UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 00-30208

__________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JALTHEUS COOPER, also known as Tweet Cooper,

Defendant-Appellant,

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No. 00-30209

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EDWARD FAULK, also known as Lite Bread Faulk,

Defendant-Appellant,

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No. 00-30210

__________________2

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ERNEST GREEN, also known as Serv-it Green,

Defendant-Appellant,

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No. 00-30450

__________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMES ALEXANDER, also known as Coco Alexander,

Defendant-Appellant.

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Appeals from the United States District Court for the

Eastern District of Louisiana

______________________________________________

November 26, 2001

Before KING, Chief Judge, and DUHÉ and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

This direct criminal appeal involves four appellants who pleaded guilty to distribution of an

unspecified quantity

o f hero in and conspiracy to possess with intent to distribute an unspecified3

quantity of heroin in violation of 21 U.S.C. §§ 841(a)(1) & 846. One appellant, Edward Faulk, also

pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and

924(a)(2). The appellants raise various sentencing errors. We conclude that the district court

erroneously enhanced E dward Faulk’s sentence for possession of a firearm under U.S.S.G. §

2D1.1(b)(1) and committed plain error as to Faulk’s term of supervised release. Thus, we VACATE

and REMAND Faulk’s sentence. We AFFIRM the sentences of Jaltheus Cooper, Ernest Green, and

James Alexander.

I. BACKGROUND

This consolidated appeal arises from heroin trafficking that occurred in the St. Thomas

housing project in New Orleans. Appellants Jaltheus Co o per, Edward Faulk, Ernest Green, and

James Alexander, along with codefendant Jacqueline Thompson (not party to this appeal), were

charged in a five-count indictment with distribution of unspecified quantities of heroin in violation of

21 U.S.C. § 841(a)(1) and with conspiracy to possess with intent to distribute an unspecified quantity

o f hero in in violation of 21 U.S.C. §§ 841 (a)(1) and 846. In addition, Faulk was charged wit h

possession of a firearm by a felon.

Cooper, Faulk, and Green, as well as Thompson, pleaded guilty and agreed to cooperate with

t he government in the case against Alexander. After his codefendants agreed to plead guil ty,

Alexander changed his plea to guil t y o n t he day of his scheduled trial. Cooper, Faulk, and Green

agreed to a factual basis which contained the following information. Thompson distributed 2.5 grams

of heroin to an undercover agent and a cooperating witness. Green similarly distributed 4.2 grams.

Faulk and Cooper distributed 6.9 grams to an undercover agent and a cooperating witness. Faulk

possessed a firearm while previously having been convicted of a felony. T he firearm was seized from4

a vehicle occupied by Faulk, and Faulk personally placed it inside a m otor vehicle. Cooper, Faulk,

and Green also agreed that they conspired with each other and Thompson "to possess with the intent

to distribute not more than one (1) kilogram of heroin." A lexander agreed in a separate factual basis

that he distributed 4.2 grams o f heroin t o an undercover cooperating witness. Alexander further

agreed to the conspiracy to distribute "a quantity of heroin;" but he disputed the assertion that the

amount of heroin involved was at least one kilogram.

The government submitted a notice with an accompanying affidavit from the case agent to

est ablish that the quantity of heroin attributable to each of the co-conspirators was at least one

kilogram over the course of the conspiracy. The prese nt ence reports (PSR’s) for each defendant

calculated the base offense level as 32 based on one kilogram of heroin attributable to the defendants.

One ki lo gram is the minimum amount necessary for a base offense level of 32 under U.S.S.G.

§ 2D1.1(c)(4).

Prio r to the sentencing hearing for Cooper, Faulk, and Green on February 16, 2000, all

defendants joined in objecting to the PSR's attributing one kilogram of heroin to them. T he district

court conducted an evidentiary hearing for the purpose of determining the drug quantity. ATF Agent

Michael Eberhardt testified at the hearing, further elaborating on his affidavit.

Eberhardt testified that the investigation of this matter was conducted by agents and officers

of the Bureau of Alcohol, Tobacco, and Firearms, and the New Orleans Police Department over the

course of 18 to 24 months beginning in March 1997, and that the quantity of heroin involved in the

conspirac y was "more than 850 grams." He further testified that his investigation began when a

reliable confidential informant identified Cooper, Faulk, Green, Alexander, and Thompson as

individuals distributing heroin in the St. Thomas housing project. E berhardt determine d the total5

amount of heroin involved in the conspiracy by adding various quantities disc overed from source

information to estimated quantities from personal observation of heroin transactions.

Eberhardt first learned that in November 1996 the Jefferson Parish Sheriff's Office seized from

the mail a package sent from New York addressed to Claude Robinson in Marrero, Louisiana. The

package contained approximately 59 "bundles" of heroin. R obinson told Eberhardt that the package

had been arranged for and belonged to Faulk and Cooper. H e further said that he had received a total

of nine similar packages of heroin. Eberhardt used a conservative estimate of 0.5 grams of heroin

contained in each bundle. The total amount of heroin received by Robinson on behalf of Faulk and

Cooper was estimated to be 265.5 grams. Eberhardt testified that the seized heroin was unique in

the way it was packaged in wax papers with the number "911" or the word "Amazing" stamped in

red on the wax paper.

During the course of the invest igat ion Eberhardt also interviewed a person named Darryl

Fisher, who identified himself as a "runner" for Green, meaning that he made hand-to-hand sales of

heroin for Green. According to Fisher, he distributed approximately one bundle of heroin per day

for ten months, or a total of 140 grams of heroin. F isher also rela ted to Eberhardt that Cooper,

Faulk, Green, and Alexander were distributing heroin in St. Thomas.

