UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-40265

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMES EARL MANKINS, JR.,

Defendant-Appellant.

Appeal from the United States District Court

For the Eastern District of Texas

February 18, 1998

Before POLITZ, Chief Judge, GARWOOD and BARKSDALE, Circuit Judges.

POLITZ, Chief Judge:

James Earl Mankins, Jr. appeals h is sentence for conspiracy to possess with

intent to distribute methamphetamine in violation of 21 U.S.C. §§ 846 and 841(a)(1).

For the reasons assigned, we affirm.

BACKGROUND

While under surveillance by t he Drug Enforcem ent Administration, a confidential

source purchased metha m phetamine from Mankins on three occasions in February

1996. Laboratory analysis disclosed that Mankins delivered 26.6 grams of

amphetamine on the first occasion, 10.3 grams of D-methamphetamine on the second

occasion, and 27.9 grams of D-methamphetamine on the third occasion. In May 1996,2

th e DEA initiated surveillance of Mankins and his co-conspirator, Deborah Hicks.

After observing what appeared to be a drug transaction, drug enforcement agents, with

the assistance of the local police, intercepted and ar rested Mankins and Hicks. A

search of their vehicle and residence revealed cash, syringes, zip-lock bags, scales, and

55.5 grams of D-methamphetamine among other substances.

An indictment w as returned charging Mankins and Hicks with one count of

conspira c y to possess with intent to distribute more than ten grams of

methamphetamine and four counts of possession with intent to distribute and the

distribution of more than ten grams of methamphetamine. The government filed a

notice of its intent to seek a sentence enhancem ent based on Mankins’ previous

conviction for using a communication facility to commit or facilitate acts constituting

a felony under the federal drug laws in violation of 21 U.S.C. § 843(b). Under a

written plea agreement, Mankins pled guilty to the conspiracy charge and stipulated to

possessing 93.7 grams of methamphetamine mixture or 9.88 grams of actual

methamphetamine. The government reserved its right to establish that Mankins

possessed a total of 100 grams of methamphetamine mixture or 10 grams of actual

methamphetamine for sentencing, as well as to seek the enhancement earlier noted.

After the Presentence Investigation Report was completed, Mankins objected to

the quantity of methamphetamine involved, th e suggested enhancement for a prior

felony conviction, and an enhancement for being an organizer of the criminal activity.

At sentencing the government presented exhibits and Hicks’ testimony to establish that

in addi tion to the stipulated 93.7 grams, Mankins obtained additional quantities of1 Under the Guidelines, Mankins had a total offense level of 25 and a criminal

history category of II, resulting in a guidelines range of 63 to 78 months. With a prior

conviction for a felony drug offense under § 841(b)(1)(B)(viii), the statutory mandatory

minimum term of imprisonment is ten years and the maximum term is life.

2 United States v. Mitchell , 31 F.3d 271 (5th Cir. 1994).

3 methamphet amine from a supplier in Sulphur Springs on at least three occasions.

Based on this evidence, the district court found that Mankins possessed a total of 100

grams of methamphetamine mixture, invoking the sentencing provisions set forth in 21

U.S.C. § 841(b)(1)(B)(viii). The district court also found that Mankins was an

organizer under U.S.S.G. § 3B1.1 and that his prior conviction constituted a felony

drug of fense, warranting a sentence enhancement. Accordingly, the district court

sentenced Mankins under § 841(b)(1)(B)(viii) to 120 months in prison and eight years

supervised release. 1 No fine was imposed. Mankins timely appealed, contending that

the district court erred in: (1) finding that he possessed 100 grams of methamphetamine

mixture; (2) determining that his prior conviction for “telephone facilitation” is a felony

drug offense for enhancement purposes; and (3) finding that he was an organizer under

U.S.S.G. § 3B1.1(c).

ANALYSIS

Title 21, United States Code section 841(b)(1)(B)(viii) establishes sta tutory

sentencing provisions if a defend ant possesses 100 grams or more of a mixture

cont aining methamphetamine. Mankins contends that the evidence is insufficient to

show that he possessed 100 grams o f methamphetamine mixture. This contention

overlooks the rubric that a defendant participating in a drug conspiracy is accountable

for the foreseeable quantity of drugs attributable to the conspiracy. 2 This quantitative3 United States v. Dickey , 102 F.3d 157 (5th Cir. 1996).

4 computation at sentencing is a factual finding, to be established by a preponderance of

the evidence,which will be upheld on appeal unless clearly erroneous. 3

Mankins stipulated that he possessed 93.7 grams of methamphetamine mixture

based on the 38.2 grams of D-methamphetamine delivered to the confidential source

in February 1996 and the 55.5 grams of D-methamphetamine found aft e r his arrest.

