UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 92-8516

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DAVERNE M. FOY,

Defendant-Appellant.

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Appeal from the United States District Court for the

Western District of Texas

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(August 2, 1994)

Before GARWOOD, SMITH and STEWART, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant-appellant, Daverne M. Foy (Foy), convicted of a

firearms offense and several drug offenses, appeals his convictions

and sentence, asserting numerous errors by the district court and

that the evidence is insufficient to sustain his conviction of the

conspiracy and firearms offenses. We vacate and remand.

Facts and Proceedings Below

At approximately 2:00 p. m. on August 7, 1991, Austin, Texas

police officer Randall Milstead (Milstead) met with a confidential

informant and arranged a "controlled buy" of two rocks of cocaine

(comm only known as "crack") from apartment #1039 located at 21011 Dahlstrom testified that baking soda is used to make crack

and an Exacto knife is frequently used to cut up a crack "cookie"

2 Burton Drive in Austin (hereinafter "the Apartment"). Milstead and

another officer first searched the informant, gave him two marked

twenty dollar bills and followed him to the Apartment. While under

police surveillance, the informant en tered the Apartment, stayed

five to ten minutes and returned to a prearranged location where he

gave Milstead two rocks which he stated were crack purchased at the

Apartment. Milstead then conducted a preliminary field-test

analysis on the rocks and determined that they contained cocaine.

Bas ed on the information received from the confidential

informant and the con trolled buy, Milstead later that afternoon

obtained a warrant to search for cocaine at the Apartment. That

evening between 6:30 p.m. and 7:30 p.m. Milstead and several other

officers from Austin's Special Mission Team executed the warrant.

Upon entering the Apartment, Officer Fred Tol er (Toler) saw

Joan Dickenson (Dickenson) and Rodney Thomas (Tho mas) sitting in

the living room. Toler saw Dickenson stand up, place a plastic

baggie under a couch and sit back down. Toler retrieved the baggie

and later discovered it contained .19 grams of cocaine base.

Officer Robert Dahlstrom (Dahlstrom) conducted a search of the

Apartment's kitchen where he discovered 14 plastic baggies of

marihuana weighing .57 grams underneath the sink; a measuring cup

with a 15.17 gram "cookie" of crack on the counter; and a plastic

baggie with 2.23 grams of crack hidden in an oven vent. Dahlstrom

also retrieved baking soda, plastic baggies and an Exacto knife

from the kitchen. 1into several rocks.

2 Later, the police discovered that the gun was stolen.

3 The crack weighed approximately 6.02 grams.

3 Milstead searched an upstairs bedroom in the Apartment. When

he entered the bedroom, he encountered Kimberly Rogers (Rogers) and

appellant Foy sitting on a bed. Milstead instructed the couple to

lay down on the bed and handcuffed them. Milstead then saw a rock

substance , weighing .77 grams, on the carpeted floor where Foy's

and Rogers' feet had been. Under the bed, Milstead found a shoe

box which contained an unloaded 9mm Smith & Wesson semi-automatic

pistol, 2 loose rounds of ammunition, and a loaded 9mm clip. In a

closet there, Milstead found an unloaded 12-gauge shotgun. He also

found 55 baggies of marihuana weighing 2.03 grams hidden under a

dresser in th is bedroom. In addition to the guns and drugs,

Milstead uncovered in this bedroom a sheet of paper with

handwritten names and numbers. Milstead stated that the paper

resembled a "tally sheet" or ledger often used by drug dealers to

record their transactions.

Police officer Paul Ford, (Ford) searched the second upstairs

bedroom which was used by Dickenson a nd Thomas. Ford found a

loaded revolver and a box of ammunition in a nightstand. From a

dresser drawer, Ford retrieved $300 in cash and 3 plastic baggies

containing 31 rocks of crack. 3 On the top shelf of a walk-in

closet in this bedroom, the police found a key-lock fire safe.

After the safe was broken open, the police retrieved 4 cookies of

crack which weighed about 91 grams and approximately $7,000 in4 The two twenty dollars bills earlier given to the informant

for the controlled buy were found in the fire safe.

5 The charges against Rogers were later dismissed. Thomas

pleaded guilty in state court to possessing cocaine with intent

to distribute and served seven months. The record does not

reflect the disposition of charges against Dickenson.

4 currency. 4

Dickenson, Thomas, Foy, and Rogers we re charged with state

d rug offenses and taken to the Austin Police Department. 5 After

advising Foy of his constitutional rights Milstead interviewed him.

In a signed w ritten statement, Foy admitted to selling small

baggies of marihuana. Foy stated that he obtained the 9mm semiautomatic and the shotgun through gambling and kept the guns for

protection.

A federal complaint was served against Fo y on November 25,

1992. On December 18, 1991, a three-count federal indictment was

returned which charged Foy with (1) conspiring to possess with

intent to distribute cocaine base; (2) possession of cocaine base

with inte nt to distribute; and (3) using a firearm during

commission of a drug trafficking offense. Subsequently, Foy filed

motions to suppress the evidence seized during the execution of the

search warrant and his post-arrest statements to Milstead. On

February 27, 1992, the district court denied both motions.