Codefendant Thompson tol d Eberhardt that she sold heroin for Cooper and Faulk for

approximately ten months. She also had knowledge that Green and Alexander w e re selling for

Cooper and Faulk. T hompson sold approximately two bundles per day for ten months, or a total of

approximately 300 grams of heroin.

Another source of information was a New York heroin supplier named Victor Castro. C astro

told Eberhardt that on two separate occasions Cooper and Faulk had met with him in New York and6

purchased a total of $20,000 worth of heroin. U sing the street value of the heroin in New Orleans,

which is conservative compared to heroin in New York, Eberhardt estimated that Cooper and Faulk

had purchased 40 grams of heroin from Castro.

Eberhardt further discovered that the U.S. Postal Service had seized a package originating

from a "target return address" in New York containing 65 bundles of heroin. T his package was sent

to Lionel Greer, who Eberhardt knew to be involved with the conspiracy. During an interview with

Eberhardt, Greer admitted that the heroin was for people in the St. Thomas project, but he did not

give any names. The heroin was packaged in wax paper with "911" or "Amazing" stamped on it,

which Eberhardt testified was unique to the Cooper and Faulk group. T he total amount of heroin was

approximately 32.5 grams.

The last specific source of information was Warren Woody, who Eberhardt had determined

was Cooper and Faulk's main supplier in New York. Woody was arrested by New York police in

late 1997 while in possession of 200 bundles of heroin, each packaged in wax paper and stamped with

"911" or "Amazing." W oody also possessed a bus ticket to New Orleans at the time of his arrest, and

Woody's girlfriend told police that he had planned to meet friends in New Orleans. The amount of

heroin attributed to the Cooper and Faulk organization from Woody was estimated to be 100 grams.

The total amount of heroin derived from Robinson, Fisher, Castro, Cooper, and Woody was 878

grams.

Eberhardt also testified that beginning in March 1997, he spent approximat ely 700 hours

doing surveillance at the St. Thomas housing project and participating in traffic stops. He personally

witnessed numerous heroin transactions invo lving Green. H e also stated that during the traffic stops

people would be found with small amounts of heroin, such as two or three bundles, that they had just7

purchased. Based on the 878 grams of heroin identified from other sources and the quantities from

his own personal observation during surveillance and traffic stops, Eberhardt testified that one

kilogram was a conservative estimate of the amount of h ero in involved in the conspiracy from

November 1996 through May 1999.

Based on Eberhardt's affidavit and testimony and the factual basis stating that "not more than

one (1) kilogram" of heroin was involved, the district court overruled the defendants' objections to

the amount of heroi n. The district court found that the evidence showed enough activity in the

conspiracy that the defendants could have reasonably foreseen the amount of drugs distributed to be

at least one kilogram.

The government filed a motion for downward departure with respect to Cooper, Faulk, and

Green based on their substantial assistance, recommending a downward departure of ten percent of

their respective sentences. T he district court granted the motion. T he court sentenced: (1) Cooper

to 151 months and 5 years supervised release; (2) Faulk to 211 months and 5 years super vised

release; (3) Green to 136 months and 5 years supervised release; and (4) Alexander to 140 months

and 4 years supervised release.

Cooper, Faulk, and Green each filed a t imely notice o f appeal. A lexander filed a notice of

appeal that w as lat er deemed untimely. Ultimately, on remand, the district court found excusable

neglect, and thus we now have jurisdiction over his appeal.

Meanwhile, after Faulk had been sentenced, the U.S. Probation Office issued a revised PSR,

deleting two criminal history points that had been erroneously attributed to Faulk, which resulted in

a lower guideline range. Faulk then filed a motion to enforce the downward depart ure

recommendation that the government had made with respect to his first sentencing so that he would8

again receive a ten percent downward departure from the revised guideline range for his substantial

assistance. T he government objected, and the district court imposed the original sentence of 211

mo nt hs at resentencing. F aulk t imely filed a supplemental notice of appeal to include the district

court's denial of his motion to enforce departure.

II. ANALYSIS

A. Amount of Heroin Attributable to the Appellants

All four appellants argue that the district court erred in finding that one kilogram of heroin

was involved in the conspiracy. Under the sentencing guidelines, t he base o ffense level for a

defendant convicted of a drug offense is determined based on the amount of drugs involved. S ee

U.S.S.G. § 2D1.1(a)(3). The quantity includes the drugs for which the defendant is directly

responsible and the drugs that can be attribu t ed to him in a conspiracy as relevant conduct. S ee §

1B1.3(a)(1). A district court's factual determination of a defendant's relevant conduct for sentencing

purposes is reviewed for clear error. See United States v. Schorovsky

, 202 F.3d 727, 729 (5th Cir.

2000); United States v. Puig-Infante , 19 F.3d 929, 942 (5th Cir. 1994). A factual finding is clearly

erroneous "'when although there is evidence to support it, the reviewing court on the entire evidence

is left with the definite and firm conviction that a mistake has been committed.'" U nited States v. Hill

,

42 F.3d 914, 918 (5th Cir. 1995)(citation omitted). A factual finding is not clearly erroneous if it is

plausible in light of the record read as a whole. Puig-Infante , 19 F.3d at 943.

1. Cooper

Cooper's only argument on appeal is that the district court was clearly erroneous in its finding

t hat one kilogram of heroin was involved in the conspiracy. Cooper concedes that Eberhardt' s

testimony was well-founded as to 745.5 grams of heroin. He asserts that the testimony was dubious9

and/or speculative as to the remaining amounts up to one kilogram. C ooper contests the 32.5 grams

that were seized from the package addressed to Lionel Greer, arguing that although Greer said the

heroin was intended for the St. Thomas housing project, he could not provide any names. Cooper

further argues that the 100 grams seized from Warren Woody in New York was unreasonably linked

to the conspiracy based only on the fact that Woody possessed a bus ticket to New Orleans when he

was arrested. He further challenges the remaining 192 grams of heroin on the basis that Eberhardt's

testimony was unverifiable conjecture. F inally, Cooper argues that nothing in the record supports

Eberhardt's testimony concerning the packaging of the heroin that shows such packaging was unique

to this conspiracy.

