the

hand-written ch a nges. Agent Keene complied with these

instructions, and the mag istrate signed the warrants containing

Agent Keene’s interlineations.

Agent Keene and the Assistant United States Attorney assigned

to the case failed to detect the same mistake on a fo rm entitled

“Application and Affidavit for Search Warrant,” which served as a

cover sheet for Agent Keene’s affidavit in support of the warrants.

On that document, the items to be searched for and seized were

described as “evidence, instrumentalities or fruits of the crime of

conspiracy to possess or distribute cocaine.”

After th e warrants were issued, Agent Keene returned to

Bonham, Texas, and briefed the DEA raid team that was to execute

the warrants. The agents discussed the facts leading to the

acquisition of the search warrants, as well as the fact that

Shugart had a previous weapons conviction. The agents determined

that they would raid Leach’s mobile home and an unattached, openfaced garage adjacent to the mobile home simultaneously because

agents had observed a person in the garage and were concerned that

he or she might pose a safety risk to the agents.

The agents who raided the garage found Shugart standing near

the center of the structure in clos e proximity to a work bench,

which contained glass laboratory equipment, bottles of various

substances, and several electric hand mixers, one of which was6

gyrating intermittently as if there was a short in its power

s ource. DEA agent Martin Suell, the first agent to enter the

garage, identified himself and commanded Shugart to lie on the

floor. After Shugart complied with this order, he was handcuffed

by another agent. The agents frisked Shugart and found numerous

“plastic baggies” in his coat pocket, which were ultimately seized.

The agent then read Shugart his Miranda rights. Chemists were

called to Leach’s property, and they and the DEA agents processed

the scen e. Agents subsequently seized several containers

containing liquid sub stances, measuring cups, funnels, an empty

ephedrine bottle, and various other substances and laboratory

equipment from the garage.

At some p oint during these events, DEA agents transported

Shugart to his nearby mobile home and executed the second search

warrant issued by the magistrate. Assorted chemistry magazines,

literature on clandestine labs, and a letter were found and seized

from Shugart’s property.

Although Shugart was readily availabl e

, DEA agents asked

Shugart’s wife if she would accompany them to the Randolph post

office and sign for the the package of ephedrine sent from T&M to

her husband. Shugart’s wife agreed, and with her help, agents

seized the package from the post office. Subsequently, Shugart’s

wife signed a consent-to-search form authorizing the agents to open

the package. When the agents opened the package, they found 3,0002 The district court excluded this evidence from trial. The court

concluded that the government failed to carry its burden of showing

that the search of the package from T&M was j ustified by consent

and that a warrantless search of the package was, therefore, in

violation of the Fourth Amendment.

3 The district court granted Leach’s motion to suppress the

evidence found during a search of her mobile home, as well as

incriminating statements that she made during that search, based on

violations of the federal “knock and announce” statute. S ee 18

U.S.C. § 3109. The government subsequently dismissed all charges

against Leach and the conspiracy count against Shugart.

7 ephedrine tablets. 2

A federal grand jury returned a three-count indictment against

Shugart. Count one charged him with conspiracy to manufacture

methcathinone in violation of 21 U.S.C. § 846. Count two charged

Shugart with manufacturing methcathinone in violation of 21 U.S.C.

§ 841(a)(1). Finally, count three charged Shugart with possession

of a listed chemical, ephedrine, with intent to manuf acture

methcathinone in violation of 21 U.S.C. § 841(d)(1).

A jury trial was conducted on May 16, 1995. 3 The jury found

Shugart guilty of manufacturing methcathinone. In addition, the

jury found Shugart guilty of the necessary included offense of

attempting to manufacture methcathinone. Finally, the jury found

Shugart guilty of possession of e phedrine with the intent to

manufacture methcathinone.

Shugart’s presentence report (“PSI”) recommended a base

offense level of 26 under the applicable Sentencing Gu idelines.

This recommendation was based on a probation officer’s estimate of

the amount of methcathinone that Shugart attempted to produce. To

make this calculation, the probation officer estimated the amount8

of methcathinone that could be produced from the amou nt of

ephedrine that Shugart ordered, assuming a 50% yield.

The dis trict court rejected the 50% yield rate suggested by

the PSI and found that a yield rate of 27% was more reasonable.

Thus, the district court found that the 39,000 ephedrine tablets

ordered by Shugart would produce 263.25 grams of methcathinone. In

light of this calculation and Shugart’s criminal history category

of VI, the district court identified a sentencing range of 120-150

months. The district court then sentenced Shugart to 120 months

incarceration on both counts of conviction, to run concurrently,

followed by three years of supervision.

