* Pursuant to 5 TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH CIR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED July 20, 2007 Charles R. Fulbruge III Clerk 

### IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-10730

UNITED STATES OF AMERICA Plaintiff - Appellee v. ANTHONY STEVEN AGUILAR, also known as Antonio; JEFFREY RYAN; JEFFREY ALAN BREVICK Defendants - Appellants

Appeals from the United States District Court for the Northern District of Texas USDC No. 4:05-CR-195-5
Before JOLLY, CLEMENT, and OWEN, Circuit Judges. PER CURIAM: * Appellants Aguilar and Brevick were convicted of conspiracy to possess with intent to distribute and to distribute more than 50 grams of pure methamphetamine. Appellant Ryan was acquitted on that count, but was convicted ofmaintaining a drug-involved premises. The appellants appeal theirNo. 06-10730

2 convictionsand sentenceson numerousgrounds. For the reasons that follow, we AFFIRM.

I. We consider first the issues raised by Aguilar. He argues that the district court erred by denying his motion to suppress and by relying on unreliable hearsay in sentencing him. A. Aguilar moved to suppress evidence of methamphetamine found in a box that he threw into an open garage while walking away from police officers. The police were at the apartment complex, where Aguilar lived with his girlfriend, to investigate a report of shots being fired. One of the officers seized the box from the garage and opened it, without a warrant. Later, the officer obtained consent to search the garage from a person who was an overnight guest at the apartment, who had parked her vehicle in the garage from which the box was seized. The district court admitted the evidence on the basis that it inevitably would have been discovered in the consensual search. Even if we assume that the district court erroneously applied the inevitable discovery exception to the warrant requirement, any error is harmless. There was little testimony about the methamphetamine found in the box, the government did not introduce any physical evidence or chemical analysis of the substance, and the prosecutor did not refer to the evidence in
c losing argument. There was overwhelming evidence that Aguilar purchased ice methamphetamine in quantities of quarter-pounds and larger from two different
suppliers, that he sold ice on numerous occasions in quantities ranging from grams toounces, and that he and a supplier opened a used car business together
as a front for their drug business. Although the evidence against Aguilar consisted largely ofthe testimony ofinformants, there is no basis for concludingNo. 06-10730

3 that thejury would have rejected the informant testimony in the absence ofthe evidence of the methamphetamine found in the box. B. Aguilar raises two issues relating to his sentence. First, he argues that the district court erred by increasing his base offense level by two levels for his role as a supervisor or manager. The Presentence Report (“PSR”) recommended theenhancement based on information that, in an interviewwith federal agents, a co-defendant, Flores, told the agents that Aguilar employed Matthew Becker
as a runner. Aguilar’s counsel filed an objection to the PSR, stating: “The defendant denies knowing Matthew Becker and MatthewBecker did not testify at trial.” In response to the objection, the government stated that the information w

as developed as a result of an extensive investigation and
numerous statements of witnesses and participants believed to be reliable. In
an addendum tothe PSR, the probation officer disagreed with Aguilar’s objection and stated that the information relied on for the enhancement was derived from
a DEA Form 6 prepared by Agent McAuliffe on March 23, 2004, which contains
an accurate summary of information provided by Francisco Flores during an interview with government agents. On June 27, three days before the sentencing hearing, the district court entered an order stating that it had reviewed the PSR and the objections and had tentatively concluded that the objections were without merit. The court stated that it was advising the parties ofits tentative conclusion so that it could be taken intoaccount by the parties in determining the presentations tobe made at the sentencing hearing. At the sentencing hearing on June 30, the district court asked Aguilar ifhe wished to offer any evidence in opposition to the PSR, and, through hiscounsel, hedeclined. His counsel objected to the enhancement, stating: “It’s alleged that Mr. Aguilar supervised a Matthew Becker, and MatthewBecker’s nameapparently only comesfrom oneofthese peoplewhoareNo. 06-10730

4 felons. And nobody has ever talked to Matthew Becker, no law enforcement agent has talked to a Matthew Becker, or even found that one exists.” Aguilar did not testify at the sentencing hearing. Flores’somission ofany mention ofa runner in his trial testimony does not make that testimony contradictory or inconsistent with what he told the federal agents in the interview, as reported by the PSR. Because Aguilar did not present any evidence in opposition to the PSR, but simply made a conclusory objection, the district court did not err by adopting the PSR’s findings. See United States v. Peters, 283 F.3d 300, 314-15 (5th Cir. 2002) (affirming role enhancement where defendant “objected to the enhancement based on his activities, [but] he did not offer evidence that refuted the findings of the PSR”). Aguilar acknowledges that his sec ond argument with respect to his sentence

-- that is, that Crawford v. Washington, 541 U.S. 36 (2004), should apply when hearsay information is used to dramatically increase a defendant’s sentence