On March 3, 1992, a superseding indictment adding ano ther

count was filed. The new count charged possession of marihuana

with intent to distribute. In the superseding indictment, the

marihuana possession offense was listed as count three and the6 The firearm count was also modified so that the underlying

drug trafficking offense now included possession of marihuana

with intent to distribute in addition to possession of cocaine

with intent to distribute and conspiracy to do so.

5 firearm offense became count four. 6

Two weeks later a superseding information was filed charging

Foy with conspiracy to possess with intent to distribute less than

fifty kilograms of marihuana. Pursuant to a written plea agreement

with the government, Foy waived indictment and agreed to plead

guilty to the offense charged in the information and cooperate with

the government by providing information about drug traf ficking

activities in exchange for the government's dismissal of the fourcount indictment and commitment "not to pursue other

. . . offenses

against this defendant with regard to the facts that gave rise to

the Information."

At an April 20, 1992 hearing, the district court was presented

with the plea agreement (hereinafter "the Agreement"). The

district court questioned Foy extensively about whether he

understood the consequences of pleading guilty and explained that

pursuant to the Agreement the charge he was pleading guilty to

carried a maximum possible sentence of five years. Thereafter, the

go vernment presented its summary of the evidence. The district

court then allowed Foy to explain or enlarge on the evidence

presented. At that point Foy stated he did not sell any cocaine.

Foy did admit to owning a revolver SQ explaining "an old man gave me

that revolver" SQ

but stated he never loaded it. After questioning

Foy further about the voluntariness of his plea, the district court

asked Foy if he still wanted to continue in his plea of guilty.7 Foy objected to the PSR's: (1) use of all 116.03 grams of

crack found in the Apartment in its calculation of his relevant

conduct; (2) failure to adjust for his minimal role in the

cocaine trafficking offenses; (3) denial of an adjustment for

acceptance of responsibility; and (4) failure to classify his

criminal activity as "aberrant behavior."

8 The government stated that "pursuant to the objections that

have been filed just recently in the case to the presentence

investigation, [] he is in violation of the plea agreement with

the Government. He has not complied with the term that requires

him to debrief fully and honestly and completely." Foy denied

any breach. The district court did not receive any evidence

concerning Foy's alleged noncompliance.

6 Foy answered yes and pleaded guilty.

The district court then stated:

"All right. I will find Mr. Foy's plea is freely and

voluntarily made, that he understands the charge that

he's pleaded to, that h e's had competent counsel. He

understands the maximum penalties. He understand (sic)

his constitutiona l and statutory rights and he waives

them and he de sires to waive them and enter a plea of

guilty.

"I find that he's competent to st and trial and I

find that there's more than a factual basis for that

plea. So I a ccept the plea

, find him guilty of Count one in the superseding indictment." (emphasis added.)

Approximately six weeks later, on June 5, 1992, the district

court held Foy's sentencing hearing. At the hearing, Foy presented

his objections to the presentencing report (hereinafter "PSR"). 7

In response to Foy's objections, the government alleged that Foy

had not complied with the terms of the Agreement and moved to

strike the Agreement. 8

The district court then stated:

"I want the record to note that the Court has not

accepted the plea agreement at this point in time itself,

and in light of the presentence investigation, in light

of the allegations and the circumstances surrounding it,

the Court had a grave concern about accepting this plea

agreement, and if, in fact, the position of the defendant7

is as indicated by counsel and is SQ that may be a contention of the United States that the plea agreement

has been breached.

"My concern was m ore basic, and that is, that it

looked like Mr. Orr [defe nse counsel] had done a

tremendous job for this gentleman, because the

circumstances in the presentence investigation justified

one heck of a lot more sentence than the maximum, and as

to SQ so the court has reservations itself."

After a few minutes dis cussion about whether Foy had fully

debriefed or could debrief after sentencing, the court stated:

"My tendency is, at this point in time looking at the

presentence investigation and looking at the overall

circumstances of Mr. Foy and what the overall

circumstance could be, because I haven't heard any

evidence other than the investiga tion S Q when I read

through the presentence investigation I just realized

that you had done an excellent (sic) in getting the plea

agreement, and that was troublesome for the Court because

I was seriously and I'm still seriously thinking of

rejecting the plea agreement, but you did good lawyering,

and apparently the position of the Government was that

they were willing to give this very substantial break to

Mr. Foy if he would provide information.

"He's not only not provided the information, he's stated

a disassociatio n with the crime to the degree that its

absolutely absurd."

Foy's lawyer then responded:

"Your Honor, that's always been the position he's taken

with me from the very first interview I had with him.

That's what he's always SQ ."

The court then replied:

"If that's the case, then I do reject the plea agreement.

I'm setting the case for trial . . . . "

The court thereafter entered an order reciting its rejection

of "t he plea agreement" and setting the case for trial on the

superseding indictment. The order states no reasons for rejecting

the plea agreement. The jury trial was held from June 29 to July

1, 1992. The government case consisted primarily of the evidence8

obtained during the search of the Apartment and Foy's statements to

Milstead. Foy presented two witnesses in his defense. Foy's

girlfriend, Rogers, testified that she had been visiting from

Chicago for four to five days prior t o the August 7 search. She

stated that on August 7 Foy left the Apartment at about 12:00 p.m.

to play basketball and returned between 4:00 p.m. and 5:00 p.m.

that afternoon. Rogers stated that while Foy was gone Robert Lynn

Middleton (Middleton) arrived at the Apartment and went upstairs to

Dickenson's room. She stated Middleton had come into the Apartment

an hour or two before the police arrived and stayed about thirtyfive minutes. Rogers testified that Middleton, a known drug

deale r, was Dickenson's boyfriend. She testified that Middleton

came to the Apartment two to four times a day and sometimes stayed

overnight in the second bedroom with Dickenson. Rogers stated that

on one occasion she observed Middleton with something that looked

like a safe but she did not know if it was the same fire safe she

saw police retrieve from Dickenson's closet. Rogers explained that

she had not been aware before the searc h that there was a safe

located in Dickenson's bedroom. Rogers also stated that she never

saw crack or marihuana in the Apartment.

