* Pursuant to 5th Cir. R. 47.5, the court has determ ined th at this opinio n should not be published and is no t precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. 1 United States Court of Appeals Fifth Circuit 

## FILED August 8, 2006 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________ No. 05-30378

__________________________ UNITED STATES OF AMERICA, Pl aint iff- Appellee,
versus WILL E JOHNSON; WALTER SAMUEL Defendants-Appellants.

___________________________________________________ Appeals from the United States District Court fo r the Western District of Louisiana No. 5:04-CR-50097

___________________________________________________ Before SMITH, GARZA, and CLEMENT, Circuit Judges. EDITH BROWN CLEMENT, Circuit Judge: * A jury convicted Walt er Samuel and Will E. Johnson of various dru g of fenses. Samuel challenges an evidentiary rul ing under FED . R. E VID . 404(b) and the denial of his mo tion fo r mist ri al. Johnson challenges the sufficiency of the evidence and the reasonableness of his sentence. For the reasons that follow, we affirm.1 Sm

it h testified to this account of the second transaction. One of the government agents also testified about what he wit nessed, observing Smit h and Sam uel’s house from a distance. The agent only observed Samuel exit the house and direct Sm it h int o his car to com

plete the transaction. On appeal, Johnson points out these somewhat different accounts, in an apparent attempt to discredit Smith. 2 I. FACTS AND PROCEEDINGS In March and April 2004, with the assistance of an informant, Billy Frank Smith, law enforcement agents began an invest igation of Samuel, whom Sm it h identified as a drug dealer. The agents coordinated a sting operation in which Smith made purchases of cocaine and crack cocaine from Samuel. Under the agents’ direction, Smith made two separate controlled purchases. The first transaction occurred on April 20. Sm it h called Sam

uel and asked for one half-ounce of crack cocaine. Sm

it h t hen went t o Sam

uel’s residence, where the transaction was completed. While at Samuel’s residence, Samuel info rm ed Smith that he was looking for someone new “to cook the crack” because an earlier batch was of poor quality. No one else was present during this transaction. The second transaction occurred on April 29. Sm it h drove to Sam

uel’s ho use and encountered Johnson, Samuel’s nephew, on the porch. Samuel was not at the residence, and Jo hnson called Samuel to tell him to return. When Samuel arrived, he first went into the house and then completed the transaction in Smith’s car. 1 Following these transactions, the agents set up a thir d transaction and also obtained a search warrant fo r Samuel’s pre mises. On May 6, 2004, Sm it h went to Samuel’s house to deliver the payment fo r the drugs he was to pick up lat er in the day. Johnson was also inside the house. Smith testified th at he spoke to Samuel about the “bad crack:” “[Samuel] told me that he gonna get a new cook and I will tal

k to his nephew [Johnson] about trying to find out who was cooking.” According to Sm it h, Johnson was not speaking very much. Sm it h t estified, “He say he just with his uncle, you3

know.” Sm

it h called Samuel again that afternoon about the cocaine, and Samuel told Smith that he still had to cook it
. The agents decided against completing the third transaction and instead executed the search warrant. When the agents entered the house, they encountered Johnson sitting on the floor of the kit chen. He was wearing an oven mitt on his hand. The agents located both crack cocaine and powder cocaine on the kit chen table, a pot of boiling water on the stove, and a measuring bowl inside of which was water and crack cocaine. In the southeast bedroom, the agents found four grams of powder cocaine on the dresser, $1100 in cash inside a dresser drawer, and two digit al scales on the flo or beside the bed. At tri al, Samuel’s girlfriend testified th at she had s t ayed in Samuel’s home in February and March of 2004 and th at Johnson had slept in t he southeast bedroom during th at time. The total amo unt of crack cocaine, term ed cocaine base in the indict ment , fo und in the house was approximately 120 grams. The total amo unt of powder cocaine found in the house was approximately eighteen grams. Johnson and Samuel were convicted of (1) conspiracy to distribute and to possess wit h int ent to distribute fift y grams or mo re of cocaine base in vio lat io n of 21 U.S.C. §§ 841(a)(1) and 846; (2) possession with intent to distribute fift y grams or mo re of cocaine base in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and (3) po ssession with intent to distribute a detectable amount of cocaine hydrochloride also in vio lat io n of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Additionally, Samuel was convicted of distributing (1) on or about April 20, 2004, five or mo re grams of cocaine base and (2) on or about April 29, five or mo re grams of cocaine base, both convictions in vio lat io n of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The di strict court sentenced Samuel to 240 months imprisonment. The district court determined Johnson’s guideline range to be between 151 and 1884