On December 8, 1995, Shugart filed a motion for a new trial,

arguing that the government failed to disclose exculpatory

evidence. On April 11, 1996, the district court concluded that the

subject evidence was not material and denied Shugart’s motion for

a new trial. Shugart timely filed his notice of appeal, and this

appeal followed.

II. Search and Seizure

A. Probable Cause to Search

Shugart argues that Agent Keene’s affidavit in support of the

search warrants failed to establish probable cause to believe that

evidence of a crime would be found on Shugart’s or Leach’s

property. Specifically, Shugart claims that the affidavit failed

to establish probable cause because it relied on info rmation

provided by an untrustworthy confidential informant and because it

contained material errors, namely references to “cocaine” rat her4 The government argued in the district court that Shugart lacked

standing to challenge the legality of the search of his sister’s

garage. The district court concluded that resolution of the

standing issue was unnecessary, given its ultimate conclusion that

the search warrant was supported by probable cause. We similarly

decline to reach the standing issue based on our conclusion that

the good-faith exception to the exclusionary rule applies. Cf.

United States v. Blocker , 104 F.3d 720, 725 n.3 (5th Cir. 1997).

5 This case does not present a novel question of law. S ee

Satterwhi te , 980 F.2d at 320 (recognizing that “whether, on the

particular facts of [a] case, the affidavit supporting the search

warrant established pr obable cause to search” was not a novel

question of law).

9 than “methcathinone.” Therefore, Shugart contends that the

evidence seized as a result of the searches should have been

excluded from evidence and that the district court’s denial of his

suppression motion constituted reversible error. 4

This court re views conclusions of law regarding the

sufficiency of a warrant de novo

. U nited States v. Richardson

, 943

F.2d 547, 549 (5th Cir. 1991). Our review involves a two-step

process, w hereby we must first determine whether the good-faith

exception to the exclusionary rule applies. See United States v.

Leon

, 468 U.S. 897, 922-23, 104 S. Ct. 3405, 82 L.Ed.2d 677 (1984);

United States v. Satterwhite

, 980 F.2d 317, 320 (5th Cir. 1992).

Only if a novel legal question is presented or the good-faith

exception does not apply must we then “ensure that the magistrate

had a substantial b asis for concluding that probable cause

existed.” 5 I llin ois v. Gates , 462 U.S. 213, 238-39, 103 S. Ct.

2317, 76 L.Ed.2d 527 (1983) (internal quotations omitted); see also

United States v. Pena-Rodriguez

, 110 F.3d 1120, 1130 & n.10 (5th

Cir. 1997).10

The good-faith exception to the exclusionary rule pro vides

“that evidence obtained by law enforcement official s acting in

objectively reasonable good-faith reliance upon a search warrant is

adm issible in the prosecution’s case-in-chief, even though the

affidavit on which the warrant was based was insufficient to

establish probable cause.” United States v. Craig , 861 F.2d 818,

821 (5th Cir. 1988) (citing Leon , 468 U.S. at 922-23). “Issuance

of a warrant by a magistrate normally suffices to establish good

faith on the part of law enforcement officers who conduct a search

pursuant to the warrant.” I d. Nonetheless, the officers’ good

faith cannot be established, for example, when a warrant is “based

on an affidavit so lackin g in indicia of probable cause as to

render official belief in its existence entirely unreasonable.”

Leon , 468 U.S. at 923.

Agent Keene’s affidavit provided sufficient “indicia of

probable cause” for reasonable law enforcement officers to believe

that the procured warrants were valid . The affidavit related

information from the CI that strongly suggested that Shugart was

involved with methcathinone production. For example, the informant

was aware that Shugart and Leach had ordered large amounts of

ephedrine, an essential ingredient used to manufacture

methcathinone. In addition, the CI had observed a “methcathinone

laboratory” on Shugart’s property in the recent past. The CI had

also witnessed Shugart manufacturin g methcathinone on two prior

occasions. Finally, the CI had observed methcathinone and other

chemicals used to manufacture the drug on Leach’s property.11

The government, however, did not rely exclusively on the CI’s

uncorroborated allegations wh en it sought the warrants to search

Shugart’s and Leach’s properties. Instead, DEA agents verified

much of the information provided by the CI through their

independe nt investigation of Shugart’s activities. For example,

the agents determined that Shugart and Leach had ordered ephedrine

from the same companies referenced by the CI. Moreover, on the day

of the search, the agents observed several key ingredients used in

the production of methcathinone, including ephedrine, being brought

to Leach’s mobile home.