Thomas also testified for the defense. He stated that he and

Dickenson leased the Apartment. He testified that he shared an

upstairs room with Dickenson, but he slept downst airs when

Middleton, Dickenson's boyfriend, was at t he Apartment. He

testified that the safe in the second bedroom had been placed there

by Middleton approximately three weeks before the search and that9 Police Officer Ford admitted on cross-examination that the

key to the safe was never found.

10 On cross-examination, the government presented a statement

signed by Thomas which stated that Foy "sells rocks occasionally

to make money." Thomas denied making the statement, explaining

that he told police that Foy sold marihuana, not cocaine.

Thomas's statement also says "Daverne [Foy] and I pitched in

together in order to buy the 9mm pistol from one of our friends

we met on the street . . . . Daverne obtained the shotgun . . .

. We kept the guns for protection."

9 Middleton had the only key to the safe. 9 Thomas stated that he

owned the 9mm pistol found in Foy's bedroom but did not know it was

stolen. Thomas reported that Foy dealt marihuana, not crack. 10

Foy did not testify. On July 1, at 10:35 a.m. the jury

retired t o deliberate. At 2:24 p.m. it sent a note to the court

stating that it had reached a verdict on counts two, three, and

four but could not reach a verdict on count one. The court

instructed the jury to continue its deliberations and attempt to

reach a unanimous verdict under the court's instructions. Within

an hour the jury returned its verdict, finding Foy guilty on counts

one (conspiracy to po ssess cocaine with intent to distribute),

three (possession of marihuana with intent to distribute) and four

(firearm use in relation to drug trafficking offense). Under count

two (possession of cocaine with intent to distribute) the jury

found Foy guilty of the lesser include d offense of simple

possession of cocaine. On September 18, 1992, Foy was sentenced to

concurrent terms of ninety-seven months on count one, twelve months

on count two, ninety-seven months on count three, followed by a

consecutive term of sixty months on count four and five years

supervised release. Foy filed a timely notice of appeal.11 Pursuant to order of the district court, Foy's appointed

appellate counsel incorporated by reference into his brief all of

Foy's pro se appellate brief. This procedure has not been

challenged SQ though we do not normally countenance presentation

both "pro se" and by counsel SQ and, under the particular

circumstances here, we elect to consider all contentions in both

briefs.

10 Discussion

On appeal Foy asserts several arguments. He contends that the

district court erred in: (1) rejecting the Agreement; (2) denying

his suppression motions; (3) instructing the jury on the conspiracy

offense, firearms offense and reasonable doubt; and (4) failing to

make express findings on drug quantity. Foy also claims that the

evidence presente d was insufficient to convict him of either the

cocaine conspiracy or the firearms offense. Lastly, Foy alleges

that he was denied effective assistance of counsel. 11

I. Plea Agreement

Foy makes three arguments regarding the district court's

rejection of the Agreement. First, Foy asserts that the district

court violated Federal Rules of Criminal Procedure 32(c)(1) and

11(e) by retracting its unconditional acceptance of the Agreement

after it reviewed the PSR. Foy further argues that the district

court erred by failing to expressly state its reasons for rejecting

the Agreement and that, in any event, the district court's decision

to reject the Agreement was an abuse of its discretion.

A. Unconditional Acceptance

Foy asserts that the district court erred by first accepting

his plea, and then rejecting the Agreement and the plea. Foy

acknowledges that a defendant has "no absolute right to have a12 In Cruz , the defendant was indicted for cocaine trafficking.

Later, pursuant to a plea agreement, an information charging

misdemeanor narcotics possession was substituted for the

indictment. After being presented with the plea agreement, the

district court first questioned the defendant to determine

whether he understood the rights he was waiving by pleading

guilty and then unqualifiedly accepted the plea. At the

sentencing hearing two months later, the district court rejected

the plea.

11 guilty plea accepted," Santobello v. New York

, 92 S.Ct. 495, 498

(1971 ), but alleges that the district court cannot first

unconditionally accept, then later reject, a plea.

Foy cites United States v. Cruz

, 709 F.2d 111 (1st Cir. 1983),

a First Circuit decision with facts similar to the instant case, as

support for his contention. 12 In C ruz the distric t court

unconditionally accepted a bargained guilty plea, but, upon review

of the PSR, subsequently vacate d the plea. On appeal the C ruz

court reinstated the original guilty plea and remanded for

sentencing.