Ordinarily, a PSR bears sufficient indicia of reliability to be considered as evidence by the

sentencing judge when making factual determinations. S ee United States v. Narviz-Guerra, 148 F.3d

530, 537 (5th Cir. 1998). The district court may adopt the facts contained in the PSR without further

inquiry if the facts have an adequate evidentiary basis and the defendant does not present rebuttal

evidence. S ee Unit ed States v. Alford, 142 F.3d 825, 832 (5th Cir. 1998). Although he crossexamined Eberhardt, Cooper presented no rebuttal evidence to the PSR's calculation based on one

kilogram of heroin. In addition to the PSR, however, the district court had the benefit of an affidavit

and live testimony from Eberhardt concerning the investigation into the Faulk and Cooper

organization.

The evidence was sufficient to link the 32.5 grams of heroin addressed to Lionel Greer to this

conspiracy. First, Greer admitted to Eberhardt t hat t he heroin was meant to be distributed in St.

Thomas. Despite Cooper's assertion t hat Greer "could not provide any names," Eberhardt's

testimony was that Greer "did not" specifically name anyone. Eberhardt testified, however, that the10

package was sent from a New York address that had been targeted as part of the investigation into

the present conspiracy. He also testified that he knew Greer "to be involved in the conspiracy to an

extent." Finally, the heroin was pa ckaged in wax paper with the telltale "911" and "Amazing"

stamped on it, which Eberhardt testified was unique to this conspiracy. Eberhardt testified that heroin

sold in other parts of the cit y was packaged in foil, rather than wax paper, and that the packaging

helps identify the group to which it belongs.

As for the 100 grams of heroin seized from Woody, Eberhardt testified that he had identified

Woody as Cooper and Faulk's main New York supplier. Woody was on his way to New Orleans

"to meet friends" when he was arrested wit h the heroin, as evidenced by his possession of the bus

ticket. The heroin also was in the same unique wax paper packaging as the heroin sold by Cooper

and Faulk.

It is true, as intimated by Cooper, that heroin packaged in wax paper conceivably could have

been destined for others in New Orleans. C ooper's argument would be stronger if the packaging was

the only link between the heroin and this conspiracy. However, when the heroin also originates from

people who are identified as Cooper and Faulk's main supplier (Woody) and as being involved in the

conspiracy (Greer ), it is not implausible that the heroin was meant for Cooper and Faulk. P uigInfante , 19 F.3d at 942. There is no clear error in the district court's finding.

As for the remaining amounts of heroin, Eberhardt testified that he spent numerous hours of

surveillance observing the members of the conspiracy engaged in heroin transactions. He received

daily reports from confidential informa nt s co ncerning the drug activity of the defendants. He

arranged for a confidential informant to make purchases directly from each of the defendants, which

totaled approximately 13.6 grams. He further participated in numerous traffic stops of individuals11

who had just purchased between two and three bundles of heroin from the defendants. Eberhardt

testified that the traffic stops would "easily" bring the total amount of heroin "to near 1,000 [grams],

if not over." Finally, Eberhardt testified that his calculation of the amounts seized from the various

sources used a "very, very conservative estimate" of .5 grams per bundle and that one kilogram was

"a conservative estimate" of the total amount for the conspiracy from November 1996 to May 1999.

A district court may consider "'estimates of the quantity of drugs for sentencing purposes.'"

Alford

, 142 F.3d at 832 (quoting United States v. Sherrod , 964 F.2d 1501, 1508 (5th Cir. 1992)).

Eberhardt made clear that his numbers were estimates and that they were on the conservative side.

The district judge stated that she "believe[d] the agent's estimate." See also Puig-Infante , 19 F.3d

at 943 (upholding drug quantity finding where district court explicitly stated that it relied not only on

the PSR but also the testimony from the witness stand). As such, Cooper has not shown clear error

in the district court's finding that one kilogram of heroin was attributable to the conspiracy.

2. Faulk

Faulk asserts that th e dist rict court erroneously used one kilogram as the amount of drugs

involved rather tha n t he 13.6 grams of heroin admitted in the factual basis. F aulk argues that

Eberhardt's testimony that Faulk and Cooper were the main suppliers was based on uncorroborated

hearsay by informants. He contends that Eberhardt's testimony concerning the quantity of heroin is

therefore speculative.

A district court has wide discretion in determining which evidence to consider and to credit

for sentencing purposes. S ee United States v. Davis, 76 F.3d 82, 84 (5th Cir. 1996). The defendant

bears the burden of showing that the information relied upon by the district court is materially untrue.

Id. As outlined above with respect to Cooper, the district court did not err in determining the amount1 The factual basis signed by Alexander provided that the amount of heroin was in dispute.

The factual basis with respect to the other appellants provided that “not more than one (1) kilogram

of heroin” was involved in the drug offenses.

12 heroin to be one kilogram.

3. Green

Green also argues that the district court erred in determining that one kilogram of heroin was

attributable to the defendants. Green asserts that Eberhardt failed to testify directly that the amount

of heroin was one kilogram and merely agreed with a leading question from the prosecutor. Green's

argument is unavailing. As noted in detail above with respect to Cooper, Eberhardt's testimony was

extensive c o ncerning t he amounts of heroin involved. The district court also had the benefit of

Eberhardt's affidavit, which likewise stated that the amount involved was "at least one kilogram."