Thus, the CI’s reliability in this case was strengthened by

the DEA’s independent investigation, which corroborated important

aspects of the information provided by the informant. See United

States v. Broussard , 987 F.2d 215, 221-22 (5th Cir. 1993),

overruled on other grounds sub nom.

, J.E.B. v. Alabama ex rel T.B.

,

511 U.S. 127, 114 S. Ct. 1419, 128 L.Ed.2d 89 (1994) (holding that

information supplied by a confidential informant, which was

corroborated by other evidence, supported a magistrate’s finding of

probable cause, despite a lack of evidence regarding the

informant’s reliability or veracity). Moreover, the reliability of

the CI’s information was enhanced by the fact that his statements

were inculpatory and could potentially subject him to criminal

sanctions. S ee United States v. McKeever

, 5 F.3d 863, 865 (5 t h

Cir. 1993) (“The fact that the CI’s statements were against his own

penal interest amounts to substantial corroboration”). Under these

circumstances, we believe that a reasonable officer could easily12

have conclude d that Agent Keene’s affidavit contained probable

cause sufficient to justify issuance of the subject warrants.

The tech nical errors in the applications for the search

warrants do not undermine this conclusion. Agent Keene pointed out

the errors to the magistrate and corrected the majority of them

pursuant to the magistrate’s instructions. It is undisputed that

any errors that r emained were the result of an oversight by both

Agent Keene and the magistrate. Under these circumstances, we

believe that the good-faith exception applies, and the district

court did not err in denying Shugart’s motion to suppress.

B. Sufficient Particularity

Shugart argues that the challenged search warrants failed to

authorize the seizure of evidence of drug manufacturing. Instead,

the search warrants contained boilerplate provisions obviously

intended for use in cases involving possession with the intent to

distribute narcotics. Nonetheless, the agents searched for and

seized evidence related to methcathinone production. Thus, Shugart

argues that the warrants did not describe with sufficient

particularity the things to be seized and that evidence of drug

manufacturing obtained during the searches should have been

excluded from trial. Shugart contends that the district court’s

failure to exclude such evidence constituted reversible error.

The Fourth Amendment requires a search warrant to describe

with sufficient particularity the items to be seized. S ee U.S.

C ONST

. amend. IV (statin g that a warrant must “particularly

describ[e] the place to be searched and the persons or things to be6 Exhibit B provided the following list of items to be seized:

N-Methcathinone, currency, scales, travel records, receipts, copies

of cashier checks, copies of money orders, checking account records,

notes, correspondence, customer lists, ledgers, bank safety deposit

box records, address/telephone lists or books, photographs, jewelry,

titles, deeds, stock certi f icates, guns, telephone pagers, radio

scanners, computers and accessories, and other items evidencing the

importation, purchase, and/or distribution of methcathinone and the

obtaining, secreting, transfer, and/or concealment of assets and/or

money, which are fruits, evidence, and instrumentalities related to

violation of Title 21, United States Code, Sections 841(a)(1), 846,

and 848.

13 seized”). The applicable test requires this court to ask whether

“the description in the warrant would permit an executing officer

to reasonably know what items are to be seized.” U nited States v.

Beaumont

, 972 F.2d 553, 560 (5th Cir. 1992), cert. denied

, 508 U.S.

926, 113 S. Ct. 2384, 124 L.Ed.2d 288 (1993). In addition, this

court has held that the particularity requirement may be satisfied

“by reliance on an affidavit when the affidavit is incorporated by

reference into the warrant.” I d. at 561; but cf. United States v.

Haydel , 649 F.2d 1152, 1157 (5th Cir. Unit A 1981), cert. denied

,

455 U.S. 1022, 102 S. Ct. 1721, 72 L.Ed.2d 140 (1982) (“An

insufficient warrant cannot be cured by the most detailed

affidavit”).

Although Agent Keene’s affidavit made clear that the DEA was

seeking a warrant to search for evidence of methcathinone

production, the search warrants did not mention drug manufacturing

or incorporate Agent Keen e’s affidavit. Instead, the warrants

authorized the government to seize the property “described on the

attached Exhibit ‘B.’” 6 The only terms in that exhibit, however,

that could arguably have encompassed evidence of drug manufacturing14

wer e also so broad as to constitute the type of general warrant

that has “long been abhorred in the jurisprudence of both England

and the United States.” B e aumont , 972 F.2d at 560. Thus, the

warrants in the in stant case were insufficient to satisfy the

particularity requirement of the Fourth A mendment. Unless the

good-faith exception to the exclusionary rule applies, the district

court erred by denying Shugart’s motion to suppress.