The Cruz court observed that under Feder al Rule of Criminal

Procedure 32(c)(1) the PSR "shall not be submitted to the court or

its contents disclosed to anyone unless the defendant has pleaded

guilty or nolo contendere or has been found guilty," except that a

judge may, with the written consent of the defendant, inspect a

presentence report at any time. The court noted that pursuant to

Federal Rule of Criminal Procedure 11(e) the district court can do

one of three things with a plea bargain S Q it may accept the

agreement, reject the agreement or defer its decision until it has

an opportunity to review the PSR. I d

. at 114. The court then

reasoned that:13 Cruz was also influenced to some degree by double jeopardy

concerns, relying in part on language in our opinion in United

States v. Sanchez , 609 F.2d 761 (5th Cir. 1980). See Cruz at

112-113. However, the Supreme Court's subsequent decision in

Ohio v. Johnson , 104 S.Ct. 2536, 2541-42 (1984) has been regarded

by the First Circuit as effectively rejecting the double jeopardy

concerns expressed in Cruz , and, inferentially, in Sanchez

. See

United States v. Soto , 825 F.2d 616, 619-20 (1st Cir. 1987);

United States v. Kurkculer , 918 F.2d 295, 301 n.9 (1st Cir. 1990)

(John R. Brown, J.). We agree in this respect with Soto and

Kurkculer . This aspect of Foy's case presents no double jeopardy

concerns.

14 Prior to the 1987 amendment, Rule 32(c)(1) provided: "The

probation service of the court shall make a presentence

investigation and report to the court before the imposition of

sentence or the granting of probation unless, with the permission

12 "Under Rules 11 and 32, the court could not use this

information in its initial decision to accept or reject

the plea unless it had defendant's consent. If a court

were entitled to use the report to vacate a plea

agreement it had previously accepted, there would be no

reason to obtain the defendant's consent to use the

report durin g its initial consideration of the plea

agreement. It could accept the agreement

unconditionally, read the presentence report in

accordance with Rule 32, and then, on the basis of the

report, sim ply change its mind and revoke its earlier

acceptance. This would completely vitiate the protective

consent requirements embodied in Rules 11(e) and

32(c)(1)." Id . at 115.

The Cruz court held that absent fraud on the court, once the

district court accepted the plea agreement it could not simply

change its mind on the basis of information revealed in the PSR.

Although Cruz supports Foy's contentions, we conclude it is no

longer authoritative due to (1) the 1987 amendment to Rule 32(c)(1)

and (2) the implementation of the United States Sentencing

Guidelines (the "Guidelines"). 13 First, a 1987 amendment to Rule

32(c )(1) deleted a provision which allowed a defendant to waive

preparation of a PSR. The rule now requires that a PSR be prepared

before imposition of a defendant's sentence. 14 Second, Guidelinesof the court, the defendant waives a presentence investigation

and report, or the court finds that there is in the record

information sufficient to enable the meaningful exercise of

sentencing discretion . . . ."

Rule 32(c)(1) currently provides: "A probation officer

shall make a presentence investigation and report to the court

before the imposition of sentence unless the court finds that

there is in the record information sufficient to enable the

meaningful exercise of sentencing authority pursuant to 18 U.S.C.

§ 3553 . . . ."

15 Section 6A1.1 provides: "A probation officer shall conduct

a presentence investigation and report to the court before the

imposition of sentence . . . ."

13 § 6B1.1(c) currently instructs th at a "court s hall defer its

decision to accept or reject" (emphasis added) any plea agreement

involving the dismissal of charges, pursuant to Rule 11(e)(1)(A),

or th e agreement for a specific sentence, pursuant to Rule

11(e)(1)(C), "until there has been an opportunity to consider the

presentence report." The commentary to section 6B1.1 explains:

"Rule 11(e)(2) gives the court discretion to accept the

plea agreement immediately or defer acceptance pending

consideration of the pres entence report. Prior to the

guidelines, an immediate decision was permissible

because, under Rule 32(c), Fed.R.Crim. P., the defendant

could waive preparation of the presentence report.

Section 6B1.1(c) reflects the changes in practice

required by § 6A1.1 [ 15 ] and amended Rule 32(c)(1). Since

a presentence report normally will be prepared, the court

must defer acceptance of the pl ea agreement until the

court has had an opportunity to consider the presentence

report." U.S.S.G. § 6B1.1(c), comment (emphasis added).

We conclude that section 6B 1.1(c) makes a district court's

acceptance of a guilty plea contingent upon the court's review of

the PSR. See United States v. Kemper , 908 F.2d 33, 35 (6th Cir.

1990) (ruling SQ

based on the Guidelines SQ t hat a district court's

acceptance of a plea agreement is necessarily contingent on the16 See also Fields v. United States , 963 F.2d 105, 107-108 (6th

Cir. 1992); United States v. Johnson , 979 F.2d 396, 398 n.2 (6th

Cir. 1992). However, the Sixth Circuit has not been entirely

consistent on this point. In United States v. Skidmore , 998 F.2d

372, 374-5 (6th Cir. 1993), the panel relied on United States v.

Holman , 728 F.2d 809, 812-13 (6th Cir.), cert. denied , 105 S.Ct.

388 (1984), which itself had relied on Cruz , without noting that

Kemper had held Holman to have been overruled by the Guidelines.

The Eleventh Circuit, without citing Kemper or the relevant

Guidelines provisions, has also cited Holman and Cruz with

approval, as well as United States v. Blackwell , 694 F.2d 1325

(D.C. Cir. 1982), another pre-Guidelines case relied on by Cruz

and Holman

. See United States v. Yesil , 991 F.2d 1527, 1532

(11th Cir. 1992). It appears to us, however, that Kemper 's

approach is more persuasive under the Guidelines.