mo nt hs imprisonment but sentenced Johnson only to 144 months. II. DISCUSSION A. Walter Samuel At tri al, the government asked Smith when he first met Samuel. In response, Smith stated, “I met Walt er [Sam

uel] by buying drugs from his workers.” The government continued, “And how lo ng did yo u buy drugs from his workers?” Samuel’s counsel then objected, arguing that the answer constituted extrinsic evidence of prior bad acts under FED . R. E VID . 404(b) and that pretrial notice had not been provided. Aft er noting that testimo ny abo ut the prior drug-deal ing relationship had been int rodu ced without obj ection, the district court sustained the objection to the follow-up question regarding the length of the relationship. Samuel’s counsel moved for a mistrial, claiming prejudice. The district court denied the mo tion and addressed the jury, “If I sustain an objection to a question, draw no conclusion from the question itself.” On appeal, Samuel argue s th at the government’s introduction, without prior notice, of extrinsic evidence of prior bad acts in vio lat io n of FE D . R. E VID . 404(b) warranted the grant of a mist ri al. The denial of a motion for mistrial is reviewed for abuse of discretion. U nited States v. Freeman , 434 F.3d 369, 375 (5th Cir. 2005). Generally, evidentiary rulings by the district court also
are reviewed fo r abuse of discretion. U nited States v. Avants , 367 F.3d 433, 443 (5th Cir. 2004). However, Samuel’s counsel did not object to the s tatement that Sam uel contests on appeal—that Sm it h met Walt er when buying drugs from his workers; counsel objected only to the fo llo w-up question, and th at objection was sustained. As a result, review of Smith’s response to the first question is fo r plain error. Id
. Under plain error review, Samuel must show that there was clear or obvious error th at affected his substantial rights. I d . If these factors are established, this court will5

not exercise it s discretion to correct the error “unless the error seriously affect[s] the fairness, int egrity, or public reputation of the judicial proceedings.” Id . (int ernal quotation omitted). FED . R. E VID . 404(b) provides th at 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.” The rule applies to extrinsic evidence, not int rinsic evidence. U nited States v. Williams , 900 F.2d 823, 825 (5th Cir. 1990). Generally, evidence is intrinsic when both the charged act and the extraneous act are part of
a single criminal episode or are inext ricably int ertwined. Id
. In U nited States v. Miranda , this court held th at the district court did not abuse it s discretion in determ ining th at a wit ness’s testimo ny about prior drug purchases from the defendant was int ri nsic evidence where the testimony was “not
s ubmit ted to show the defendant’s procl ivit y towards crime, but
. . . as background info rmatio n establishing the conne ction between a witness and a defendant.” 248 F.3d 434, 440–41 (5th Cir. 2001) (citing United States v. Aleman , 592 F.2d 881, 884 (5th Cir. 1979)). In light of Miranda , Samuel cannot show th at the district court com mit ted plain error . Smit h’s testimony was background information that established Smith’s connection to Samuel. Though Samuel argues th at Miranda is distinguishable because Samuel ’s relationshi p with Smith ori ginated much farther in the past than the relationship at issue in Miranda , nothing in Miranda suggests th at the length of time was a factor under consideration. Samuel also argues that Miranda
was wrongly decided and should be overturned. This, of course, we cannot do. See Barber v. Johnson , 145 F.3d 234, 237 (5th Cir. 1998) (stating th at a panel of this court may not overturn the decision of another panel wit hout int ervening legislation, a decision by the en banc court, or a decision by the Supreme Court). Additionally, since the district court did not commit error, plain or otherwise, in admit ting the int rinsic evidence, Samuel cannot show th at the district court’s denial of6

