*Pursuant to 5TH 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this opinion should not be published and is not precedent except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 5TH CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

December 15, 2006

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 05-31025

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GREGORY GREEN, also known as G;

ANTHONY HONEYCUT, also known as Ray,

Defendants-Appellants.

Appeals from the United States District Court

for the Eastern District of Louisiana

(2:03-CR-258-1)

Before BARKSDALE, DEMOSS and PRADO, Circuit Judges.

PER CURIAM:*

Underlying these two appeals are felony-drug convictions.

Gregory Green challenges only the calculation of his sentence;

Anthony Honeycut, only his conviction. AFFIRMED.

I.

Green and Honeycut were members of a New Orleans drugdistribution network. Green supplied heroin to local dealers,

including Honeycut. In addition to selling that heroin, Honeycut

sold cocaine to local dealers.
2

In late 2004, Green and Honeycut were charged with conspiracy

to distribute, and possession with intent to distribute, heroin, in

violation of 21 U.S.C. § 846. Honeycut was also charged with

conspiracy to distribute, and possession with intent to distribute,

cocaine hydrocholoride (powder cocaine) and 50 grams or more of

cocaine base. 

A jury returned guilty verdicts for Green and Honeycut in

April 2005. Green was sentenced, inter alia, to 92-months in

prison; Honeycut, inter alia, to 121-months. 

II.

A.

Green presents two bases for contesting his sentence

calculation. After United States v. Booker, 543 U.S. 220 (2005)

(Guidelines only advisory), in deciding whether a sentence is

reasonable, we continue to “review a district court’s

interpretation and application of the Sentencing Guidelines de

novo, and its factual findings, for clear error”. United States v.

Caldwell, 448 F.3d 287, 290 (5th Cir. 2006). 

1.

Green contests the court’s adding two levels to his Guidelines

base-offense level, pursuant to § 3B1.1(c). Under that section, 
3

the upward adjustment is proper if the defendant was an “organizer,

leader, or supervisor” in a criminal scheme. U.S.S.G. § 3B.1(c).

Green maintains: he and Honeycut were involved in a number of

“ad hoc joint-ventures”; and he never supervised Honeycut. Ample

evidence, however, showed Green regularly used Honeycut as a

“runner” to distribute drugs and collect money from street-level

dealers. United States v. Gonzales, 436 F.3d 560, 584-85 (5th

Cir.) (holding § 3B1.1(c) enhancement proper where defendant was a

supervisor of at least one of the other participants in the

criminal activity), cert. denied, 126 S. Ct. 2045 (2006). The

upward adjustment was proper. 

2.

Green challenges the amount of heroin used in determining his

advisory sentencing range. The district court found the amount of

heroin involved in the conspiracy to be between 60 to 80 grams.

Green contends: only 51 of the 77 grams of heroin entered in

evidence can be attributed to him; and, therefore, the drug-amount

range for Guidelines’ purposes should be between 40 to 60 grams. 

There was sufficient evidence that Green was involved in a

drug-distribution conspiracy of at least 60-80 grams of heroin, if

not more. Green traveled to and from New York City on numerous

occasions to obtain multiple ounces of heroin. In addition, drugdealers-turned-Government-witnesses testified they sold various

amounts of heroin after receiving it from Green. The district
4

court’s factual finding for the amount of heroin involved was

plausible in the light of the record as a whole and, therefore, was

not clearly erroneous. E.g., United States v. Betancourt, 422 F.3d

240, 246 (5th Cir. 2005). 

B.

Honeycut presents three challenges to his convictions. He

maintains the district court: (1) gave incorrect jury

instructions; (2) improperly admitted expert witness testimony; and

(3) allowed the Government to improperly cross-examine a defense

witness. 

1.