14 court's consideration of the presentence report)

. 16 Even so, the

better practi ce would certainly be for the district court to

expressly point out at the Rule 11 hearing that although the plea

met all the requirements for acceptance under Rule 11(e)(1)(B), or

in the absence of an agre ement, and was provisionally accepted,

final acceptance was contingent on the court's review of the PSR.

However, we cannot say that the failure to so advise is reversible

error. The district court here never purported to accept the

Agreement itself and Foy never objected below to the court's

rejection of the Agreement on the ground that the plea had already

been irrevocably accepted. It is clear that if the district court

erred at all in this respect the error was not "plain" within the

meaning of F ED

. R. C RIM

. P. 52(b). See United States v. Olano , 113

S.Ct. 1770, 1777-78 (1993); United States v . Rodriguez , 15 F.3d

408, 415 (5th Cir. 1994). Accordingly, Foy is not entitled to

reversal on his Cruz based theory.

B. Reasons for Rejecting Agreement and Abuse of Discretion

Foy also argues that this court should follow the decisions of15

other circuits which have ruled that a district court must

expressly state its reasons for rejecting a plea agreement. See,

e.g.

, United States v. Moore

, 916 F.2d 1131, 1135-36 (6th Cir.

1990); United States v. Miller

, 722 F.2d 562, 566 (9th Cir, 1983);

United States v. Ammidown

, 497 F.2d 615, 623 (D.C. Cir. 1973). B ut

see United States v. Moore

, 637 F.2d 1194, 11 96 (8th Cir. 1981).

No statute nor an y of the Federal Rules of Criminal Procedure or

the Sentencin g Guidelines require a statement of reasons for

rejecting a plea agreement. Certainly the better practice would be

for the district court to expressly state its reasons. However, we

decline to adopt a ha rd and fast rule, and instead hold that a

district court's decision to reject a plea agreement is proper as

long as the record as a whole renders the basis of the decision

reasonably apparent to the reviewing court and a decision on that

basis is within the district court's discretion.

A district court's rejection of a plea agreement is reviewed

for abuse of discretion. U nited States v. Bean

, 564 F.2d 700, 704

(5th Cir. 1977). Foy asserts that the district court abused its

discretion because it rejected the Agreement based on his refusal

to admit to the relevant conduct alleged in the PSR. The

government argues, however, that the district court's rejection of

the plea was properly based on its belief that the defendant would

receive a too lenient sentence. Foy also contends that rejection

on the latter ground would not be warranted under the facts here.

A court may properly reject a plea agreement based on undue

leniency. S ee Bean at 704 ("A decision that a plea bargain w ill

result in the defendant's receiving too light a sentence . . . is17 Section 6A1.3(b) provides in part: "The court shall . . .

provide a reasonable opportunity for the submission of oral or

written objections before imposition of the sentence."

16 a sound reason for a judge's refusing to accept the agreement.");

Sentencing Gu idelines Policy Statement § 6B1.2(a) (if a plea

agreement calls for dismissal of charges or promises not to pursue

potential charges, acceptance of the agreement contemplates finding

that "the remaining charges adequately reflect the seriousness of

the actual offense behavior and that accepting the agreement will

not undermine the statutory purposes of sentencing or the

sentencing guidelines"). However, absent some special circumstance

it would ordinarily be an abuse of discretion for a court to reject

a plea agreement based on a defendant's refusal to acquiesce in the

findings of a PSR. Pursuant to Guidelines section 6A1.3 a

defendant has the right to submit objection s to the PSR. 1 7 Thus,

a dist rict court decision to reject a plea agreement based on a

defendant objecting to a PSR and refusing to admit culpability for

other offenses, would normally constitute unjustifiable coercion of

a defendant to forgo his right to object to a PSR in order to

preserve his plea bargain.

Here, although the district court did not expressly so state,

certain of its remarks at the June 5, 1992 sentencing hearing, if

considered in isolation, would ordinarily lead us to conclude that

it reject ed the Agreement because it was too lenient and did not

meet the criteria set out in section 6B1.2(a). However, these

remarks do not stand alone. The district court did not ultimately

reject the Agreement until Foy's co unsel correctly reminded the18 The district court also had expressed some concern about the

government's allegations SQ which Foy denied SQ that Foy had breached

the Agreement's cooperation provisions. However, the government

never offered any evidence of this, the district court made no

findings of breach, and we think it clear that the district court

did not base its decision on this ground.

19 We overrule Foy's contention that on the facts here

rejection under the section 6B1.2(a) criteria would constitute an

abuse of discretion.

Moreover, the district court may also properly reject the

Agreement if it should be shown that, as the government alleged,

17 court that Foy had always taken the position SQ including expressly

at the Rule 11 hearing when his plea was accepted SQ that he was not

involved with any cocaine distribution. The court's response was

" If that's the case, then I do reject the plea agreement" (emphasis

added). 18 Moreover, the court had been advised at the Rule 11

hearing, when it accepted the plea, that the Agreement contemplated

dismissal of all charges against Foy except the marihuana count.

Because of th ese remarks of the district court at the June 5

hearing, and the context in which they were made (including the

lack of other express reasons for rejecting the Agreement), we are

unable to conclude that the court did not reject the Agreement, at

least in material part, on an improper basis, namely, Foy's

repetition of the position he took at the Rule 11 hearing that he

was not involved with cocaine distribution.