-- isforeclosed by United Statesv. Beydoun, 469 F.3d 102, 108 (5th Cir. 2006) (“there is no Crawford violation when hearsay testimony is used at sentencing, rather than at trial”). He raises the issue to preserve it for further review. II. We now consider the issues raised by Brevick. He argues that his initial trial counsel rendered ineffective assistance by failing to inform him of a plea offer, that the district court erred by admitting evidence of his possession of methamphetamine when he was arrested after the conspiracy had ended, that the district court erred by allowing his common-lawwife to testify against him without inquiry into the applicability of the marital privilege, and that the evidence is insufficient to support the district court’s findings at sentencing as to the weight and purity of the methamphetamine for which he was held accountable.No. 06-10730

5 A. Following an evidentiary hearing on Brevick’s motion for a newtrial based
on ineffectiveassistance, thedistrict court found that thegovernment had never made a plea offer to Brevick’s initial trial counsel, but instead that the prosecutor merely mentioned to counsel that the government might be willing to enter into a cooperation agreement with Brevick. The district court found that counsel relayed this conversation to Brevick, and that Brevick indicated that hewas not interested. The court concluded that counsel reasonably did not pursue the matter further, and also noted that it probably would not have accepted such a plea. Brevick has not carried his burden of demonstrating that thedistrict court’sfactual findingsareclearly erroneous. We therefore reject his claim of ineffective assistance of counsel. B. The indictment alleged that the conspiracy continued until December 14, 2005, the date of the indictment. When Brevick was arrested a little less than three weeks later, on January 4, 2006, at his home, the arresting officers found several baggies of methamphetamine and drug paraphernalia under the bed where Brevick was hiding. The district court overruled Brevick’s objection that the evidence was irrelevant, and admitted it as to the issues of intent and
absence of mistake or accident. Brevick argues that the evidence was inadmissible under Fed. R. Evid. 404(b), that he did not challenge intent or lack of accident or mistake, and that we must remand because the district court failed to find that the evidence was relevant to a trait other than his character
or that itsprobativevaluewas not substantially outweighed by undue prejudice. See United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en banc). Any error in admitting evidence of the methamphetamine seized when Brevick wasarrested is harmless. The district court instructed the jury that the seizure of methamphetamine in Brevick’s home occurred after the conspiracyNo. 06-10730

6 charged in the indictment had ended and thus it was not proof that he participated in the conspiracy, and that the evidence was admitted against Brevick, who was contending that he was not guilty, solely as to the issues of intent and absence ofmistake or accident. The government did not refer to the evidence in its closing argument, and the evidence of Brevick’s guilt was overwhelming: several witnesses testified that they sold ice methamphetamine to Brevick; other witnesses testified that Brevick supplied ice to them; Brevick was identified by law enforcement officers during surveillance of a warehouse; and another witness, Salee, testified that Brevick opened his own warehouse to distribute ice after Salee’s warehouse was shut down. C. The district court did not commit reversible error by allowing Lynne Gerganess to testify against Brevick without first conducting a hearing to determine ifshe voluntarily waived the marital privilege or whether any ofher testimony would fall within the scope ofmarital communications covered by the privilege. On the witness stand, Gerganess testified that she did not consider herself to be Brevick’s common-law wife. She disavowed a handwritten declaration, signed by her and Brevick, purporting to declare that they were common-law spouses. Furthermore, Brevick has not identified any testimony by Gerganess that would fall within the scope of the communications aspect of the marital privilege. D. Thedistrict court rejected Brevick’sobjections to the PSR and accepted the PSR’s determination that Brevick was responsible for more than 1.5 kilograms
o f ice methamphetamine. Brevick argues that there was no specific, reliable evidence that the methamphetamine was ice as opposed to regular methamphetamine and thus his base offense level should have been 34 rather than 38. We reject this contention. The district court’s findings are supportedNo. 06-10730

7 by the evidence presented at trial and by the debriefing statements of Brevick’s suppliers, as reported in the PSR, and Brevick offered no evidence to rebut the PSR’s findings. III. Finally, we consider the issues raised by Ryan. He argues that there is insufficient evidence to support his conviction for maintaining a drug-involved premises. He also contends that the district court erred by finding that he participated in the underlying drug offense in calculating his base offense level, by denying his motion tosuppress, and by finding that it could not consider a codefendant’s plea bargain in deciding whether to grant a downward departure from the Sentencing Guidelines range. A. Ryan argues that the government failed to meet its burden of proving beyond a reasonable doubt that he intended to maintain his residence for the purpose of manufacturing, distributing, or using drugs. He maintains that in the residential context, the manufacture, distribution, or use of drugs must be at least one of the primary or principal uses to which the house is put. He asserts that the evidence at trial established only that people used drugs recreationally at his home, and that the consumption of drugs there was incidental to the primary purpose of residence. The indictment charged Ryan with violating 21 U.S.C. § 856(a)(1) and (2). To sustain a conviction under § 856(a)(1), “the government must prove that the defendant (1) intentionally and knowingly (2) opened or maintained a place (3) for the purpose ofusing, manufacturing or distributing a controlled substance.” United States v. Roberts, 913 F.2d 211, 219 (5th Cir. 1990). “[T]he government need not prove that drug distribution was the primary purpose of [the defendant’s maintaining the place], merely that drug distribution was a significant purpose.” U nited Statesv. Meshack, 225 F.3d 556, 571 (5th Cir. 2000)No. 06-10730