4. Alexander

Alexander argues that the district court erred in attributing one kilog ram o f heroin to him

because: (1) the evidence was insufficient to prove the amou nt was one kilogram, as the PSR's

calculation was founded on a factual basis agreed to by the other defendants who were more culpable

and more involved in the conspiracy; 1 (2) his role in the conspiracy was limit ed in that he was

incarcerated on unrelated charges prior to October 30, 1996 and reincarcerated in1998, and t hus

co uld not be held responsible for amounts of heroin involved while he was in prison; (3) the

government's evidence showed he was involved in only one transaction invo lving 4.2 grams of heroin;

and (4) he presented evidence showing that he had withdrawn from the conspiracy. In the district

court, Alexander challenged the amount of drugs involved in the conspiracy and presented evidence

at an evidentiary hearing in an attempt to rebut the PS R’s findings with respect to the amount of

drugs attributable specifically to him.2 The relevant portion of the panel opinion “remain[ed] unaffected.” U nited States v. Brown,

161 F.3d 256, 257 n.1 (5th Cir. 1998) (en banc).

3 In its statement of reasons for imposing sentence, the district court indicated that Alexander

was reincarcerated in May of 1998. The PSR indicates that Alexander was arrested on October 21,

1998 on a state charge of possession of heroin.

13 It is well established t hat relevant conduct under the sentencing guidelines includes all

reasonably foreseeable acts of coconspirators in furtherance of the conspiracy. S ee § 1B1.3(a)(1)(B).

Nonetheless, “the r easo nable foreseeability of all drug sales does not automatically follow from

membership in the conspiracy.” U nited States v. Wilson, 116 F.3d 1066, 1077 (5th Cir. 1997),

vac ated in part sub. nom. United States v. Brow n , 123 F.3d 213 (5th Cir.1997) (en banc). 2 To

determine a defendant’s sentence for participation in a drug conspiracy, the district court must make

the following findings: (1) when the defendant joined the conspiracy; (2) the quantities of drugs that

were within the scope of the agreement; and (3) the quantities the defendant could reasonably foresee

being distributed by the conspiracy. Id. at 1076.

The conspiracy count (to which Alexander pleaded guilty) alleged that the conspiracy began

“at a time unknown, but prior to in or about November 1996, and continuing through the filing of this

indictment,” which occurred on May 21, 1999. It is undisputed that Alexander was released from

prison in October of 1996. He was reincarcerated sometime in 1998. 3 At the evidentiary hearing,

Eberhardt testified that the first time he was able to corroborate Alexander’s involvement in the

conspiracy through his confidential informant was on April 24, 1997. On cross examination, Agent

Eberhardt admitted that he could “only prove that [Alexander] distributed heroin on one occasion.”

Eberhardt was referring to the 4.2 grams o f heroin he witnessed Alexander sell on May 7, 1997.

That conduct formed the basis of the distribution count in the indictment to which Alexander pleaded14

guilty. Eberhardt further testified that, as compared to codefendant Ernest Green, Alexander was not

a “regular” selling drugs on the corner.

Additionally, in an affidavit, Eberhardt provided that during his investigation he interviewed

codefendant Thompson, who stated that she had personal knowledge of Alexander selling heroin for

Faulk and Cooper. Eberhardt’s affidavit further provided that he interviewed Daryl Fisher, a heroin

dealer who worked for Green, and Fisher stated that he had personal knowledge that Faulk, Cooper,

Green, and Alexander were all involved in the distribution of heroin.

In rebuttal, Alexander called as a witness Richard Krumm, who had been the general manager

of a New Orleans rest aurant called Metro Bistro. Krumm testified that Alexander worked as a

dishwasher at the Metro Bistro “at least 30 to 40 hours a week” from October of 1997 until May of

1998. Business records were also introduced that corroborated this testimony. In contrast, the

evidence at the hearing and in the PSR indicates that the other defendants were not g ainfully

employed.

Alexander also called as a witness Reverend Torin Sanders, who was a pastor at the Si xth

Baptist Church in New Orleans. Reverend Sanders testified that Alexander became an active member

in late 1996 after being released from pri so n. Alexander was involved in the drug ministry and

attended meetings on Mon day night s and also attended Reverend Sanders’ monthly service at the

parish prison. Alexander stopped attending in March or April of 1997 and became active again in the

ministry in the summer of 1998.

After hea ring t his evidence, the district court issued a statement of reasons for imposing

sentence, which provided in part as follows:

Defendant objects to the finding that the readily provable amount attributabl e to the15

conspiracy for sentencing purposes is one kilogram. Defendant has objected to the quantity

of her o in attributed to him. Defendant asserts that the amount of one kilogram was a

negotiated weight for sentencing purposes for other defendants who played greater roles in

the conspiracy and were members of the conspiracy for longer periods of time. Defendant

states that his role was limit ed in time and activity, as shown by the fact that he was

incarcerated until October 26, 1996, and further, that the government’s evidence reveals that

he was observed during only a single transaction on May 7, 1997.

Pursuant to the evidence adduced at the defendant’s evidentiary hearing and the affidavit of

Special Agent Eberhardt, the Court finds that defendant Alexander could foresee the sale of

at least one kilogram of heroin by th e co nspiracy. The Court finds sufficient evidence in

support of Alexander’s participation in the drug conspiracy, to which Alexander plead guilty,

for the period between his release from custody in October 1996, and his reincarceration in

May, 1998, such that Alexander could reasonably foresee the sale of at least one kilogram of

heroin in connection with the joint criminal activities of the Faulk conspiracy. In addition, the

Court finds that defendant’s involvement in drug ministry and/or full-t ime employment does

not preclude his involvement in the Faulk drug conspiracy.

