*In June 1994, when oral arguments were heard in this

appeal, Judge Robert M. Parker was chief judge of the Eastern

District of Texas, sitting on the appellate panel by designation.

As of the date of this opinion, Judge Parker has been confirmed

as a judge on the United States Court of Appeals for the Fifth

Circuit.

 

2"Whoever, with intent to defraud, passes ... or keeps in

possession or conceals any falsely made, forged, counterfeited,

or altered obligation of the United States, shall be fined not

more than $5,000 or imprisoned not more than fifteen years, or

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 93-3178

United States of America,

Plaintiff-Appellee,

VERSUS

Walter Wallace, Michael Felton, and Murray Sutton,

Defendants-Appellants.

Appeal from the United States District Court

for the Eastern District of Louisiana

(September 8, 1994)

Before REYNALDO G. GARZA, DeMOSS and PARKER*, Circuit Judges.

DeMOSS, Circuit Judge:

Defendant-appellants Michael Felton, Walter Wallace and Murray

Sutton were convicted by a jury on December 15, 1992 of 

(1) possession of counterfeited Federal Reserve notes, and 

(2) conspiracy to possess and pass counterfeited notes.2 The jury
both." 18 U.S.C. § 472. See also 18 U.S.C. 371 (conspiracy).

 

3Co-conspirator Leslie Collins was also convicted of

conspiracy and possession of counterfeited notes, but does not

appeal. Another co-conspirator, Douglas Friday, pleaded guilty

and testified for the government at trial pursuant to a plea

agreement.

 

4Wallace and Collins had both recently finished serving

their federal sentences for a previous counterfeiting conspiracy

which occurred in 1989. In the 1989 conspiracy, a different print

2

also convicted Felton of conspiracy to possess marijuana with the

intent to distribute under 21 U.S.C. §§ 841(a)(1) and 846. 

Felton, Wallace and Murray appeal their convictions and

sentences, raising various claims of error.3 We AFFIRM the

convictions of all three appellants. We AFFIRM the sentences of

Wallace and Sutton, but we VACATE Felton's sentence and REMAND the

case for re-sentencing of Felton.

FACTS

Because none of the appellants challenges the sufficiency of

the evidence to support his conviction on any count, our factual

discussion will be brief. The government proved, through testimony

of co-conspirator Doug Friday and other corroborating evidence,

that in 1991 and 1992 Friday and Felton made several trips from New

Orleans to the border town of Roma, Texas, to obtain marijuana and

bring it back to New Orleans to be sold.

The government also proved, through Friday's testimony and

other corroborating evidence, that in 1991 and 1992 Friday, Felton,

Collins, Wallace and Sutton made plans to print and distribute

counterfeit bills using defendant Wallace's print shop, Tiger

Press, in New Orleans.4 The government's investigation was aided by
shop, also owned by Wallace, had been used to print the money.

Evidence of the 1989 conspiracy was introduced at trial to show

intent, knowledge and plan.

3

a paid confidential informant who accompanied the conspirators in

their counterfeiting activity, and by surveillance of the

residences of Felton and Friday. A warrant search of Friday's

residence on January 23, 1992 resulted in the seizure of a paper

cutter, paper trimmings, latex gloves and more than $99,000 in

counterfeit notes. Appellants Wallace, Felton and Sutton appeal

their convictions and sentences, raising several arguments for

reversal.

DISCUSSION

Batson Challenge to Peremptory Strikes

During jury selection, the government used six of its nine

peremptory strikes to exclude black panel members from the jury.

The government's other three strikes were against white panel

members. The defendants objected pursuant to Batson v. Kentucky,

476 U.S. 79, 86 (1986)(holding that Equal Protection Clause forbids

litigants from exercising peremptory strikes on the basis of race).