We accordingly vacate Foy's sentence and rem and for

reconsideration of the Agreement, uninfluenced by Foy's continuing

to take the position he took at the Rule 11 hearing respecting the

cocaine. We do not preclude the district court's ultimate

rejection of the Agreement on the basis that it does not meet the

standards of section 6B1.2(a). 1 9 In the event the district courtFoy had breached his obligations under the Agreement. We note in

this connection that the Agreement states that "[s]hould the

defendant fail to meet his obligation under this agreement, the

United States Attorney . . . would be released from any duty to

comply with this plea agreement." Rejection on such a basis,

however, should be accompanied by an appropriate finding grounded

on adequate evidence with Foy having an opportunity to challenge

and rebut.

18 ultimately accept s the Agreement, it should vacate Foy's

convictions and sentence under the indictment, and convict and

sentence him under th e information. If the district court

ult imately rejects the Agreement, then, for the reasons stated

below, Foy's convictions under the indictment may stand, but he

shall be res entenced for such offenses consistent with this

opinion.

As the district court may ultimately reject the Agreement, we

now turn to Foy's other challenges to his convictions and

sentencing under the indictment.

II. Suppression Motions

F oy asserts that the district court erred in denying his

motions to suppress (1) evidence obtained during execution of the

search warrant and (2) his post-arrest statements to Milstead.

A. Search Warrant

This court engages in a two-step review of a district court's

denial of a motion to suppress the fruits of a search bas ed on a

warrant. United States v. Webster , 960 F.2d 1301, 1307 (5th Cir.

1992), cert. denied, 113 S.Ct. 355 (1992). Generally, the first

step is to determine whether the good faith exception to the

exclusion ary rule applies. I d

. The second step is to determine

whether probable cause s upported the warrant. U nited States v.20 Those exceptions are: "(1) If the issuing magistrate/judge

was misled by information in an affidavit that the affiant knew

was false or would have known except for reckless disregard of

the truth; (2) where the issuing magistrate/judge wholly

abandoned his or her judicial role; (3) where the warrant is

based on an affidavit so lacking in indicia of probable cause as

to render official belief in its existence entirely unreasonable;

and (4) where the warrant is so facially deficient in failing to

particularize the place to be searched or the things to be seized

that the executing officers cannot reasonably presume it to be

valid." Id. at 1307 n.4.

19 Satterwhite

, 980 F.2d 317, 320 (5th Cir. 1992). If the good faith

exception applies, this court need not r each the probable cause

issue. Webster , 960 F.2d at 1307.

The good faith exception applies unless one of four exceptions

to it is present. 20 Foy argues under the third exception that

Milstead's affidavit is a "bare bones" affidavit, i.e. so lacking

in any indica of probable cause as to render official belief in its

existence wholly unreasonable. Foy maintains that Milstead's

affidavit provided no corroboration of the informant's reliability

and credibility, and that the controlled buy was not sufficient

corroboration since crucial events were not personally observed by

Milstead.

As reflected in Mi lstead's affidavit, after he received

information from the confidential informant that cocaine was being

sold out of the Apartment, he set up a controlled buy; pursuant to

the controlled buy he searched the informant for money and drugs

before allowing him to enter the Apartment; he observed the

informant as he entered and left the Apartment; when the informant

returned he had two rock substances res embling crack, which the

informant said he had just purchased in the Apartment from a man20

named "Sparkle" in the presence of a woman named Dickenson;

Milstead verified that the su bstance the informant returned with

was cocaine and the Apartment utilities were in Dickenson's name.

Milstead's reliance on the warrant based on his affidavit clearly

meets the good faith exception. A reasonable officer could

properly conclude that these facts sufficed to establish probable

cause. The district court did not err in denying Foy's motion to

suppress evidence obtained during the search.

B. Oral Statements

Foy contends that the district court erred in denying his

motion to suppress incriminating statements made after his arrest.

The district court held a hearing on Foy's motion and concluded

that Foy made a willing and voluntary waiver of his Miranda rights.

In reviewing a district court's ruling on a motion to suppress

based on live testimony at a suppression hearing, the district

court's findings of historical fact must be accepted unless clearly

erroneous or influenced by an incorrect view of the law. United

States v. Laury

, 985 F.2d 1293, 1314 (5th Cir. 1993). The evidence

is viewed in the light most favorable to the party that prevailed

below. I d

. In determining whether a defendant has validly waived

his rights, the court looks at the totality of the circumstances

surrounding the interrogation. Id . at 1315.

The district court determined that Foy was advised of his

rights once at the time of his arrest and again at the police

station. In addition, Foy placed his initials next to each of the

rights listed on the confession form. After Milstead typed Foy's

statements, Foy signed the confes sion form. The confession form21

stated, "I do hereby knowingly, intentionally and voluntarily waive

my right to be silent and my right to have a lawyer present."

There is nothing in the record to suggest that Foy's statements

were not freely and voluntarily made. The district court did not

err in denying Foy's motion to suppress his oral statements.