the mo tion for mistrial was an abuse of discretion. B. Will E. Johnson (1) Sufficiency of the Evidence Johnson argues th at the evidence was insufficient to support his conviction. The parties dispute the applicable standard of review. At tri al, Johnson moved for a judgment of acquittal at the clo se of the government’s case, and, th ough Samuel called a wit ness, Johnson did not. Johnson did not renew his mo tion fo r a judgment of acquittal at the clo se of all the evidence . On appeal, the government argues th at, because Johnson did not renew his mo tion, this court’s review is limit ed to determ ining whether there was a “manifest miscarriage of justice.” U nited States v. Green , 293 F.3d 886, 895 (5th Cir. 2002) (int ernal quotation om it ted). Johnson recites the standard of review where the mo tion fo r the judgment of acquittal was preserved. There is so me authori ty , though it is not directly on point , th at, because Johnson did not present any evidence himself, his failure to renew the
mo tion does not constitute a waiver of the original mo tion. S ee United States v. Arias-Diaz , 497 F.2d 165, 168–69 (5th Cir. 1974) (holding th at no waiver occurs where the co-defendant, and not the defendant himself, testifies aft er the defendant moves for a judgment of acquittal at the clo se of the government’s case). Because we find the evidence was sufficient to support Johnson’s conviction under eit her standard of review, we will assume, without deciding, that Johnson need not have renewed his mo tion fo r a judgment of acquittal and that, therefore, the more generous standard of review applies. Accordingly, our review entails determ ining “whether any reasonable trier of fact could have fo und th at the evidence established the essential elements of the crime beyond a reasonable doubt.” United States v. Ortega Reyna , 148 F.3d 540, 543 (5th Cir. 1998) (citing United States v. Alix , 867

F.3d 429, 435 (5th Ci

r. 1996)). “We consider the evidence in the light most favorable to t he government, drawing ‘ all reasonable inferences and credibility choices made in support of the verdict.’” Id . (quoti ng U nited States v. Ivy , 973 F.2d 1184, 1188 (5th Cir. 1992)). Credibility choices and the weight affo rded to particular evidence are wit hin the province of the jury. G reen , 293 F.3d at 895. Ho wever, if t he evidence gives equal or nearly-equal circumstantial support to inno cence as to guilt, then reversal is required. Ortega-Reyna , 148 F.3d at 543. As previously noted, Johnson was convicted of (1) conspiracy to distribute fifty grams or
mo re of cocaine base; (2) possession wit h int ent to distribute fift y grams or mo re of cocaine base; and (3) possession wit h int ent to distribute a detectable amo unt of cocaine hydrochloride. To prove a drug conspiracy, the government must establish beyo nd a reasonable doubt: “(1) the existence of an agreement between two or mo re persons to vio lat e federal narcotics laws; (2) the defendant’s knowledge of the agreement; and (3) the defendant’s voluntary part icipation in the agreement.” United States v. Gonzales , 79 F.3d 413, 423 (5th Cir. 1996). The three elements of conspiracy may be inferred from the “development and collo cation of the ci rcumstances.” I

d
. (int ernal quotation
om it ted). To prove possession with intent to distribute, the government must establish “that the defendant (1) knowingly (2) possessed the drug (3) wit h int ent to distribute it .” I d
. Possession can be actual or constructive, and constructive possession need not be exclusive but may be jo int
. U nited States v. Patterson , 431 F.3d 832, 837 (5th Cir. 2005). Proof of possession generally rest s on inference an d circumstanti al evidence, and when the government has proved conspiracy, the defendant will be deemed to possess the drugs th rough the co-conspirator’s possession. G onzales , 79 F.3d at 423. We find the evidence sufficient to support Johnson’s convictions. Regarding the conspiracy8

conviction, Johnson was fo und in the kit chen of Samuel’s home wearing an oven mit t, while cocaine
was being cooked to fulfill Sm it h’s order. The jury could reasonably have inferred that Johnson knew of and was participating in a conspiracy wit h Samuel to distribute the drugs being prepared. Additional evidence of Johnson’s knowledge and participation in the conspiracy is Sm it h’s testimo ny th at Samuel directed Sm

it h to tal k to Johnson about who was cooking the crack and causing it s poor quality. Finally, evidence was adduced at trial that, in the southeast bedro om where Johnson was known to sleep, the agents fo und drugs, a l arge amount of cash, and two measuring scales; this evidence tends to support Johnson’s invo lvement in drug-rel ated activit ies. When considering all the evidence, a reasonable jury could have fo und proof of conspiracy to distribute cocaine base beyo nd a reasonable doubt. Regarding the two convictions for possession with intent to distribute, the parties jointly stipul ated at tri al t hat approximately 120 grams of cocaine base and eighteen grams of po wder cocaine were fo und in the house. An agent testified that a little over a hundred grams of the cocaine base were fo und in the kit chen. The jury could reasonably infer that, because Johnson was preparing the cocaine base fo und in the kit chen, th at he possessed it , eit her actually or constructively. S e e Patterson , 431 F.3d at 836 (stating that possession is constructive where defendant knowingly has ownership or control over the contraband). Because of Johnson’s involvement in the conspiracy with Samuel and the large quantity of cocaine base being produced, a reasonable jury could conclude beyo nd a reasonable doubt not only th at Johnson knowingly and jointly possessed the cocaine base but also th at he had the intent to distribute it. For similar reasons, the evidence was sufficient for Johnson’s conviction fo r possession wit h int ent to distribute powder cocaine. Powder cocaine was fo und both in the kitchen near Johnson at the time of the arrest and in Johnson’s bedroom ; the jury9

