* Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-60524

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PAUL DEWAYNE BARNES,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the

Southern District of Mississippi

(3:94CR131LN)

_________________________________________________________________ August 9, 1996

Before POLITZ, Chief Ju dge, and JOLLY and BARKSDALE, Circuit

Judges.

E. Grady Jolly, Circuit Judge: *

Paul Dewayne Barnes entered a conditional plea of guilty to a

charge of possession with intent to d istribute crack cocaine in

violation of 21 U.S.C. § 841. As part of his plea, he reserved the

right to appeal th e question whether the district court properly

denied his motion to suppress evidence that led to his guilty plea.

We hold that the district court proper ly refused to suppress-2-

evidence found in Barnes' home, and therefore affirm the sentence

imposed by the district court based on the guilty plea.-3- I

In September 1994, employees of Feder al Express in Memphis,

Tennessee, opened a package addressed to Henry Smith, 116

Neatherwood Drive, Jackson, Mississippi. No objection has been

made in this appeal to this conduct. Inside, they found a large

amount of crack cocaine. The Memphis police contacted the Hinds

County Sheriff's Office, and that office obtained a warrant from a

Hinds County justice court judge to search the package. When the

package arrived in Jackson, the sheriff's office opened the package

in accordance with the warrant and found over 400 grams of crack

cocaine, packaged in plastic bags inside an anti-freeze container.

They repackaged the substance and attempted a "controlled delivery"

by an investigator posing as a FedEx deliveryman. According to the

affidavit supporting a subsequent search warrant for the search of

the residence, however, "When he arrived at the residence he found

a note fastened to the front door bearing [Henry Smith's] name

directing the Federal Express delivery person to leave the package

behind a wooden fence along the west end of the house." The

officers, however, did not leave the package. About fifteen

minutes later, officers returned to the house to retrieve the note

they had seen, but the note was gone. The officers then left a

note requesting the addressee to call for the package at the FedEx

office. A short time later, officers at FedEx received a call from-4-

a male, supposedly black, who identified himself as Henry Smith and

demanded that the package be re-delivered and left in the yard by

the front door of the house. The caller referenced the correct air

bill number of the package.

T he officers obtained a second search warrant to reopen the

package to place a motion detector inside. Almost simultaneously

with this warrant, they obtained a third search warrant to search

the residence for "ledgers, records, or other documents indicating

narcotics trafficking; proceeds from narcotics trafficking, and any

other controlled substance--particularly cocaine." Only this third

warrant is the subject of this appeal. After obtaining the

warrants, they implanted the motion detector, left the package on

the doorstep, and began surveillance of the residence.

Approximately thirty m inutes after they left the package,

surveilling officers reported to the other officers that a black

female ha d moved the package and had entered the house. The

package, however, was not carried into the house. The officers

then executed the search warrant. Inside the house they found two

firearms, various amounts of marijuana and cocaine, $12,730 cash in

the ceiling, and drug-trafficking paraphernalia. They also found

a second FedEx package shipped from Los Angeles, almost identical

to the one th at they delivered. The police arrested the black

female, Tracy Wimberly. She lived at this house--116 Neatherwood-5-

Drive--wi th Paul Barnes. Barnes was arrested approximately two

weeks later.

At the suppression hearin g, Barnes argued that the evidence

d iscovered at his residence pursuant to the third search warr ant

should be suppressed. He had at first argued in his motion to

suppress that the warrant supporting the search was an anticipatory

warrant, see

, e.g.

, United States v. Wylie

, 919 F.2d 969, 974 (5th

Cir. 1990) (holding that search of premise may be authorized "when

it is known that contraband is on a sure course to its destination

there" and approving use of anticipatory search warrants in

appropriate circumstances), and that the contingent circumstance--

actual entry of the FedEx package into the house--never occurred.

He has changed his argument, however, and he now asserts that the

warrant, although not anticipator y in nature, was issued without

probable cause because it was not supported by any evidence of

criminal activity within the residence.