A Batson challenge has three steps: (1) The defendant

establishes a prima facie case by raising an inference that the

prosecution struck potential jurors solely because of race. Batson,

476 U.S. at 96-97; (2) The burden then shifts to the prosecution to

articulate legitimate, clear, and reasonably specific explanations

for each of the challenged strikes. At this stage, the prosecution

need only give a facially valid explanation. United States v.

Bentley-Smith, 2 F.3d 1368, 1373 (5th Cir. 1993); (3) At the third
4

stage, the trial court determines whether the defendant has proven

purposeful discrimination. Bentley-Smith, 2 F.3d at 1373. The

appellate court reviews this finding for clear error, giving great

deference to the trial court's finding that the prosecutor's

explanation was credible. Id. at 1374; United States v. Terrazas

Carrasco, 861 F.2d 93, 94 (5th Cir. 1988). 

Defendants' challenge concerns the third step of the Batson

analysis -- they claim that the trial court clearly erred in

finding that the prosecution's reasons for striking the black panel

members were race-neutral and not a pretext for purposeful

discrimination. The government gave these reasons for its strikes:

(1) one black man was struck because he kept his hat on in court

even though the marshal had asked another person to remove his hat;

the prosecutor thought this showed a lack of respect for authority.

(2) a black female security officer employed by the New Orleans

Police Department was struck because one of the prosecutors had in

the past prosecuted several N.O.P.D. police officers and "although

she may not know me, I don't want her to hold it against me."

(3) a black woman was struck because she was retired and "seemed

very feeble and somewhat old," and the prosecutor didn't think she

could "hold her own in jury deliberation."

(4) one black panel member was struck because she was a social

worker and had been the victim of two car thefts. (the government

believes social workers tend to sympathize with criminal

defendants, and an important government witness, Douglas Friday,

was a two-time convicted car thief).

(5) one black panel member was struck because she had an ongoing

tax dispute with the federal government and had once been

represented by Felton's trial counsel. In addition, she was

employed as a social worker.

(6) the last excluded black panel member was also a social worker.

Defendants argue that the government's reasons are flimsy and

pretextual, and that the trial court clearly erred because it made
 

5We note in passing that government attorneys also objected

under Batson; the three defendants, all of whom were black, used

all 13 of their strikes against white panel members. The reasons

articulated by defense counsel for their strikes were largely

based on occupation, age and similar characteristics, although

several white panel members were eliminated "as a group decision

amongst defense counsel because there were more qualified white

representatives further down." The record indicates that 20

percent of the original panel members were black and 80 percent

were white. After several jurors were excused by the court for

cause, the panel was 18 percent black and 82 percent white. After

denying both Batson motions, the court commented: "It seems to me

that we have ended up with a very responsible group of citizens

who are not tilted one way or another as far as race goes." The

record does not show the racial composition of the chosen jury,

and none of the parties to this appeal have provided this

information to the court, although it might have given a clue as

to the government's intent for their peremptory strikes.

5

no specific credibility findings, but merely listened to the

government's race-neutral reasons and stated that "I don't see any

racial problem" with the jury. 

We find no basis for reversal. Jury selection is inherently

subjective, and Batson determinations largely turn on the trial

court's "evaluation of [the] credibility of counsel's explanation,"

Bentley-Smith, 2 F.3d at 1374. We hold that the trial court did not

clearly err in accepting the prosecution's race-neutral reasons.5

Limits on Cross-Examination

Defendants complain that the trial court violated their rights

under the Confrontation Clause of the Sixth Amendment when it

"severely limited" their cross-examination of Douglas Friday, a coconspirator who testified for the government pursuant to a plea

agreement. Defense lawyers questioned Friday regarding (1) his

understanding of his plea agreement with the government and his

reasons for entering into it; (2) the possible sentence he thought
6

he could receive; (3) whether he feared his girlfriend might be

prosecuted; and (4) whether he feared prosecution by state

authorities in Louisiana or Texas. The court ruled repeatedly that

many of these questions called for legal conclusions and were

improper, and told Friday not to answer.

We have held that restrictions on the scope of crossexamination rest within the sound discretion of the trial judge.