could infer th at he knowingly and constructively possessed it
. Due to the finding of conspiracy and the total amo unt of drugs involved, a j ury also could conclude beyond a reasonable doubt that Johnson possessed the powder cocaine with intent to distribute it. (2) Reasonableness of the Sentence Johnson argues th at his sentence of 144 mo nt hs is unreasonable. He concedes that the district court sentenced him belo w the advisory guideline range but avers th at the statutory minimum of 120
mo nt hs would have accomplished the purposes of the sentencing considerations set fo rth in 18 U.S.C. § 3553(a). Johnson point s out that hi s criminal hist ory is minimal and t hat he has no history of vio lence or drug use. He asks this court to vacate the sentence and remand to the district court with inst ructi ons to impose the statutory minimum o f t en years. The government does not dispute the reasonableness of the downward variance but contends that the sentence should be affirmed. Following United States v. Booker , 543 U.S. 220 (2005), we review Johnson’s sentence fo r “unreasonableness.” U

nited States v. Smith , 44 0 F.3d 704, 706 (5th Ci r. 2006). S ee also United States v. Mares , 402 F.3d 511, 519 (5th Ci r.), cert. denied , 126 S. Ct. 43 (2005). Where the sentence falls outside the applicable guideline range, the district court is required to mo re th oroughl y articulate it s re asons under 18 U.S.C. § 3553(a) in order that the reviewing court may determine whether the factors considered support the sentence. Smith , 440 F.3d at 707. However, the district court need not engage in a perfunctory recitation of all t he § 3553(a) factors. Id . A non-guideline sentence will be unreasonable where it “(1) does not account fo r a factor that should have received significant weight, (2) gives significant weight to an irrelevant or improper factor, or (3) represents a clear error of judgment in balancing the sentencing factors.” Id . at 708. This circuit has not yet applied this framework to a sit uation, like the inst ant case, where the2 During his sentencing, Samuel specifically asked for the district court’s mercy on Johnson, stating

th at he felt responsible for Johnson’s convictions. 10 defendant argues th at his sentence was unreasonable because the degree of downward variance was not substantial enough. Nonetheless, we engage in the same essential analysis. S ee United States v. Almendariz , — F.3d

— , 2006 WL 1520282, at *5 (5th Cir. 2006) (di scussing the standard of review fo r sentences th at “deviate[ ] eit her above o r below the relevant Guidelines sentence”) (emphasis added). At sentencing, the district court properl y considered Johnson’s criminal hist ory and personal characteris ti cs under § 3553(a)(1): Johnson’s criminal history is negligible, and, according to Johnson’s counsel, drug activities are not ty pically a part of Johnson’s life. Johnson himself stated th at he had a GED, two children, and came from a large family. In consideration of § 3553(a)(2)(A), the seriousness of the of

fense and the just punishment due, the district court replied th at Johnson had not thought about the families who were harmed by the drugs that Johnson produced. Also, while the district court did not expressly consider each of the other factors, it did state that it considered the “total it y o f t he circumstances.” Reviewing the record, we do not find th at the district court accorded improper weight to or erred in balancing any of the § 3553(a) factors. S ee Smith , 440 F.3d at 708. To the contrary , the court appears to have been persuaded th at Johnson’s criminal invo lvement was due in large measure to Samuel’s influence and adjusted Johnson’s sentence accordingly. 2 In light of these considerations, the district court reasonably sentenced Johnson belo w the applicable guideline range but also chose not to sentence him at the mandatory minimum due to the invariable harm his actions caused to other families. Accordingly, Johnson’s sentence of 144 months is not unreasonable.11 III. CONCLUSION The judgment of the district court as to both Samuel and Johnson is AFFIRMED.