8 (internal quotation marks and citation omitted). For a violation of § 856(a)(2), the government must prove that the defendant “(1) managed or controlled [a place] (2) either as an owner, lessee, agent, employee or mortgagee and (3) knowingly and intentionally rented, leased or made available for use with or without compensation, the building for the purpose of unlawfully manufacturing, storing, distributing or using a controlled substance.” United States v. Cooper, 966 F.2d 936, 942 n.8 (5th Cir. 1992). This court has stated that “§ 856(a)(2) is designed toapply tothe person whomay not haveactually opened or maintained the place for the purpose ofdrug activity, but who has knowingly allowed others to engage in those activities by making the place ‘available for use ... for the purpose of unlawfully’ engaging in such activity.” U nited States v. Chen, 913 F.2d 183, 190 (5th Cir. 1990). Priscilla Pena testified thatfrom 2002to2004, shewasengaged in thesale and distribution of ice methamphetamine. She testified that she and Ryan
were personal friends and had attended the same elementary and junior high schools. When asked whether she stored drugs at Ryan’s house, she said that occasionally she would leave drugs there if she was going somewhere, but that she usually would go to his house to “hang out” or to meet Steve Hitchcock, who
was staying with Ryan at the time and was buying 2 to 4 ounces of ice methamphetamine from her usually every two weeks, if not every week, for a couple ofmonths. She testified that Ryan knew that she was using his house as
a meeting place for sales, and that he was there when some of the sales took place. She testified further that, on two occasions, she watched Ryan use acetone to wash ice methamphetamine at his home. Pena testified that when she spoke to Ryan on the telephone, some of the conversations were about arranging toeither store or smoke ice methamphetamine and othersweresocial in nature.No. 06-10730

1 Flores testified that Pena was his girlfriend from 2000 to 2002.

2 The record contains nothi ng to indicate the size of the safe. Pena’s brother-in-law testified that hesawRyan and Pena with the safe in the check-out line at thestorewhere they purchased it, so presumably it was not an extremely large or heavy safe.

3 Ryan’s mother testified that the room wasalsothe only place in the house where legal cigarettes were smoked. 9 Pena testified that she was involved in a romantic relationship with Francisco Flores from 1999-2001, 1 and that they remained friends and were involved in a drug business relationship for about two and one-half years after their romantic relationship ended. Flores testified that he took ice methamphetamine to Pena at Ryan’s house and that he smoked ice methamphetamine with Pena and Ryan at Ryan’s house. Pena testified that she purchased a pound of ice methamphetamine from ChrisAlmaguer and left it in a friend’scar. When she went to retrieve the drugs from the friend’s car, she learned that the car was at a mall, so Ryan took her to the mall to get the drugs. She testified that Ryan and his girlfriend were fighting and they were afraid that the girlfriend might take the drugs, so Ryan took her to a Wal-Mart to purchase a safe in which to store the drugs at his house. 2 Ryan programmed the electronic code on the safe, and he was the only person who knew the combination. Ryan and Pena stored the safe with the pound of ice in the “smoke room,” an upstairs room at Ryan’s house that was designated as the place where he and his friends smoked ice. 3 Pena stated that she smoked ice in the smoke room with Ryan and others, and that Ryan occasionally provided ice for other people to smoke. Pena testified that the pound of ice was stored in the safe at Ryan’s house only for a day or a couple of days, because he told her she needed toget it out ofhis house. Law enforcement officers found the safe in the smoke room when they searched Ryan’s home after he was arrested.No. 06-10730