See, e.g., United States v. Summers, 598 F.2d 450, 460 (5th Cir.

1979). In addition, a defendant's Sixth Amendment rights do not

"guarantee cross-examination that is effective in whatever way and

to whatever extent, the defense might wish." Delaware v. Fensterer,

474 U.S. 15, 20 (1985). Our examination of the record shows that

Friday was fully cross-examined on all the subjects about which

defendants complain. We hold that it was within the trial court's

discretion to limit repetitive or improper cross-examination. See

United States v. Beros, 833 F.2d 455, 465 (3rd Cir. 1987)(upholding

limits on "repetitive" and "marginally relevant" cross-examination

into bias of government witness).

"Prosecutorial Misconduct"

For prosecutorial misconduct to warrant a new trial, it "must

be so pronounced and persistent that it permeates the entire

atmosphere of the trial," United States v. Stewart, 879 F.2d 1268,

1271 (5th Cir.), cert. denied, 493 U.S. 899 (1989), and "casts

serious doubt upon the correctness of the jury's verdict," United

States v. Carter, 953 F.2d 1449, 1457 (5th Cir.), cert. denied, 112

S.Ct. 2980 (1992). Defendants Murray and Felton argue that
7

prosecutors (1) improperly vouched for their own witness's

credibility by introducing Friday's plea agreement and questioning

him in detail on its terms; (2) made an improper statement in front

of jurors that revealed that the defendants were incarcerated, and

(3) asked several questions about a statement from a document that

had not been admitted into evidence.

We first note that a prosecutor may properly bring out the

terms of a plea agreement on direct examination. United States v.

Dockray, 943 F.2d 152, 156 (1st Cir. 1991). Regarding the

prosecutor's statement which revealed that the defendants were

incarcerated, we hold that the remark, even if improper, did not

cast doubt on the correctness of the verdict. The record shows that

while the jury was filing out of the courtroom for a recess,

Felton's counsel made a request to the court that Doug Friday and

another potential government witness, Steven Miller, be kept

separated from one another during the break. The prosecutor, noting

that the courthouse had only two holding cells, responded that the

only alternative was to place one of the witnesses "in with the

defendants." It is unlikely that any of the jurors heard this

statement, and in any case the evidence of guilt was sufficient

such that the jurors' knowledge that the defendants were

incarcerated does not cast serious doubt upon the correctness of

the verdict. Regarding the prosecutor's questions relating to the

letter not in evidence, the record shows that the prosecutor was

attempting to question the witness about the words "Doug Friday's

a rat," that were written on the wall of the courthouse holding
8

cell, not about the letter, although the letter also mentioned the

words on the wall. In any case, the court sustained the defense

objections, and the question was never answered. We hold that these

three minor incidents were not enough to cast doubt on the

correctness of the verdict, and a new trial is not warranted.

Mention of Polygraph Test

During cross-examination, government witness Friday stated: 

"If you are interested in my credibility --

you wanted to see my PSI report earlier -- I

will be more than happy to submit my PSI

report and a lie detector test if your codefendants will do the same." 

Defense counsel immediately requested a bench conference and moved

for a mistrial. The trial court denied the mistrial, but allowed

counsel to jointly draft a curative instruction acceptable to both

prosecution and defense, which the court read to the jury:

"The witness's last statement was nonresponsive, inappropriate and should be

stricken from the record. Polygraph

examinations are not admissible in this or any

court by any party. The witness's statement

must not be considered by you in any way

during your deliberations. Even if the parties

agreed to take such a test, the results would

not be admissible before the Court."

The judge then admonished the witness Friday, in the presence of

the jury, to "just answer the attorney's questions. Don't

volunteer." Although they concede that the government had nothing

to do with the witness's outburst, the defendants argue that this

incident so prejudiced them that they are entitled to a new trial.

We disagree, and hold that any prejudice was cured by the court's

instruction. See United States v. Martino, 648 F.2d 367, 390-91
 

6"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).