The district court relied primarily on Hicks’ testimony at the sentencing hearing to find

that Mankins possessed a minimum of 6.3 additional grams for a total of 100 grams of

methamphetamine mixture. Mankins contends, however, that the quantity of drugs

about which

Hicks testified is included in the stipulated 93.7 grams, and that her

testimony is based on subjective beliefs and is unreliable.

Hicks testified that Mankins traveled with her on three or four occasions to

Sulphur Springs where, on each trip, she purchased approximately one or two ounces

(28 to 56 grams) of good quality methamphetamine. Hicks stated that she would give

Mankins an eighth of an ounce each trip for accompanying her. She also testified that

she believed Mankins was selling the methamphetamine he obtained from her as well

as from others , because he was selling more than she gave him. Giving due

consideration to this evidence, we cannot say that the distric t court’s finding of drug

quantity is clearly er

r oneous. The statutory sentencing provisions of §

841(b)(1)(B)(viii) were applicable herein.

Under § 841(b)(1)(B)(viii), the mandatory term of imprisonment increases if the4 The sentencing range increases from a minimum of 5 years and a maximum of 40

years to a minimum of 10 years and a maximum of life imprisonment.

5 Mankins does not dispute that his prior conviction under § 843(b) is final or that

it is a felony for purposes of the enhancement.

6 United States v. Sandle , 123 F.3d 809 (5th Cir. 1997).

7 21 U.S.C. § 802(44). This statutory definition has remained essentially consistent

since its inception in 1984. See Sandle , 123 F.3d at 811 fn.2.

8 United States v. Domino

, 62 F.3 d 716 (5th Cir. 1995); U nited States v.

Martinez , 950 F.2d 222 (5th Cir. 1991).

5 defendant has a prior conviction for a felony drug offense. 4 Mankins maintains that the

district court erred in determining that the enhancement applies because his prior

conviction for violating 21 U.S.C. § 843(b) does not constitute a felony drug offense. 5

This presents an issue of first impression for us. As a question of law, we review the

district court’s determination de novo

. 6

A felony drug offense is “an offense that is punishable by imprisonment for more

than one year under any law of the United States or of a State or foreign country that

prohibits or restricts conduct relating to narcotic drugs, marihuana, or depre ssant or

stimulant substances.” 7 Section 843(b) provides:

It shall be unlawful for any person knowingly or intentionally to use any

comm unication facility in committing or in causing or facilitating the

commission of any act or acts constituting a felony under any provision

of this [control and e nforcement] subchapter or [the import and export]

subchapter ... of this [drug abuse and prevention] chapter.

Mankins contends that his conviction for v iolating § 843(b) is not a “drug offense”

because guilt of the underlying act is not an element of proof for facilitation under §

843(b), and he did not plead to such. 8 Mankins misconstrues, however, the required9 Id.

10 United States v. Rey , 641 F.2d 222 (5th Cir. 1981).

11 See United States v. Vea-Gonzales , 999 F.2d 1326 (9th Cir. 1993).

12 21 U.S.C. § 802(44).

13 See 21 U.S.C. § 841(b)(1)(B)(viii).

6 proof of the underlying offense and, thus, the nature of a § 843(b) violation.

A conviction under § 843(b) requires proof that a defendant (1) knowingly or

intentionally (2) used a communications facility (3) to facilitate the commission of a

drug offense

. 9 This third element requires proof of the underlying drug offense that the

d efendant is accused of facilitating, even though it is not separately cha rged. 10 The

statute therefore requires that in the course of using a communications facility the

defendant must either commit an independent drug crime, or cause or facilitate such a

crime. 11 As an element of the offense, the statute can clearly be viewed as prohibiting

these drug related acts. Section 843(b) thus falls within the definition of a “felony drug

offens e” in that it “prohibits or restricts conduct relating to [unlawful controlled

substances].” 12 Accordingly, we find and conclude that the district court did not err by

construing Mankins’ prior conviction for violating § 843(b) as a felony drug offense in

order to enhance his sentence. 13

Having concluded that the district court correctly sentenced Mankins under the

enhanced statutory imprisonment range, we need not consider Mankins’ challenge to

the U.S.S.G. § 3B1.1(c) enhancement. Even with this enhancement the resulting

guidelines range is below the statutory mandatory minimum term of imprisonment,7

making this issue moot.

The judgment appealed is AFFIRMED.