In claiming the district court improperly charged the jury,

Honeycut contends: the jury was instructed to decide first,

whether he joined a conspiracy to distribute powder cocaine, and

then to determine how much cocaine base was involved; and, in

effect, this led the jury to convict him for a cocaine-base

conspiracy (the more serious crime) by finding he joined a powdercocaine conspiracy (the less serious crime). 

In reviewing the instructions, we must first decide whether

“the court’s charge, as a whole, is a correct statement of the law

and whether it clearly instructs jurors as to the principles of law

applicable to the factual issues confronting them”. United States

v. Mendoza-Medina, 346 F.3d 121, 132 (5th Cir.) (internal citations

and quotations omitted), cert. denied, 540 U.S. 1156 (2004). “The
5

trial court’s charge must not only be legally accurate, but also

factually supportable; the court may not instruct the jury on a

charge that is not supported by evidence.” Id. In determining

whether the presented evidence sufficiently supports the charge, we

view “the evidence and all reasonable inferences that may be drawn

from the evidence in the light most favorable to the Government”,

id., with any error subject to harmless error review. United

States v. Cartwright, 6 F.3d 294, 301 (5th Cir.), cert. denied, 513

U.S. 1060 (1994). 

Any error in the instructions was harmless; at trial, there

was sufficient wiretap evidence and Government-witness testimony to

prove the existence of an extensive cocaine-base conspiracy. See

Johnson v. Sawyer, 120 F.3d 1307, 1315 (5th Cir. 1997) (“[E]ven if

the jury instructions [are] erroneous, [a court should] not reverse

[if it] determine[s], based on the entire record, that the

challenged outcome could not have affected the outcome of the

case.” (internal citation omitted)).

2.

In challenging the admission of expert testimony, Honeycut

claims a DEA Agent’s testminoy was cumulative because the Agent was

analyzing Government wiretap phrases that: (1) had already been

interpreted by previous Government witnesses; and (2) contained

information that was within the jurors’ common knowledge.
6

According to Honeycut, the testimony offered nothing substantive,

but instead clothed lay testimony with the aura of expertise. 

The admission of expert testimony is reviewed for an abuse of

discretion. E.g., United States v. Sanchez-Sotelo, 8 F.3d 202, 210

(5th Cir.), cert. denied, 511 U.S. 1023 (1994). Even if its

admission was erroneous, to reverse a conviction, the court must

find “a significant possibility that the testimony had a

substantial impact on the jury”. United States v. Cain, 587 F.2d

678, 682 (5th Cir.), cert. denied, 440 U.S. 975 (1979). It is

“well-established that an experienced narcotics agent may testify

about the significance of certain conduct or methods of operation

unique to the drug distribution business, as such testimony is

often helpful in assisting the trier of fact understand the

evidence”. United States v. Washington, 44 F.3d 1271, 1283 (5th

Cir.), cert. denied, 514 U.S. 1132 (1995). The admission of the

testimony was within the court’s discretion.

3.

Finally, Honeycut claims the district court erred in allowing

the Government to cross-examine a character witness with questions

about the witness’ knowledge about Honeycut’s criminal record.

Honeycut contends that questions about his prior misconduct sought

information not inconsistent with the witness’ testimony on direct

examination and should not have been allowed under Federal Rule of

Evidence 404(a)(1). 
7

Because Honeycut raises this issue for the first time on

appeal, we review only for plain error. FED. R. CRIM. P. 52(a). To

establish reversible plain error, a defendant must show a clear or

obvious error affected his substantial rights. United States v.

Castillo, 386 F.3d 632, 636 (5th Cir.), cert. denied, 543 U.S. 1029

(2004). If that showing is made, generally we will correct the

plain error only if it “affects the fairness, integrity, or public

reputation of judicial proceedings”. Id.

The admission of the challenged testimony did not constitute

clear or obvious error. Therefore, Honeycut’s contention that the

court should have provided limiting instructions to minimize the

effect of the testimony is foreclosed. 

III.

For the foregoing reasons, the judgments are

AFFIRMED.