On the same day that the Supreme Court decided Leon , it also

issued its opinion in Massachusetts v. Sheppard

, 468 U.S. 981, 104

S. Ct. 3424, 82 L.Ed. 2d 737 (1984). In S heppard

, the defendant

argued th at a warrant authorizing a search for “controlled

substances” violated the Fourth Amendment’s particularity

requirement. Id. at 987. The challenged warrant was accompanied

by a detailed affidavit, which indicated that the search was for

items related to a homicide investigation. I d. at 985. It was

undisputed that the issuing magistrate and the executing officers

knew the contents of the aff idavit and the focus of the search.

Relying on Leon

, the Court noted that the only issue before it was

“whether the of ficers reasonably believed that the search they

conducted was authorized by a valid warrant.” I d. at 988. Because

the officers’ subjective belief in the validity of the warrant was

uncontested, the Court explained that the only remaining issue was

“whether there was an objectively reasonable basi s for the

officers’ mistaken belief.” I d. The Court concluded that the

officers’ good-faith reliance on the warrant was objectively

reasonable because the affidavit had been approved by the U.S.7 In this regard, the Court observed that “if the judge had

crossed out the reference to controlled substances, written ‘see

attached affidavit’ on the form, and attached the affidavit to the

warrant, the warrant would have been valid.” I d. at 985 n.7

(internal citations omitted).

15 Attorney, the issuing magistrate had made a probable-cause

determination, and the warrant would have been valid on its face

with only minor corrections. 7 Id. at 989.

In United States v. Beaumont

, 972 F.2d at 562, this court

applied the good-faith ex ception to uphold the admissibility of

evidence seized during a search, despite the fact that the warrant

authorizing the search failed the particularity requirement. The

court reli ed on S heppard and concluded that the officers’ goodfaith reliance on the war rant was objectively reasonable because

“there was a probable cause determination made by [a] judge, the

affidavit provided specific information of the objects of the

search, the executing officer was the affiant, the additional

officers making the search knew what was to be searched for, and,

finally, the warrant could easily have been made valid by the

insertion of the phrase ‘see attached affidavit.’” Id. Because

the instant case is indistinguishable from Beaumont

, the good-faith

exception applies, and the district court did not err in denying

Shugart’s motion to suppress.

C. Probable Cause to Arrest

Shugart argues that the d istrict court erred by admitting

“plastic baggies” and a receipt from an ephedrine manufacturer into

evidence. This evidence was found in Shugart’s pockets when DEA

agents conducted a search of his person shortly after entering16

Leach’s garage pursuant to a search warrant. Shugart contends that

t he search of his person violated his fourth amendment rights

because it was conducted before the agents had probable cause to

arrest him. In contrast, the government argues that Shugart’s

arrest was supported by probable cause and that the subsequent

search of his external clothing was justified as a search incident

to a lawful arrest.

The Fourth Amendment requires that a warrantless arrest be

based upon probable cause. United States v. Levine , 80 F.3d 129,

132 (5th Cir.), cert. denied

, — U.S. —, 117 S. Ct. 83, 136 L.Ed.2d

40 (1996). Thus, in determining whether to suppress the subject

evidence, the pertinent inquiry is whether the agents had probable

cause to arrest Shugart. “Probable cause exists when the totality

of the facts and circumstances within a [law enforcement] officer’s

knowledge at the moment of arrest are sufficient for a reasonable

person to conclude that the suspect had committed or was committing

an offense.” Id.

At the time the DEA agents entered Leach’s garage, they were

aware that Shugart had retrieved a package containing ephedrine, an

essential ingredient in methcathinone production, and brought it to

the mobile home. They also knew that other chemicals used to

produce methcathinone had been brought to the mobile home.

Moreover, the agents had been informed by the CI that Shugart was

in po s session of a methcathinone laboratory, had manufactured

methcathinone in the past, and was ordering ephedrine to use in the

manufacturing process. Notably, when the agents entered the17

garage, they observed Shugart in close proximity to an array of

laboratory equipment and several vessels containing liquid

substances. A hand mixer appeared to have been recently used, as

it was gyrating intermittently.