9

(5th Cir. 1981)(any prejudice caused by witness's unsolicited

reference to polygraph cured by instruction to disregard), vacated

in part on other grounds, 650 F.2d 651 (5th Cir. 1981), cert.

denied, 456 U.S. 949 (1982).

Issue 5: Wallace's Prior Conviction

Appellant Wallace argues that the trial court violated Federal

Rule of Evidence 404(b)6 by improperly admitting evidence of his

prior counterfeiting conspiracy and conviction with co-defendant

Leslie Collins. The government called three witnesses to testify

about the 1989 former counterfeiting conspiracy, and their

testimony covered 38 pages of the 1,200-page trial transcript.

Wallace claims that the evidence of his extrinsic offense was

admitted to show bad character, which is prohibited, rather than to

prove intent, plan, motive, identity or lack of knowledge, which is

permitted under Rule 404(b). Wallace claims that the unfair

prejudice to him caused by the detailed testimony of his prior

offense substantially outweighed any proper probative value. He

points out that he was willing at trial to stipulate to the prior

conviction in order to limit the prejudicial relating of the

details.

A district court's decision to admit evidence is reviewed

under an abuse of discretion standard. See, e.g., United States v.
 

7The government's closing argument emphasized expert

testimony that the bills from the 1989 conspiracy had several

identifiable flaws that did not appear in the bills from the

instant conspiracy, although the production methods were similar.

The government suggested that Wallace, who owned a print shop and

already knew how to print counterfeit money, had learned how to

print a better counterfeit bill by listening to the expert

testimony in his first trial.

10

Maggitt, 784 F.2d 590, 597 (5th Cir. 1986). We will give great

deference to the district court's informed judgment in making the

balancing decision required by Rule 404. United States v. Moye, 951

F.2d 59, 61-62 (5th Cir. 1992). In this case, the evidence of

Collins' and Wallace's 1989 conspiracy, in which they manufactured

$20 counterfeit notes at Wallace's print shop and distributed them,

was probative on the issues of intent, knowledge and plan.7 In

addition, as the trial court noted, the factual similarity and

closeness in time between the two conspiracies increased the

probative value of the evidence. See Moye, 951 F.2d at 62. We also

note that the amount of testimony about the prior conspiracy was

brief when compared to the whole trial, and the jury was properly

instructed that the testimony could only be considered on the

listed issues. We will not disturb the trial court's decision to

admit the evidence.

"Improper Comments" by Trial Court

Defendants Wallace and Felton argue that the trial court

prejudiced them with improper comments during the seven-day trial,

including (1) "bolstering the government witness's credibility";

(2) repeating an unresponsive comment by a DEA agent that the

confidential informant was "being paid to risk his life"; (3)
11

stating that the defense could call the DEA agent as a witness,

thus implying that a criminal defendant has an obligation to put on

evidence; (4) answering a question posed to a witness; and (5)

stating in front of the jury that defense motions for a mistrial

were "frivolous."

A federal district judge may comment on the evidence, question

witnesses, bring out facts not yet adduced, and maintain the pace

of the trial by interrupting or setting time limits on counsel.

United States v. Hawkins, 661 F.2d 436, 450 (5th Cir. 1981), cert.

denied sub. nom., Valdes v. United States, 459 U.S. 832 (1982).

"Improper" comments by a trial judge do not entitle the defendant

to a new trial unless the comments are error that is substantial

and prejudicial to the defendant's case. Ruiz v. Estelle, 679 F.2d

1115, 1129 (5th Cir.), cert. denied, 460 U.S. 1042 (1982). In

reviewing this issue, we must view the record as a whole rather

than viewing individual incidents in isolation. United States v.

Jacquillon, 469 F.2d 380, 387-88 & n.1 (5th Cir. 1972), cert.

denied, 410 U.S. 938 (1973).