In short, the district court expressl y co nsidered Alexander’s arguments and evidence but

nevertheless concluded that he participated in the conspiracy from October of 1996 through May of

1998 and based on that participation, could have reasonably foreseen the sale of at least one kilogram.

Our review of the evidence indicates that Alexander certainly was not as involved in the

conspiracy as Faulk, Cooper, or even Green. The evidence indicates that Faulk and Cooper received

a greater share of the profits and were in charge of the organiza t io n. Also , Alexander’s evidence

regarding his employment and drug ministry participation tends to limit his role in the conspiracy and

the scope of his agreement. The district court, however, considered that evidence and expressly

found that Alexander’s involvement in the drug ministry and his full time employment did not

preclude his involvement in the conspiracy.

Additionally, we are mindful that a district court should consider whether a defendant’s4 Alexander raised this issue in his initial brief. This Court allowed Faulk t o file a

supplemental brief in which he raised this issue. In a letter to this Court filed on December 26, 2000,

Green adopted the arguments of his codefendants on appeal.

16 incarceration limit

ed the foreseeability of any of the transactions that occurred after the defendant is

incarcerated. P uig-Infante

, 19 F.3d at 945. Again, however, the district court expressly took into

consideration the time period in which Alexander was incarcerated.

Under the above described circumstances, the district court’s finding is plausible in light of

the record as a whole. Therefore, we do not believe t hat t he district court’s finding is clearly

erroneous.

B. Apprendi challenge to prison sentences.

Relying on Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), Alexander, Faulk,

and Green argue that their sentences must be vacated and remanded for resentencing. 4 T he Supreme

Court held last year that "[o]ther than the fact of a prior conviction, any fact that increases the penalty

for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond

a reasonable doubt." Apprendi , 120 S. Ct. at 2362-63. This Court has applied A pprendi's holding

to the sentencing scheme for drug convictions under 21 U.S.C. § 841(b). S ee United States v.

Doggett , 230 F.3d 160, 164-65 (5th Cir. 2000). In D oggett

, we held "that if the government seeks

enhanced penalties based on the amount of drugs under 21 U.S.C. § 841(b)(1)(A) or (B), the quantity

must be stated in the indictment and submitted to a jury for a finding of proof beyond a reasonable

doubt." Id.

In the present case, the amount of heroin involved in the conspiracy count was not stated in5 We note that the factual basis agreed to by Cooper, Faulk, and Green stated that the amount

of heroin involved was "not more than one (1) kilogram."

17 the indictment. 5 Error under Apprendi requires reversal only if a defendant's sentence exceeds the

statutory maximum. See United States v. Keith , 230 F.3d 784, 787 (5th Cir. 2000); Doggett , 230

F.3d at 165 (stating that even if a drug amount is not alleged in the indictment, Apprendi does not

apply where the sentence is less than the statutory maximum provided by 21 U.S.C. § 841(b)(1)(C)).

Section 841(b)(1)(C) sets the statutory maximum for an offense invo lving an unspecified amount of

a Schedule I substance at 20 years in prison. Heroin is a Schedule I substance

. S ee United States v.

Hernandez-Avalos, 251 F.3d 505, 508 (5th Cir. 2001); § 812(c), Schedule I(b)(10). The appellants’

sentences of imprisonment do not exceed the statutory maximum: 211 months (Faulk) 140 months

(Alexander); and 136 months (Green). Apprendi therefore offers no succor with respect to the

sentences of imprisonment.

C. Apprendi challenge to supervised terms of release.

In Faulk’s supplemental brief, he sets forth his Apprendi argument and concludes by generally

challenging the length of the term of supervised release imposed under the charging statute, 21 U.S.C.

§ 841. And, as previo usly noted, Green adopted all applicable arguments made by the other

appellants. Faulk and Green thus have adequately challenged their terms of supervised release.

Faulk and Green pleaded guilty to distribution of heroin and conspiracy to possess with intent

to distribute heroin in violation of 21 U.S.C. §§ 841(a)(1) and 846. Because the indictment did not

set forth the quantity of heroin, the appellants are guilty of a Class C felony. Title 18 § 3583(b)(2)

provides that “ [e]xcept as otherwise provided

, the authorized terms of supervised release are

. . . for

a class C or D felony, not more than three years

. . . .” (emphasis added). This Court has recognized6 Although Alexander raised an A pprendi challenge, he did not specifically challenge his term

of supervised release. Cooper did not raise any Apprendi challenge. Nevertheless, we have raised

sua sponte Apprendi issues in other cases. See United States v. Gonzalez

, 259 F.3d 355, vacated

for rehearing en banc

, 2001 WL 946413 (Aug. 15, 2001); United States v. Vasquez-Zamora, 253

F.3d 211, 214 (5th Ci r. 2001); U nited States v. Garcia, 242 F.3d 593, 599 (5th Cir. 2001 ). We

decline to review on our o wn motion an A pprendi challenge to Cooper and Alexander’s terms of

supervised release. We note that even if we exercised our discretion to do so in this case, the record

indicates there was no plain error.

18 that § 3583(b) is a default supervised release statute. U nited States v. Meshack, 225 F.3d 556, 578

(5 th Cir. 2000). In the case at bar, the appellants were convicted under 21 U.S.C. § 841(a)(1). The

corresponding penalty section, § 841(b)(1)(C), provides that in the case of a controlled substance

in schedule I (here, heroin), a defendant with no prior felony drug conviction shall receive a term of

supervised release of “at least three years.” This Court has recognized the differing language in the

two statutes, § 3583(b)(2) and § 841(b)(1)(C), and determined that a defendant with no prior felony

drug conviction is “required to receive a supervised release term of not less than nor more than three

years.” U nited States v. Kelly

, 974 F.2d 22, 24 (5th Cir.1992). However, if a defendant does have

a prior felony drug conviction that has become final, § 841(b)(1)(C) provides that the court must

“impose a term of supervised release of at least 6 years in addition to such term of imprisonment.”