The government responds that the warrant clearly was not

anticipatory, and in no way was conditioned on delivery of the

package (a point now conceded by the defendant). It further argues

that there was a sufficient nexus between the package and the house

to provide the requisite probable cause for the se arch warrant,

because (1) the package--unquestionably containing contraband--was

addressed to that house, (2) a note signed by the addressee was-6-

left on the door of the house, and (3) a man identifying himself as

the addressee called demanding re-delivery of the package to that

address. This evidence, the government argues, clearly establishes

reasonable grounds to conclude that this house, which plainly was

a focal point of this drug transaction, contained evidence relevant

to the crime under investigation. The district court agreed with

the government. It therefore denied Barnes' motion to suppress the

evidence gathered pursuant to the search.

Barnes then conditionally pleaded guilty to Count II of the

indictment charging him with possession with intent to distribute

cocaine base, reserving his right to appeal the denial of his

motion to suppress. He was sentenced to 20 months imprisonment and

five years' supervised release. In addition to the denial of his

m otion to suppress, Barnes appeals three findings in the

presentence report: that he was responsible for the crack cocaine

found in the house and in the package, that he was denied

sent encing credit for acceptance of responsibility for any acts

outsi de the specific count of his plea, and the sentencing

guidelines for crack cocaine are disproportionate to that for

powder cocaine. The district court resolved all three objections

in favor of the government. Barnes now appeals.

II-7-

To determine whether probable cause exists for the issuance of

a search warrant, the district court is to make a common sense

decision whether, given all the circumstances set forth in the

affidavit, there is a fair probability that contraband or evidence

of a crime will be found in a particular place. United States v.

Wylie

, 919 F.2d 969, 974 (5th Cir. 1990). In the present case, the

district court found that there was evidence of drug traffi cking

related to the residence because the FedEx package was addressed to

the house, someone left a note (bearing the name of the addressee)

on the house, and someone identifying himself as Henry Smith, the

addressee identified by the package as located at the residence,

made a phone call demanding that the package be left at the house.

There is hardly more for us to say, except that we hold that this

evidence provides a sufficient nexus between the criminal activity

associated with the package and the address to which the package

was destined, reasonably to believe that the residence probably

contained evidence relevant to the crime under investigation.

On the other hand, we cannot agree with Barnes that the

failure of the FedEx package actually to cross the threshold into

Barnes' residence is somehow fatal to probable cause. The nexus

between the package and the residence to which it was destined for

delivery, as detailed above , remains. We further reject Barnes'1We hold that Barnes' other three assignments of error, all

relating to sentencing, lack in merit. First, his contention that

he should not have been charged, for sentencing purposes, with the

controlled substance that never entered his house, is resolved by

the determ inations underlying the suppression issue, and we

consequently hold that the district court did not err in its

calculation of the amount of crack cocaine for sentencing. Second,

in the light of our previous rulings that disparate sentences for

crack versus p owder cocaine violate neither the Eight nor the

Fourteenth Amendments, the district court did not err in den ying

Barnes' motion to depart and/or utilize the Rule of Lenity in

calculating Barnes' sentence. Finally, the district court did not

err in refusing to decrease Barnes' offense level for his failure

to demonstrate acceptance of responsibility for his offense.

-8- argument that the nexus leading to probable cause fails because of

the theoretical possibility of a scheme seeking to deceive the

authorities into erroneously concluding that the actual destination

of the package was 116 Neatherwood Drive. Even if such a ruse took

place, it was insufficient to defeat the probable cause underlying

the valid search warrant, based on the issuing judge's conclusion,

well supported by the good faith affidavits before him, that there

was a "fair probability that contraband or evidence of a crime"

would be found at 116 Neatherwood Drive. 1

III

We find that Barnes' assignments of error are without merit,

and therefore affirm his conviction and sentence.

A F F I R M E D.