Based on these facts, the agents had probable cause to believe

that Shugart had been or was in the process of manufacturing

methcathinone when they found and arrested him in the garage. The

subsequent search of Shugart’s clothing was justified, in turn, as

a search incident to his lawful arrest. See, e.g.

, United States

v. McFarland , 633 F.2d 427, 429 (5th Cir. 1980) (“The purpose of

the doctrine permitting searches incident to arrest is to allow

discovery and preservation of destructible evidence ....”) (citing

Chimel v. California

, 395 U.S. 752, 762-63, 89 S. Ct. 2034, 23

L.Ed.2d 685 (1969)). The district court, therefore, did not err in

denying Shugart’s motion to suppress the evidence found in his

pockets during his arrest.

III. Evidentiary Issues

A. Photographs

Shugart argues that photographs of laboratory equipment and

chemicals fou nd in the search of Leach’s garage were improperly

admitted into evidence. Shugart claims that the agents rearranged

the evidence before the photographs were taken and thereby conveyed

a false impression of the crime to the jury . In response, the

government argues that movement of the items depicted in the

photographs went to the photographs’ weight, not to their

admissibility.18

Decisions regarding the admissibility of evidence are reviewed

for an abuse of discretion. See, e.g.

, United States v. Carillo

,

20 F.3d 617, 620 (5th Cir.), cert. denied

, 513 U.S. 901, 115 S. Ct.

261, 130 L.Ed.2d 181 (1994). Even if an abuse of discretion

occurred, this court must determine “whether the error was harmless

or whether the error requires reversal because, when viewed in the

light of the entire record, it affected the substantial rights of

the defendants.” United States v. Humphrey , 104 F.3d 65, 70 (5th

Cir.), cert. denied , — S. Ct. —, 1997 WL 195218 (May 19, 1997).

The district court did not abuse its discretion by admitting

the challenged photographs into evidence. The photographs were

offered for the purpose of showing the jury the lab oratory

equipm ent and chemicals found at the scene of the crime, not to

demonstrate precisely what the crime scene looked like. In this

regard, the government agen ts who testified at trial freely

disclosed that they m oved the evidence prior to photographing it

and that the photographs did not accurately depict the scene of the

crime.

B. Business Records

Shugart argues that the district court erred in admitting the

business r e cords of two ephedrine distributors into evidence.

These records consisted of order forms filled out by employees of

the distributors. The order forms indicated that calls were made

from numbers assigned to Shugart’s parents and sister to the

ephedrine distributors and that, as a result, the distrib utors

shipped orders of ephedrine to Leach’s address and Shugart’s post8 Specifically, Shugart contends that information provided by the

caller regard ing his or her name, address, phone number, and

desired product was inadmissible hearsay.

19 office box. Shugart argues that the business records were

inadmissible double hearsay.

At trial, the parties stipulated that the order forms

constituted business records of T&M and Olympus. This stipulation

also provided that the names given by callers to the businesses

would be redacted from the records. Although Shugart contends that

any information p rovided by the callers constituted inadmissible

double hearsay, 8 we believe that such information was not hearsay

at all. The challenged business records were not offered to prove

that factual matters asserted by the callers were true. Instead,

the business records were offered to prove that the callers

provi ded certain information to the distributors and that orders

were shipped to certain addresses as a result. Because the

information provided by the callers was not hearsay, the district

court did not abuse its discretion by admitting the subject

business records into evidence.

IV. Motion for a New Trial

After his conviction, Shugart moved for a new trial, arguing

that the govern ment failed to disclose exculpatory evidence in

violation of Brady v. Maryland

, 373 U.S. 83, 83 S. Ct. 1194, 10

L.Ed.2d 215 (1963). Shugart claimed that the government failed to

disclose the affidavit of Troy Derby, a special agent for the DEA.

Agent Derby’s affidavit contained statements made by William

Killion, the confidential informant in this case, after he was9 In contrast, the government claimed that Killion taught Shugart

how to manufacture methcathinone and got him started in the

business.

20 arrested in Kansas for manufacturing methca thinone. In his

statements, Killion admitted that he was engaged in methcathinone

production with a woman named Carolyn Braddy, who allegedly ordered

the necessary chemicals and provided her residence as a place to

manufacture the drug.

Shugart argued that Killion’s statements were consistent with

his defense at trial, which attempted to prove that Killion was

solely responsible for ordering ephedrine and manufacturing

methcathinone. 9 Shugart claimed that just as Killion falsely

accused him of manufacturing methcathinone, Agent Derby’s affidavit

established that Killion used the same m odus operandi in m aking

false accusations against Braddy. The district court denied

Shugar t’s motion for a new trial, concluding that Agent Derby’s

affidavit was not “material.”