The record indicates that Faulk does not have a prior felony drug conviction but that Green

does have such a prior conviction. Under these circumstances, Green is not entitled to relief; Faulk,

however, should h ave received a three-year term of supervised release. Faulk did not object.

Nevertheless, “[u]nder plain error review, we correct overlong terms of supervised release.”

Meshack, 225 F.3d at 578 (citing Kelly

, 974 F.2d at 24-25). 6 This Court has modified terms of

supervised release that exceeded the statutory maximum without remanding for resentencing. S ee

Doggett, 230 F.3d at 165 n.2

. H owever, as set forth below, because we are vac ating Faulk’s7 Section 2D1.1 is entitled “Unlawful Manufacturing, Importing, Exporting, or Trafficking

(Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy.”

19 sentence on another ground, the district court will have the opportuni ty on remand to correct the term

of supervised release to the statutorily mandated three-year term.

D. Faulk’s Enhancement for Possession of a Firearm under § 2D1.1(b)(1).

Faulk argues that the district court erroneously enhanced his sentence based on possession

of a firearm under U.S.S.G. § 2D1.1(b)(1), 7 which provides that “[i]f a dangerous weapon (including

a firearm) was possessed, increase by 2 levels.” Although in the instant case he pleaded guilty to the

offense of being a felon in possession of a gun in violation of 18 U.S.C. § 922(g)(1), he argues that

the gun he illegally possessed had no connection to the heroin offenses. Faulk states that when he

was arrested and the gun was seized from the vehicle there was no heroin found in the vehicle and

there was no evidence linking the car to the heroin trafficking. W ithout such a nexus, Faulk argues,

the enhancement was unwarranted.

As indicated, the sentencing guid elines pro vide that the defendant's sentence should be

increased by two levels whenever, in a crime invo lving the manufacture, import, export, trafficking,

or possession of drug s, t he defendant possessed a dangerous weapon. S ee § 2D1.1(b)(1); United

States v. Gaytan

, 74 F.3d 545, 559 (5th Cir. 1996). “The government has the burden of proof under

§ 2D1.1 of showing by a preponderance of the evidence ‘that a temporal and spatial relation existed

between the weapon, the drug trafficking activity, and the defendant.’” U nited States v. Vasquez, 161

F.3d 909, 912 (5th Cir. 1998) (quoting U nited States v. Eastland

, 989 F.2d 760, 770 (5th Cir.

1993)). Under this standard, the government must show that "the weapon was fo und in the same

location where drugs or drug paraphernalia are stored or where part of the tra nsacti on occurred."20

Eastland, 989 F.2d at 770 (internal quotation marks and citation omitted). This is a factual finding

and thus reviewed for clear error. United States v. Jacquinot, 258 F.3d 423, 430 (5th Cir. 2001).

Faulk correctly asserts that in cases dealing with an enhancement for possession of a firearm

there has been evidence affirmat ively linking the drug trafficking activity to the weapon or the place

where the weapon was found. In U nited States v. Brown

, this Court upheld t he two-l evel

enhancement pursuant to § 2D1.1(b)(1) where police found a shotgun in the trunk of the defendant's

car during the course of their investigation. 217 F.3d 247, 261 (5th Cir. 2000), r emanded on other

grounds, Randle v . United States,

__ U.S.

__, 121 S.Ct. 1072 (2001). Witnesses provided the

necessary link between the gun and the drug t rafficking by testifying that the defendant used the

vehicle to transport crack cocaine. S imilarly, in Vasquez, guns kept at the defendant's place of

business were used to enhance the sentence because the district court found that the defendant used

the business as a location to store drugs and the proceeds of drug sales. V asquez, 161 F.3d at 912;

United States v. Flucas , 99 F.3d 177, 178-79 (5th Cir. 1996) (enhancement applied where gun and

cocaine both found under defendant's car seat); United States v. Myers

, 150 F.3d 459, 465 (5th Cir.

1998) (gun found in apartment where transactions related to drug conspiracy took place).

In contrast to the facts of Brown and Vasquez , no heroin or paraphernalia was found in the

vehicle when the firearm was seized, and there is nothing in the record showing that Faulk used that

vehicle to transport hero in o r t o conduct any other activities associated with the conspiracy.

Although a codefendant’s affidavit provides that Faulk would “usually” deliver heroin to her while

driving a black “Trans Am,” the record on appeal does not indicate that Faulk was in that Trans Am

on February 2, 1997, when the firearm was seized. Likewise, the codefendant’s affidavit does not

indicate that Faulk ever possessed a firearm in the Trans Am. It is undisputed that Faulk did not own21

the vehicle in which he was a passenger at the time the gun was seized. It thus appears unlikely that

the Trans Am in which he usually delivered the heroin was the vehicle from which the gun was seized.

In any event, it was not proven by a preponderance of the evidence.

The g o vernment responds that when Faulk was arrested on February 2, 1997, he was in

possession of the firearm during the time line of the charged conspiracy, which ran from “prior to in

or about November 1996" to May 1999. It is true that Faulk possessed the gun at a point in time

during which the government charged that the conspiracy was still i n progress. However, our

research has revealed no cases in which the enhancement was applied without drugs being found with

the weapon or evidence presented that the location of the weapon was used in connection with drug

trafficking activities. As a practical matter, the go vernment's argument would result in an

enhancement any time a drug offender is found with a gun regardless of whether drugs are also found

or otherwise connected to the gun's location as long as the government alleges that the defendant is

involved in an ongoing conspiracy. Of course, such a holding would relieve the government of its

b urden of proving that a temporal and spatial relation existed between the weapon, the d rug

trafficking activity, and the defendant.