This was a hotly contested trial, and outbursts of temper from

the attorneys and witnesses were frequent. We have examined the

entire trial transcript, putting into context the comments about

which appellants complain. We also noted similar comments from the

bench that arguably benefitted the defense. We hold that any error

committed by the court by these comments did not substantially

prejudice the defense, and in any case, was cured by the court's

instruction to the jury to disregard any such comments.
 

818 U.S.C. § 3500.

 

9"If oral testimony is sought by a demand in a case or

matter in which the United States is a party, an affidavit, or,

if that is not feasible, a statement by the party or by the

party's attorney setting forth a summary of the testimony sought

must be furnished to the Department attorney handling the

matter." 28 CFR § 15.23(c).

12

Quashing of Subpoenas

At trial, the government rested its case without having called

two of the witnesses that had been listed on its prospective

witness list, DEA Agent John Houston and U.S. Border Patrol Agent

William Rasbury. This action surprised the defendants, because

Houston and Rasbury were on a list read to the jury as "witnesses

that the government may use," and the government had already

produced Jencks Act8 material in anticipation of their possible

testimony. Houston and Rasbury were present in the hallway on the

last day of the government's case, and counsel for Wallace had

spoken to them about their anticipated testimony. After the

government rested without calling Houston or Rasbury, defendants

attempted that evening to subpoena the two agents to testify for

the defense. However, the trial court granted the government's

motion to quash the subpoenas because defendants had not complied

with the procedure set forth in 28 C.F.R. § 16.21 et. seq.,

regulating the issuance of subpoenas to Department of Justice

employees.9 The trial court stated that defense counsel should have

known that the government, for trial strategy reasons, might not

call all of its listed witnesses. If the defense wanted to be

certain that the agents would be available to testify, the court
 

10Agent Houston had interrogated Steve Miller, the brother

of government witness Doug Friday. In Agent Houston's official

report, Miller made statements about Friday's counterfeiting and

marijuana activities that defense counsel wanted to use to

13

stated, then the defense should have subpoenaed the agents in

advance and followed the applicable regulations:

"There's a lot of work that should have been

done ahead of time. This is a last-minute

effort here, and I am not going to let the

case languish here while we have some extra

motions that nobody even contemplated." 

The court also expressed concern about the growing length of the

trial, which was already in its fifth day despite the attorneys'

original estimate of a two-day trial.

The defendants contend that the trial court's quashing of the

subpoenas denied them a fair trial and the right to present

evidence on their behalf and compel witnesses to testify. We

disagree. The Department of Justice regulations for subpoenaing

witnesses have been held to be valid and mandatory. United States

v. Allen, 554 F.2d 398, 406 (10th Cir.), cert. denied, 434 U.S. 836

(1977). Because the defendants failed to make a timely demand in

accordance with the required procedure set out in 28 C.F.R. §

16.23(c), we do not reach their constitutional claims. United

States v. Marino, 658 F.2d 1120, 1125 (6th Cir. 1981).

We additionally note that the necessity or value of the two

agents' testimony was questionable. We have reviewed defense

counsel's proffer of what testimony they would have elicited from

Houston and Rasbury, and we are satisfied the issues involving the

agents were adequately brought out by other testimony.10 Therefore,
impeach Friday's testimony about the defendants. In addition,

Miller had accompanied Friday and Felton on at least one of their

trips to Roma, Texas to obtain marijuana. Miller was caught on a

bus carrying a duffel bag of marijuana and was arrested by Agent

Rasbury, a border patrol officer. Felton's counsel wanted to use

Agent Rasbury's testimony on Miller's arrest and Agent Houston's

testimony about the interview with Miller to point out minor

inconsistencies with Friday's testimony and thus imply that

Friday was lying about Felton's involvement in the drug

trafficking. Although the trial court quashed the defense

subpoenas for the two agents, defense counsel called Steve Miller

to the stand to testify about these issues and used Houston's

report to cross-examine Miller.