10 Ryan contends that the evidence is insufficient to establish that he maintained his housefor the purposeofdrug useor distribution and that hewas merely helping a friend when he allowed Pena to store the pound of methamphetamineat hishouse. He explains that the smoking room at his home
was maintained to prevent anyone who smoked (legal cigarettes or controlled substances) from “smoking up” the entire house. He contends that he maintained his home for the purpose ofresiding in it and that any drug activity there was only incidental. It was within the jury’s prerogative to weigh the evidence and reject Ryan’s explanation. Although not overwhelming, the evidence was sufficient to permit a rational juror to conclude that Ryan knowingly made his home available to others for the purpose of unlawfully storing, distributing, and using ice methamphetamine. B. The district court found that Ryan was involved in the underlying drug activity and increased his base offense level to 34, based on 457 grams of methamphetamine, consisting of the pound (453.6 grams) of ice that Ryan and Pena stored in Ryan’s home, and the 3.4 grams that Ryan possessed when he
was arrested. Ryan argues that his sentence is unconstitutional because it is based on facts he did not admit and which were not proved to a jury beyond a reasonable doubt. He argues that his sentence was improperly enhanced because he was acquitted on the drug conspiracy count and had no involvement with drug activity other than as a casual user. Ryan’s sentence is not unconstitutional. The district court properly treated the guideline range as advisory, and it was free to find the facts used to calculate that range at sentencing by a preponderance of the evidence. The district court’s finding that Ryan was involved in the underlying drug activity is supported by the evidence presented at trial and the findings in the PSR. Ryan’sacquittal on theconspiracy count does not precl ude the district court fromNo. 06-10730

11 considering Ryan’s conduct in the drug conspiracy. U nited Statesv. Valdez, 453 F.3d 252, 264 (5th Cir. 2006). C. Ryan next raises questions about the legality of his arrest, the search of his automobile, and the consent tosearch his house. On January 28, 2004, Pena went to Ryan’s house to retrieve the pound of ice she had stored there in the safe. When she left, police officers stopped her car, but she refused to consent to a search, so the officers let her go. She drove away, then stopped at a park, where she called Ryan to tell him what had happened. Ryan and his girlfriend left his house and arrived at Pena’s location. Pena got into Ryan’s vehicle. They headed north, then made a U-turn and returned to Pena’svehicle. Pena got out ofRyan’svehicle and got into her own. Ryan followed Pena closely as they drove away. Officers conducting surveillance stopped Ryan after they saw him change laneswithout signaling. He refused to consent to a search of his car, and he was arrested on the trafficviolation. When the officers searched his car, they found a small amount of ice. When Ryan was pulled o ver, Pena sped away toward the airport. She drove through the airport at 80 miles per hour, and airport police saw her dumping drugs out of her car onto the road. She was eventually apprehended and arrested. After Pena was apprehended, Ryan signed a consent to search his residence. He told the agents they would find narcotics in the house. During the search, officers found the safe and drug paraphernalia in the smoking room. In
a freezer in Ryan’s garage, the officers found a jar that contained a “wash” solution consisting ofacetoneand methamphetamine residue. The district court denied Ryan’s motion to suppress evidence of the contents ofthejar. Although the district court found that the officers’ subjective reason for arresting Ryan was his refusal to consent to a search of his vehicle, it also concluded that theyNo. 06-10730

12 had an objectively reasonable basis for arresting him based on the traffic violation. The court further found that the officers had probable cause to believe that Ryan was engaged in drug trafficking activities at the time he was stopped and that there might be some evidence of that activity in his vehicle. In his opening brief, Ryan argues that the government failed to establish any basis for the initial stop ofhisvehicle, and argues that the search ofthe car and the consent to search his home were all products of the illegal initial stop. In his reply brief, heconcedes that therewas probablecausefor the policetostop his vehicle for changing lanes without signaling, but argues, for the first time, that his arrest was illegal because the sole reason that he was arrested was his refusal to consent to the search of his car. Generally, wedonot consider argumentsraised for thefirst time in a reply brief. U nited States v. Avants, 367 F.3d 433, 449 (5th Cir. 2004). In any event, the district c

ourt correctly concluded that there was no Fourth Amendment violation because the officers had probable cause to arrest Ryan based on the traffic violation. Therefore, his consent to search his home was not the fruit of
an illegal arrest, and the district court did not err by admitting evidence of the contents of the jar found in Ryan’s freezer. D. Ryan argues that the district court erred by concluding that it could not consider the plea agreement and lenient sentence ofco-defendant John Grote in deciding whether to depart downward from the Sentenc ing Guidelines range. Ryan asserts that Grote received a lenient sentence because he iswealthy. Ryan maintains that because he is less culpable than Grote, a downward departure for him is the only way to eliminate the sentencing disparity based on wealth. We have no jurisdiction to review the denial of a downward departure unless there is some indication in the record that the district court erroneously believed that it lacked authority todepart. U nited Statesv. Hernandez, 457 F.3dNo. 06-10730

13 416, 424 & n.5 (5th Cir. 2006). The district court expressed its concern with the leniency ofGrote’ssentence, but concluded that itwould be inappropriate togive the “freaky” sentence of one of Ryan’s co-conspirators significant weight. Because the district court was aware ofits authority to depart, but exercised its discretion not to do so, its decision not to depart is unreviewable. IV. For the foregoing reasons, the appellants’ convictions and sentences are AFFIRMED.