* Pursuant to 5 TH C IR

. 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 C IR

. R. 47.5.4. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-40436

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROBERT LEE MOORE,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Texas

(1:98-CR-133-2)

December 28, 1999

Before POLITZ, WIENER, and DENNIS, Circuit Judges.

POLITZ, Circuit Judge: *



### Robert Lee Moore plead ed guilty to possession of cocaine with intent to

distribute and was sentenced to 120 months in prison and five years of supervised

release. Moore timely objected to the PSR’s use of a prior state court marihuana

conviction in determining his criminal history category. He also objected to a twolevel increase in his offense level based on his role as a leader or organizer. Both

objections were rejected. Moore seeks review of these sentencing issues. For the1 U.S.S.G. § 4A1.2, application note 6.

2 Id.

3 United States v. Canales

, 960 F.2d 1311 (5 th Cir. 1992). The government contends that

the holding in Canales should not be applied to the case at bar, as Canales was decided prior

to the effective date of an amendment to application no te six. Whether the subsequent

amendment to application note six renders Canales inapplicable has not been considered by

this court. We decline to address the issue at this time because, even if the holding in

Canales is still in effect, we conclude that the trial court did not err when it determined that

the prior conviction was not unconstitutional.

4 United States v. Shannon , 21 F.3d 77 (5 t h Cir.), cert. denied 513 U.S. 901 (1994);

United States v. Howard , 991 F.2d 195 (5 th Cir.), cert. denied , 510 U.S. 949 (1993).

2 

### reasons assigned, we affirm.

ANALYSIS

Moore first contends that his marihuana conviction violated double jeopardy

pr otections and thus was constitutionally invalid under both the federal and

Louisiana constitutions. Under the Sentencing Guidelines, sentences ruled

constitutionally invalid are not to be counted in determining prior criminal history. 1



### The Guidelines do not authorize a collateral a ttack on a prior conviction or

sentence beyond that otherwise recognized in law. 2 

### Nonetheless, we have held that

a district c ourt has the discretion to entertain a collateral challenge of a prior

conviction used for enhancement purposes. 3 

### We review for abuse of discretion, and

the defendant bears the bur den of proving that the prior conviction was

constitutionally invalid. 4



### The marihuana convi c tion of which Moore complains followed a jury

acquittal in the same court for possession of cocaine with intent to distribute.

When the same act or transaction constitutes a viola t ion of two distinct statutory5 Blockburger v. United States , 284 U.S. 299 (1932).

6 The district court mistakenly conclud ed that there is no constitutional bar to the

conviction of a lesser included offense and, thus, rejected Moore’s sentencing objection. The

fifth amendment, however, prohibits successive prosecution for a greater and lesser included

offense. See Brown v. Ohio , 432 U.S. 161 (1977). The lower court’s misstatement of the

law is not fatal because it incorrectly characterized the second conviction as a lesser included

offense. Moore’s objection appropriately was overruled.

7 State v. Sandifer , 679 So.2d 1324 (La. 1996). “[I]f the evidence required to support a

finding of guilt in one crime would also support a conviction for another offense, then the

defendant can be placed in jeopardy for only one of the two.” Id. at 1329.

8 United States v. Izydore , 167 F.3d 213 (5 th Cir. 1999).

3 

### provisions, we look to see whether each provision requires proof of an additional

fact that the other does not. We thus may determine whether there are two offenses

or one. 5 

### Possession of marihuana i s separate and distinct from possession of cocaine

with intent to distribute. Each crime requires proof of a fact which the other does

not

– the controlled substance involved. Thus, there is no double jeopardy

violation under the federal Constitution. 6 

### Because the evidence required to support

a finding of guilt for possession of cocaine with intent t o distribute would not

support a conviction for marihuana, we also conclude that there is no double

jeopardy violation under the Louisiana Constitution, which requires a state court

to apply the “same evidence” test. 7



### Moore also challenges the district court’s two-level increase for his role as

a leader or organi zer of the distribution scheme under Guideline § 3B1.1(c),

maintaining that there is no evidence that he had control over the other codefendants. We review this finding for clear error. 8 

### The district court found that

Moore provided the cash to buy the cocaine and rented the vehicle used to transport9 United States v. Ressig

, 186 F.3d 617 (5 t h Cir. 1999) (holding that defendant did not

exercise control over anyone, yet his activity fit into the role of leader or organizer in light

of the factors set forth in U.S.S.G. § 3B1.1, application note 4), petition for cert. filed (Nov.

18, 1999) (No. 99-710 3). Application note 4 provides that the court should consider the

following factors:

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

commission of the offense, the recruitment of accomplices, the claimed right

to a larger share of the fruits of the crime, the degree of participation in

planning or organizing the offense, the nature and scope of the illegal activity,

and the degree of control and authority exercised over others.

4 

### it . Further, the court inferred that Moore was to claim a larger portion of the

proceeds from the sale than another co-defendant. The court did not find that

Moore exerted control over either of his co-defendants. We believe that such a

finding, however, is not necessary to impo se the two-level increase, as we have

held that a defendant need not exercise control over the other participants in the

scheme to be considered a leader or organizer. 9 

### We believe that the trial court’s

findings support the conclusion that Moore exercised organizational control over

the venture. The district court did not clearly err when it applied the two-level

increase.

The judgment appealed is AFFIRMED.