Motions for new trial based on newly discovered evidence are

generally disfavored. See United States v. Nixon , 881 F.2d 1305,

1311 (5th Cir. 1989); F ED

. R. C RIM

. P. 33. District courts have

“considerable discretion” in deciding R ule 33 motions. U nited

States v. MMR Corp.

, 954 F.2d 1040, 1047 (5th Cir. 1992). We

review the district court’s denial of a motion for a new trial for

an abuse of discretion. U nited States v. Freeman

, 77 F.3d 812, 815

(5th Cir. 1996).

Shugart was not entitled to a new trial unless a reasonable

proba b ility existed that the government’s disclosure of Agent21

Der by’s affidavit would have resulted in acquittal. S ee United

States v. Bagley

, 473 U.S. 66 7, 682, 105 S. Ct. 3375, 87 L.Ed.2d

481 (1985); MMR Corp.

, 954 F.2d at 1046. At trial, Shugart argued

that he was innocent and that Killion had used Shugart’s name to

order ephedrine and had manufactured methcathinone on his property.

Shugart contends that the newly discovered ev idence supports his

theory because it shows that Killion also used Braddy’s name and

residence to order and manufacture methcathinone. This

interpretation of the affidavit, however, relies on an unsupported

assumption that Braddy was also innocent and that Killion was lying

about her involvement to protect himself.

Even assuming Agent Derby’s affidavit is consistent w i th

Shugar t’s claim of innocence, we do not believe that presenting

such evidence to the jury would have increased the probability of

a different verdict. First, the government put on ample evidence

of Shugart’s direct i nvolvement in methcathinone production. In

fact, there was evidence that suggested that Shugart was in the

process of manufacturing methcathinone when he was ar rested.

Shugart’s the ory that Killion alone was responsible for

manufacturing methcathinone was also contradicted by orders for

ephedrine placed well after Killion had left Texas. Moreover, the

newly discovered evidence does not provide a new theory of the

case. Rather, the evidence, at most, bolsters a theory advanced at

trial. The jury rejected Shugart’s version of the events, and we

believe that it is unlikely that his “new” evidence would disturb

that conclusion. Because the evidence at issue does not undermine22

the jury’s verdict, the district court did not abuse its discretion

by denying Shugart’s motion for a new trial.

V. Sentencing Calculation

Shugart argues that the district court erred in calculating

his sentence under the ap plicable Sentencing Guidelines. It is

well settled that in reviewing an appeal from a guideline-based

sentence, this court “will uphold the district court’s sentence so

long as it results from a correct application of the guidelines to

factual findings which are not clearly erroneous.” S ee

, e.g.

,

United States v. Sarasti

, 869 F.2d 805, 806 (5th Cir. 1989).

Specific factual findings regarding the quantity of drugs to be

used in determining the base offense level are reviewed on appeal

only for clear error. U nited States v. Angulo

, 927 F.2d 202, 204-

05 (5th Cir. 1991). In making findings of fact pursuant to the

Sentencing Guidelines, a district court need only be convinced by

a preponderance of the evidence. U nited States v. Castro

, 889 F.2d

562, 570 (5th Cir. 1989), cert. denied , 493 U.S. 1092, 110 S. Ct.

1164, 107 L.Ed.2d 1067 (1990).

The district court found that 39,000 tablets of ephedrine were

ordered and intended for use by Shugart in the production of

methcathinone, and sentenced him accordingly. This court has

previously held that “[t]he exclusionary rule applicable to Fourth

Amendment violations is generally inapplica ble to the district

court’s considerati on of evidence for purposes of sentencing.”

United States v. Montoya-Ortiz , 7 F.3d 1171, 1181 (5th Cir. 1993)

(quoting United States v. Robins

, 978 F.2d 881, 891-92 (5th Cir.23

1992)). In addition, we hold today that placement of the subject

ephedrine orders was properly considered relevant conduct in this

case because Shugart intended to possess the ephedrine for the

purpose of manufacturing methcathinone and the orders were placed

in preparation for the of fenses of which he was convicted. S ee

U.S.S.G. § 1B1.3(a)(1). Based on these principles and our

independent exami nation of the record, we hold that the district

court did not clearly err by attributing 39,000 tablets of

ephedrine to Shugart.

For all of the foregoing reasons, Shugart’s convictions and

sentences are AFFIRMED.24