14

we hold in the alternative that the exclusion of the two witnesses

may be upheld under the trial court's power to control the trial

and limit testimony that would be cumulative and marginally

relevant.

"Like many other constitutional rights, the

right to call witnesses is not absolute. The

right to present relevant testimony may, in

appropriate cases, bow to accommodate other

legitimate interests in the criminal trial

process. ... The State's interest in the

orderly conduct of a criminal trial is

sufficient to justify the imposition and

enforcement of firm rules relating to the

presentation of evidence. ... The right of

compulsory process does not, therefore,

entitle a defendant to subpoena witnesses

whose testimony would be collateral, rather

than material, to the issues in the case. If

the court could properly have excluded

proffered testimony on the ground that the

evidence was collateral, its refusal to

subpoena witnesses who were to give that

testimony cannot be deemed error."

United States v. Bertoli, 854 F. Supp. 975, 1081-82 (D.N.J.

1994)(citations omitted); see also United States v. Campbell, 874

F.2d 838, 850-51 (1st Cir.1989)(no error in quashing of subpoena of

government informant where "his testimony could add nothing

relevant and material to [the] defense"). For these reasons, we
15

hold that the trial court did not err in quashing the subpoenas.
 

11The Jencks Act provides: "After a witness called by the

United States has testified on direct examination, the court

shall, on motion of the defendant, order the United States to

produce any statement ... of the witness in the possession of the

United States which relates to the subject matter as to which the

witness has testified." 18 U.S.C. § 3500.

16

Jencks Act Issues

A. Friday's PSI

During the testimony of government witness/co-conspirator

Douglas Friday, defendants requested that the government produce

Friday's presentence investigation report pursuant to the Jencks

Act.11 Defendants also argue that the PSI "version of events" was

potentially exculpatory because of its impeachment value, and thus

also should have been turned over under Brady v. Maryland, 373 U.S.

83, 86 (1963).

The Fifth Circuit has held that a PSI is not an Jencks Act

statement. United States v. Jackson, 978 F.2d 903, 909 (5th Cir.

1992). cert. denied, 113 S.Ct. 2429 (1993). Even if Friday had

"adopted" his PSI by failing to object to it, such adoption is very

different from the "adoption" required to make the report Friday's

own statement under the Jencks Act. See Jackson, 978 F.2d at 909.

With regard to the defendants' Brady request, the trial court

examined the PSI version of events and found that it did not

contain any material differences from Friday's testimony and

therefore would not be useful for impeachment, or "favorable to the

defense" under Brady. The district court thus fulfilled its duty

and afforded the defendants all the rights to which they were

entitled. See Jackson, 978 F.2d at 909. We find no reversible
17

error.

B. Notes of Agent Billiot

The government called DEA Special Agent Keith Billiot to

testify regarding his execution of a search warrant on Friday's car

and the resulting seizure of evidence, and a confession given by

Felton after he was arrested. Defendants requested that the

government produce Agent Billiot's notes and reports under Brady

and the Jencks Act. The government turned over Billiot's memoranda

concerning the search warrant and the confession, but the court

denied the motion as to the remainder of the agent's notes, relying

on United States v. Gaston, 608 F.2d 607, 611-12 (5th Cir. 1979).

In Gaston we held that interview reports prepared by agents are

Jencks Act material only to the extent that they relate to the

subject matter of the agent's direct testimony. The district court

found that Agent Billiot's notes did not relate to the limited

facts to which he testified. We find no clear error in the district

court's finding that the government was not required to produce the

notes under the Jencks Act.

Ineffective Assistance of Counsel

Defendant Felton argues that his attorney provided ineffective

assistance at trial because he failed to follow the correct

procedures to subpoena Agents Houston and Rasbury. Defendant Sutton

lists numerous reasons why his trial counsel was ineffective, also

adopting Felton's argument regarding the subpoenas. 