Our decision in United States v. Siebe, 58 F.3d 161 (5t h Cir. 1995), is instructive on this

issue. In that case, the appellant asserted that the district court erred in assessing two points under

§ 2D1.1(b)(1) based solely on the presumption that he possessed a firearm because he was a police

officer. We explained that absent the presumption there was no evidence that Siebe possessed a

firearm during the commission of the offense. While we acknowledged that the FBI had discovered

90 guns in Siebe’s residence, there was no evidence of drug trafficking activities at the residence. As

such, we concluded that the government had not shouldere d its burden of proving the requisite8 Paraphrasing § 2D1.1, comment. (n.3), the district court stated that “[b]ecause the weapon

was present, and it is not clearly improbable that the weapon was connected with the offense, t he

enhancement is warranted.” As set forth above, however, the government did not establish that Faulk

possessed the weapon within this Court’s interpretation of § 2D1.1, i. e. a temporal and spati al

relation must exist between the weapon, the drug trafficking activity, and the defendant. Thus, the

burden had not yet shifted to Faulk to prove that it was clearly impro bable that the weapon was

connected with the offense. Cf. United States v. Marmolejo, 106 F.3d 1213, 1216 (5th Cir. 1997)

(explaining that the firearm was possessed during the commission of a drug offense and the defendant

had failed to bear his burden of proving that it was "clearly improbable" that the gun was connected

to the offense).

22 con nect io n between the firearm and the drug trafficking. Thus, we remanded for resentencing

without the two point enhancement.

We have recognized that firearms are "tool s of the trade" in drug conspiracies. U nited States

v. Mergerson

, 4 F.3d 337, 350 (5th Cir. 1 993). Nonetheless, in the instant case, the government

failed to demonstrate that a temporal and spatial relation existed between the weapon, the drug

trafficking activity, and the defendant. Under these circumstances, the district court clearly erred in

finding the enhancement u nder § 2D1.1(b)(1) applies. 8 We therefore vacate Faulk’s sentence and

remand for resentencing without the enhancement.

E. Faulk’s Enhancement as an Organizer or Leader.

Faulk argues that the district court erred by finding that he was the organizer or leader of a

criminal enterprise and by enhancing his sentence four levels. He argues that rather than bei ng a

leader or organizer of criminal activity he was merely a co-supplier of heroin alon g with Cooper.

According to Faulk, he merely distributed the drugs to the codefendants, who could then resell it to

anyone they wished. He contends that there was no evidence that he controlled any of the other

defendants or claimed a greater percentage of the profit from the drug sales.

"If the defendant was an organizer or leader of a criminal activity that involved five or more23

participants or was otherwise extensive" a four-level increase is warranted. S ee § 3B1.1(a). In

det ermining whether a defendant is a leader, a court should consider the following factors: "t he

exercise of decision making authority, the nature of participation in the commission of the offense,

the recruit ment o f acco mplices, the claimed right to a larger share of the fruits of the crime, the

degree of participation in planning or or ganizing the offense, the nature and scope of the illegal

activity, and the degree of control and authority exercised over others." § 3B1.1, comment. (n.4).

We review such a factual finding for clear error. United States v. Thomas , 120 F.3d 564, 574 (5th

Cir. 1997).

Contrary to Faulk's arguments, the evidence showed that both Faulk and Cooper were the

leaders and organizers of the heroin distribution. At least five participants in the criminal activity are

found by looking at the codefendants: Cooper, Faulk, Green, Alexander, and Thompson. S ee United

States v. Wilder, 15 F.3d 1292, 1299 (5th Cir. 1994) (defendant m ay be included among the five

participants). Eberhardt testified that Claude Robinson told him the heroin bundles he received had

been arranged for, purchased by, and belonged to Faulk and Cooper

. Faulk and Cooper further

traveled to New York to obtain heroin from Victor Castro, one of their New York suppliers. Faulk

and Cooper in turn supplied Green, Alexander, and Thompson. Eberhardt testified that Thompson

told him that she sold heroin on behalf of Faulk and Cooper. T ho mpso n also signed an affidavit

stating t hat Faulk had asked her if she wanted to sell heroin herself since she had been referring

customers to him. T his affidavit provides that Faulk recruited Thompson to sell for him. Moreover,

Thompson's affidavit states that she received 5 packs of heroin at a time from Faulk and Green, which

she then sold for approximately $1,250. Faulk allowed her to keep $150 of the sal e. This

arrangement shows that Faulk received a greater share of the profits.9 Faulk also argues that one point was erroneously added to his criminal history pursuant to

U.S.S.G. § 4A1.1(e) fo r co mmit ting the offense less than two years after being released from

imprisonment. He contends that because the indictment states the offense commenced on or about

November 1996 and he was released from prison on October 28, 1994, he committ ed the offense

more than two years after his release. The indictment actually states that the conspiracy began "at

a time unknown, but prior to in or about November 1996." (emphasis added). In any event, Faulk

concedes in his brief that even if the one point added to his criminal history were removed his

sentence would not change. Accordingly, any error is harmless.

10 In pertinent part, U.S.S.G. § 5K1.1 provides that “[u]pon motion of the government stating

that the defendant has provided substantial assistance in the investigation or prosecution of another

person who has committed an offense, the court may depart from the guidelines.”