III. Jury Instructions

Foy contends that the district court erred in its charge to

the jury on the conspiracy offense, firearms offense, and

reasonable doubt. As Foy did not object to any of these

instructions during the trial we review for plain error. S ee

United States v. Davis , 19 F.3d 166, 169 (5th Cir. 1994). All of

the jury instructions corresponded with the Fifth Circuit Patterned

Jury Instructions. We find no plain error.

IV. Sufficiency of the Evidence

A. Standard of Review

In reviewing sufficiency of evidence, this Court reviews all

evidence in the light most favorable to the verdict and determines

whether a reasonable jury could have found the essential elements

of the offenses beyond a reasonable doubt. United States v.

Menesses

, 962 F.2d 420, 426 (5th Cir. 1992). A verdict of not

guilty on one count does not, for purposes of our review of the

sufficiency of the evidence, establish facts favorable to the

defense in respect to any other count tried at the same time. S ee,

e.g., United States v. Powell

, 105 S.Ct. 471, 476-77 (1984); United

States v. Straach

, 987 F.2d 232, 240-41 (5th Cir. 1993); United

States v. Chaney , 964 F.2d 437, 449 & n.33 (5th Cir. 1992).

B. Conspiracy offense22

Foy alleges that the evidence is insufficient to support his

conviction for conspiracy to possess cocaine with intent to

distribute. In addition, Foy submits that since he was convicted

of conspiracy without being convicted of the underlying substantive

offense, this court should be skeptical of the verdict and engage

in a critical analysis of the facts. S ee United States v. ArzolaAmaya

, 867 F.2d 1504 (5th Cir.), cert. denied, 110 S.Ct. 322

(1989).

To establish the conspiracy offense charged in count one, the

government had to prove beyond a reasonable doubt that (1) there

was an agreement between two or more persons to possess cocaine

with intent to distribute it; (2) each alleged conspirator knew of

the conspiracy and intended to join it; and (3) each alleged

conspirator voluntarily participated in the conspiracy. U nited

States v. Rodriguez

, 993 F.2d 1170, 1175 (5th Cir . 1993). While

"'[m]ere presence at the scene and close association w ith those

involved are insufficient factors alone; they are relevant factors

for the jury.'" I d

. (citing United States v. Sanchez , 961 F.2d

1169, 1174 (5th Cir. 1988)).

At trial the government presented evidence that Foy lived in

an Apartment in which approximately 116 grams of crack were found.

Foy, who admitted to selling marihuana, was found with .77 grams of

crack and a paper resembling a tally sheet in his bedroom.

Evidence also established that a recently cooked crack cookie

weighing 15.17 grams was laying out in plain view in the kitchen.

In addition to the crack, drug trafficking paraphernalia such as an

Exacto knife and plastic baggies were also found in the kitchen.21 There were no shells for the shotgun found in the bedroom.

There was, however, ammunition for the 9mm.

23 Marihuana, a drug Foy admits to selling, was also found in the

kitchen.

Foy's residency in the Apartment coupled with the presence of

crack and a tally sheet in his bedroom offer the strongest support

of his involvement in the conspiracy to sell cocaine. Viewing the

evidence in the light most favorable to the government, we find it

was sufficient for the jury to convict Foy of the conspiracy

offense.

C. Firearms Offense

Foy asserts that evidence he possessed two unloaded firearms 21

is insufficient to support his conviction for using or carrying a

firearm during the commission of a drug trafficking offense in

violation of 18 U.S.C. § 924. Foy notes that, in 1982 Congress

amended section 924(c) to preclude application of the statute in a

situation where the presence of a weapon played n o part in the

underlying offense. U nited States v. Wilson

, 884 F.2d 174, 176-77

(5th Cir. 1989). Foy submits that under section 924 the government

must prove "something more th an strategic proximity of drugs and

firearms . . . to honor Congress' concerns." Id . at 177.

To establish the firearms offense alleged, the government had

to prove beyond a reasonable doubt that Foy (1) used or carried (2)

a firearm during or in relation to a drug trafficking crime.

Although the government must show some relationship between the

guns and the drug trafficking offense, "a showing that the gun was

used, handled or brandished in an affirmative manner is not24

required." United States v. Molinar-Apodaca , 889 F.2d 1417, 1424

(5th Cir. 1989). To demonstrate "use" of a firearm under 18 U.S.C.

§ 924, the government "is only obliged to show that the firearm was

available to provide protection to the defendant in connection with

his engagement in drug trafficking." I d

. Thus, the government may

meet its burden by showing that the weapons involved "could have

been used to protect the operation a nd that the presence of the

weapons was connected with the drug trafficking." U nited States v.

Featherson

, 949 F.2d 770, 777 (5th Cir. 1991), cert. denied, 112

S.Ct. 1698 (1992).

At trial the government presented evidence that two guns were

found in Foy's bedroom along with both crack and marihuana. One of

the guns was found in a box under Foy's bed along with ammunition.

Foy had been sitting on the bed and near hi s feet was a rock of

crack cocaine. The government also produced several photos showing

Foy posing with the guns and his written statement that he kept the

guns for "protection." Viewing the evidence in the light most

favorable to the government, we conclude that the guns, ammunition

and drugs found in Foy's bedroom could lead a rational trier of

fact to find that Foy kept the weapons available to protect his

drug trafficking operation.