We conclude that this case is appropriate for application of

the general Fifth Circuit rule that such claims cannot be resolved
 

12Felton's trial counsel made a brief statement regarding

ineffective assistance during arguments over the quashed

subpoenas. Sutton approached the court on the fourth day of trial

and stated that he no longer wanted his current lawyer to

represent him and that he needed adequate representation by

"someone who's not going to take everything that I say and bring

it to the prosecutor." The court said that Sutton had made his

decision about representation before trial and that he had not

given a sufficient reason to change attorneys midstream.

18

on direct appeal unless adequately raised in the district court.

United States v. McCaskey, 9 F.3d 368, 380 (5th Cir. 1993), cert.

denied, 114 S. Ct. 1565 (1994). Although the issue of ineffective

assistance was at least mentioned at trial,12 we hold that the

record is not sufficiently developed with respect to these

ineffective assistance claims to justify an exception to the

general rule of non-review. See United States v. Bermea, F.3d

 , No. 92-7349, 1994 WL 459951 at *36-37 & n.4 (5th Cir. Aug. 25,

1994). Felton and Sutton remain free to pursue their claims of

ineffective assistance in accordance with 28 U.S.C. § 2255.

Felton's Sentence

Appellant Felton was sentenced to a total of 262 months on all

counts. The district court found Felton to be a career offender

under U.S.S.G. § 4B1.1. Felton argues that this determination was

error, because § 4B1.1 requires that the current offense be a

"controlled substance offense," and he was merely convicted of

conspiracy to possess marijuana, rather than of the substantive

offense of possession. Felton asserts that drug conspiracies are

not included in the list of "controlled substance offenses" in 28

U.S.C. § 994(h), from which the Sentencing Commission drew its

authority to punish career offenders. Therefore, he argues, the
 

13Because we vacate Felton's sentence, we do not address his

two additional sentencing issues. However, we note that both of

the findings he contests -- the drug quantity and the

obstruction-of-justice enhancement -- will not be vacated absent

clear error by the trial court.

19

Sentencing Commission exceeded its statutory authority in

Application Note 1 to U.S.S.G. § 4B1.2, when it defined "controlled

substance offense" to include a conspiracies to commit such

offenses. See, e.g., United States v. Price, 990 F.2d 1367, 1370

(D.C. Cir. 1993).

 Felton's argument has merit. A recent Fifth Circuit opinion

vacated a sentence on the same basis. United States v. Bellazerius,

24 F.3d 698, 705 (5th Cir. 1994). In light of Bellazerius, we

vacate Felton's sentence and remand his case for re-sentencing.13

Sutton's Sentence

Appellant Sutton received 60-month and 120-month sentences on

the two counterfeiting counts, to run concurrently with each other

and with a separate sentence imposed in a related case by another

federal district judge a month earlier for conspiracy,

possession/passing of counterfeit notes, and being a felon in

possession of a firearm, all in connection with his arrest on March

8, 1992. Sutton argues that the district court improperly grouped

the conviction counts in both cases together, and improperly used

Sutton's possession of a firearm in one case to enhance his

sentence in the other.

Sutton's possession of a firearm in his truck with the

counterfeit bills was properly included as relevant offense conduct

in either of the two related counterfeiting conspiracies. The
g:\opin\93-3178.opn

ACE/mek/wjl 20

indictment under which Sutton was convicted in the instant case

explicitly charges that Sutton's actions on March 8, 1992

constituted an overt act in furtherance of the conspiracy. The

firearm would thus be relevant conduct even if Sutton had not been

convicted of "felon-in-possession," or even if the convictions in

the two cases had not been grouped together. Therefore, the

grouping of the counts made no difference in the length of the

sentence Sutton now appeals, and the inclusion of the firearm as

relevant conduct was not error.

CONCLUSION

Therefore, for the reasons stated in this opinion, we AFFIRM

the convictions of all three defendants. We AFFIRM the sentences of

Wallace and Sutton, and we VACATE Felton's sentence and REMAND the

case for re-sentencing of Felton.