24 Proof that the defendant supervised only one other culpable participant is sufficient to make

the defendant eligible for the enhancement. See United States v. Washington, 44 F.3d 1271, 1281

(5th Cir. 1995); United States v. Okoli , 20 F.3d 615, 616 (5th Cir. 1994). There can also be more

than one person who qualifies as a leader or organizer of a criminal association or conspiracy. See

§ 3B1.1, comment. (n.4). Given Faulk and Cooper's arrangement for the hero in deliveries, their

supplying of the other defendants, Faulk's recruitment and control of Thompson, and his claim to a

greater porti on of profit from Thompson's sales, the district court did not err in finding that Faulk was

a leader or organizer. S ee § 3B1.1, comment. (n.4); United States v. Ocana, 204 F.3d 585, 592 (5th

Cir . 2000). 9

F. Downward Departure

Faulk argues that the district court erred by failing to actually depart from h is applicable

guide line range after granting the government’s § 5K1.1 motion based on substantial assistance. 1 0

Speci fically, he argues that although the district court initially granted the government’s §5K1.1

mo t io n t o allow a ten percent reduction in sentence, after an error in the PSR was corrected at

resentencing, the court erroneously refused to provide the reduction.25

A district court has almost complete discretion to determine the extent of a departure under

§ 5K1.1. United States v. Alvarez

, 51 F.3d 36, 41 (5th Cir. 1995). The district court also has almost

complete discretion to deny the government's § 5K1.1 motion. Myers

, 150 F.3d at 463. This Court

h as jurisdiction to review a challenge to a sentence only if it was (1) imposed in violation of law,

(2) imposed as a result of an incorrect a pplicat io n of the guidelines, (3) resulted from an upward

departure, or (4) was unreasonably imposed for an offense not covered by the guidelin es. United

States v. Yanez-Huerta

, 207 F.3d 746, 748 (5th Cir. 2000). We lack jurisdiction to review the district

court's refusal to depart downward, unless the district court's refusal was based on a mistaken belief

that it lacked the power to depart downward. I d. "A refusal to grant a downward departure is a

violation of law only if the court mistakenly assumes that it lacks authority to depart." Id.

Based on the init

ial PSR, Faulk’s guideline range was 235 to 293 months. After granting the

government’s § 5K1.1 motion for a ten percent departure, the court sentenced Faulk to 211 months.

Subsequently, the probation office revised Faulk’s criminal history category in the PSR, resulting in

an applicable guideline r ange o f 210 to 262 months. Faulk asserts that after the revision he was

ent it led to a sentence of 189 months with the § 5K1.1 departure (ten percent). However, the

government did not reurge its § 5K1.1 motion at resentencing. Instead, it filed a supplemental motion

and memorandum urging the district court “to maintain the current sentence [of 211 months] in light

of the very serious nature of this offense along with considerations of the defendant’s cooperati on.”

In the court’s revised statement of reasons for imposing sentence, it agreed with the government and

“decline[d] to modify defendant’s sentence.” The court resentenced Faulk to the original sentence,

211 months.

Faulk, relying on the following language also contained in the court’s revised statement of11 "[A] district court may review the Government's refusal to move for a downward departure

if the refusal is based on an unconstitutional motive." U nited States v. Solis

, 169 F.3d 224, 226 (5th

Cir. 1999). There has been no assertion that the g overnment ’s refusal to move for a downward

departure at resentencing was based on an unconstitutional motive.

26 reasons for imposing sentence, argues that the court in fact granted the government’s motion: “The

Court finds that the nature, extent, significance, and t imeliness of the assistance rendered by the

defendant warrant a downward departure.” It is unclear but it appears this language may have been

inadvertently left in the document from the original sentencing.

Our interpretation of these events is that the gove rnment rescinded its § 5K1.1 motion at

Faulk’s resentencing and thus, the district court did not hav e the authori ty to depart downward.

"Absent a motion for downward departure made by the [g]overnment, a sentencing court is without

authority to grant a downward departure on the b asis of substantial assistance under § 5K1.1."

United States v. Price

, 95 F.3d 364, 367 (5th Cir. 1996); s ee also Wade v. United States

, 504 U.S.

181, 112 S.Ct. 1840, 1843, 118 L.Ed.2d 524 (1992) (stating that "upon motion of the government"

is a condition limit

ing the court's authority to depart under § 5K1.1). 1 1 Because the district court did

not have authority to grant the departure, it could not have erred in refusing to do so.

Even assuming the government’s § 5K1.1 motion was not rescinded, another interpretation

of the events would be that the district c o urt denied the motion and simply refused to depart

downward. Under that scenario, we have no jurisdiction to review the decision unless the district

court was mistaken about its authority to do so, and there is no indication of that in the instant case.

Yanez-Huerta , 207 F.3d at 748.

Another alternative scenario, again assuming a properly filed § 5K1.1 motion, would be that

the district court granted the motion, but failed to depart downward. If so, this scenario would be27

controlled by United States v. Hashimoto

, 193 F.3d 840, 843 (5th Cir. 1999)

. In Hashimoto, t he

gover nment filed a § 5K1.1 motion at the defendant’s resentencing after appeal and remand. The

district court granted the motion, expressly stated that it was granting the departure, and yet imposed

a sentence within the guideline range. Id. at 843. The defendant appealed, contending that his

sentence must be vacated because although the district court granted the §5K1.1 motion it did not

depart downward. This Court held that because the defendant was not challenging the extent of an

actual downward departure or the denial of a § 5K1.1 motion, “our rule that we will not review the

denial of a § 5K1. 1 motion does not apply.” I d. The question was whether, after granting that

mot ion, the district court was required to depart downward. This Court held that although t he

district court erred in not departing after granting the § 5K1.1 motion, the error was harmless because

the sentence imposed was authorized. Likewise, here any error is harmless because the district court

was authorized to impose the sentence Faulk received. Accordingly, our precedent precludes Faulk

from obtaining relief on this claim.

III. CONCLUSION

For the above reasons, we VACATE and REMAND Faulk’s sentence. We AFFIRM the

sentences of Cooper, Green and Alexander.

AFFIRMED in part, VACATED in part, and REMANDED.