V. Ineffective Assistance of Counsel Claim

In the instant direct appeal, Foy contends that he was denied

effective assistance of counsel at trial. "[T]he general rule in

this circuit is that a claim for ineffective assistance of counsel

cannot be resolved on direct appeal when the c laim has not been

raised before the district court since no opportunity existed to22 Since Foy was sentenced on September 18, 1992, the

Guidelines which were in effect from November 1, 1991, through

October 31, 1992, are applicable. United States v. Gross , 979

F.2d 1048, 1050-51 (5th Cir. 1992) (citing 18 U.S.C. §

25 develop the record on the merits of the allegations." U nited

States v. Pierce

, 959 F.2d 1297, 1301 (5th Cir.), cert. denied, 113

S.Ct. 621 (1992) (citations omitted). Since Foy's ineffective

assistance claim has not been presented to the district court, we

decline to review this ground of error, without prejudice to Foy's

raising this claim under 28 U.S.C. § 2255.

VI. Drug Quantity SQ Sentencing

Foy contends that the district court erred by failing to make

express findings regardin g the quantity of crack attributable to

him for calculation of his sentence under the Guidelines. Foy

objected to the PSR on the ground that the total amount of crack

cocaine which it attributed to h im exceeded what was reasonably

foreseeable to him; the probation officer declined to make any

change, and Foy renewed his objection at sentencing.

Pursu ant to section 2D1.1(a)(3) of the Guidelines, a

defendant 's offense level for a drug trafficking offense is

determined by the quantity of drugs involved. Under section

1B1.3(a)(1), the applicable drug quantity includes not only drugs

with which the defendant was directly involved, but also drugs that

can be attributed to him as part of his "relevant conduct."

Relevant conduct for conspira torial activity is defined as the

"conduct of others in furtherance of the execution of the jointlyundertaken criminal activity that was reasonably foreseeable by the

defendant." U.S.S.G. § 1B1.3(a)(1), comment. (n.1) (Nov. 1991). 2 23553(a)(4)). In the 1992 amendments to the Guidelines, the

above-quoted language was incorporated into the body of section

1B1.3. Section 1B1.3 now reads in relevant part: "in the case of

a jointly undertaken criminal activity [the defendant may be held

accountable for], all reasonably foreseeable acts and omissions

of others in furtherance of the jointly undertaken criminal

activity." U.S.S.G. § 1B1.3(a)(1)(B) (Nov. 1993).

23 The district court stated: "I think that there's no question

that the amount of cocaine in Miss Davenport's (sic) house, not

even counting the cooking the kitchen, is an amount that must be

taken into consideration on the sentencing guidelines."

26 "[R]easonable foreseeability does not follow automatically

from proof that [the defendant] was a member of the conspiracy."

United States v. Puma , 937 F.2d 151, 160 (5th Cir. 1991), c ert.

den ied , 112 S.Ct. 1165 (1992). "The reasonable foreseeability

required [under the Guidelines] requires a finding separate from a

finding that the defendant was a conspirator." I d

. (citing United

States v. Warters

, 885 F.2d 1266, 1273 (5th Cir. 1989)).

Therefore, "for a sentencing court to attribute to a defendant a

certain quantity of drugs, the court must make two separate

findings: (1) the quantity of drugs in the entire conspiracy, and

(2) the amount which each defendant knew or should have known was

involved in the conspiracy." U n ited States v. Puig-Infante , 19

F.3d 929, 942.

The government argues that the district court findings were

adequate because it implicitly adopted the findings of the PSR on

quantity and foreseeability when it overruled Foy's objections to

the PSR. 23 We do not agree. Although it may be reasonable to infer

that the district court accepted the PSR's findings on the quantity

involved in the entire conspiracy, such findings are st ill

insufficient since the PSR does not specifically address reasonable24 In responding to Foy's objections regarding a finding on

reasonable foreseeability, the PSR concluded Foy played a

significant role in the drug-trafficking enterprise and made no

changes in its quantity calculation. However, this conclusion of

the PSR cannot be attributed to the district court, since the

district court determined that Foy was only a minor participant

in the conspiracy.

25 We reject Foy's contention that there was no appropriate

basis on which the district court properly attributed to Foy all

the cocaine in the Apartment as reasonably foreseeable to him.

27 foreseeability. 24 S ee United States v. Webster

, 960 F.2d 1301, 1310

(5th Cir. 1992). Thus, we vacate the sentence and remand to the

district court for specific findings regarding the amount of crack

reasonably foreseeable to Foy. 25

VII. Other Sentencing Concerns

The district court erred in sen tencing Foy to ninety-seven

months for possession with intent to distribute less than fifty

kilograms of marihuana under count three. Pursuant to 21 U.S.C. §

841(b)(1)(D), the maximum term for this offense is sixty months.

As the district court's sentence exceeded the statutory maximum, we

vacate and remand count three for resentencing.

Conclusion

Accordingly, we VACATE Foy's sentence and REMAND the cause to

the district court to reconsider its reject ion of the Agreement

consistently with this opinion. If upon reconsideration the

district court determines that the plea bargain should not be

rejected, he shall vacate Foy's convictions and sentences under the

in dictment, and convict and sentence him in accordance with the

Agreement. If the district court, on such reconsideration, rejects

the Agreement based on an appropriate factor, the court should then28

resentence Foy for the indicted offenses of which he was convicted

based on a specific finding respecting reasonable foreseeability of

drug quantity for count one and within the statutory maximum for

count three.

VACATED and REMANDED