UNITED STATES COURT OF APPEALS TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. REGINALD A. LANCASTER, Defendant - Appellant. No. 11-6097 (D.C. No. 5:10- CR-00072-D-1) (W.D. Okla.)

ORDER AND JUDGMENT *

Before LUCERO , EBEL, and MATHESON , Circuit Judges.

In this direct criminal appeal, Defendant-Appellant Re ginald Lancaster challenges his four drug-trafficking convi ctions and the sentence imposed for those convictions. Having jurisdiction under 18 U.S.C. § 37 42 and 28 U.S.C. § 1291, we affirm. I. BACKGROUND Viewed in the light most favorable to th e United States, see United States v. Diaz, 679 F.3d 1183, 1187 (10th Cir. 2012), the evid ence presented at trial established the following: Over the course of one year, police found Lan caster in possession of illegal

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral es toppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### September 19, 2012
Elisabeth A. Shumaker Clerk of Court2 drugs on three occasions. First, on August 15, 2008, officers conducting a traffic stop found Lancaster with 4.5 grams of cocaine base (“crack”). Second, on November 3, 2008, Lancaster, loitering near a vacant house, had twenty-eight grams (one ounce) of marijuana, $237 in sm all bills and two cell phones. And third, on July 17, 2009, after a police officer saw what appeared to be a hand-to-hand drug transaction between Lancaster and another person, officers found Lancaster with 77.22 grams of marijuana which he admitted he inte nded to distribute. In addition to finding Lancaster in posse ssion of drugs on these three occasions, police, acting pursuant to an authorized wire tap of drug dealer Gregory Boone, recorded a July 3, 2009, call between Boone and Lancas ter. During that call, Lancaster attempted to buy marijuana from Boone. Based on these incidents, as well as additional information Boone provided against Lancaster, the United States indicted Lan caster on eleven drug-trafficking charges involving crack and marijuana. A jury c onvicted him of four of those charges: 1) possessing, with the intent to distribute, five grams or more of crack on August 15, 2008 (Count 1); 2) possessing marijuana, with the intent to distribute, on November 3, 2008 (Count 3); 3) using a te lephone, on July 3, 2009, to a ttempt to buy marijuana (Count 10); and 4) possessing marijuana, with the intent to distribut e, on July 17, 2009 (Count 11). The district court sentenced Lancaster to 151 months in prison on Count 1, and sixty months in prison on each of Co unts 3, 10, and 11, all to r un concurrently. On appeal, Lancaster challenges all four co nvictions and his sentence.3 II. LANCASTER’ S CONVICTIONS A. There was sufficient evidence to support Lancaster’s conviction on Count 1 Lancaster first argues that there was insufficient evidence to convict him on Count 1. We review this argument de novo. See Diaz, 679 F.3d at 1187. Count 1 charged Lancaster with possessing w ith the intent to distribute “5 grams or more of a mixture or substance contai ning a detectable amount of cocaine base (crack)” on August 15, 2008. (R. v. 1 at 13.) The jury convicte d Lancaster of this charge, and specifically found that the offens e involved “5 grams or more” of crack. (Id. at 117.) On appeal, Lancaster argues that 1) the evidence at trial established that he possessed only 4.5 grams of cr ack on that day; and 2) be cause the amount of crack charged in the indictment was an element of the offense which the Un ited States failed to prove, the district court should have grante d him a judgment of acquittal on Count 1. We assume, without deciding, that there was insufficien t evidence to support the jury’s finding that Lancaster possesse d five grams of crack on August 15. 1 Nonetheless, because we conclude the amount of drugs charged in the indictment was not an essential element of the offense charge d in Count 1, we affirm La ncaster’s conviction on that

count.

1 The evidence at trial establis hed that, when Lancaster ran from police, he threw away a bag containing 4.21 grams of crack. And at the county jail, after his apprehension and arrest, Lancaster had an additional .29 grams of crack in his pockets, for a total of 4.5 grams of crack. Because we assume here th at Lancaster possessed only these 4.5 grams of crack on August 15, 2008, we need not ad dress the Government’s argument that there was other evidence presented at trial from whic h a jury could have inferred that Lancaster possessed at least another .5 grams of crack earlier that same day.4 Count 1 charged Lancaster with possessing crac k with the intent to distribute it, in violation of 21 U.S.C. § 841(a)(1 ). Section 841(a)(1) provides, in pertinent part, that “it shall be unlawful for any person knowingly or intentionally . . . to . . . possess with the intent to . . . distribute . . . a controlled subs tance.” The jury convicted Lancaster of that offense, finding as an initial matter that the offense involved at least a measurable amount of crack. There was sufficien t evidence to support that co nviction involving at least a measurable amount of crack, and Lancas ter does not argue to the contrary. Lancaster’s conviction for possessing crack with the intent to distribute was subject to a three-tiered statut ory sentencing scheme. See 21 U. S.C. §841(b). At the time Lancaster committed this offense, that sentencing scheme provided the following maximum penalties for a § 841(a) crack offens e: an offense involv ing an indeterminate amount of crack was punishable by not mo re than twenty years in prison, id. § 841(b)(1)(C) (2009); an offens e involving five grams or more of crack was punishable by not more than forty years in prison, see id. § 841(b )(1)(B)(iii) (2009); and an offense involving fifty grams or more of crack was p unishable by up to life in prison, see id. § 841(b)(1)(A)(iii) (2009). 2

2 After Lancaster’s offense, Co ngress, through the Fair Senten cing Act, revised 21 U.S.C. § 841(b)(1)(A)(iii) and (B)(iii), effective Augu st 3, 2010, to prov ide for a sentence of between five and forty years in prison for an offense involving tw enty-eight or more grams of crack, and a sentence of between te n years to life in prison for an offense involving 280 grams of crack. See Dorsey v. United States, 132 S. Ct. 2321, 2329 (2012). Those revisions apply retroactivel y to someone in Lancaster’s position, who committed his offense before Augu st 3, 2010, but was sentenced after that date. See id. at 2326 (addressing mandatory minimum senten ces provided in § 8 41(b)(1)(A) and (B)).5 “Drug quantity is an essential element [o f a § 841(a) offense] only if the quantity triggers a sentence beyond the maximum allowe d for the violation of the base § 841(a)(1) offense” involving only an indeterminate drug quantity under § 841(b)(1)(C). United States v. Caldwell, 589 F.3d 1323, 1333 (10th Cir. 2009) (emphasis added). “The corollary of this statement is that the quantity of drugs involved in a vi olation of § 841 is not an essential element of the offense if th e district court imposes a sentence that does not exceed the maximum set forth in § 8 41(b)(1)(C), which does not require any minimum quantity as a predicate for sentenci ng.” United States v. Walters, 163 F. App’x 674, 680 (10th Cir. 2006) (unpublished). Here, because the district court imposed a 151-month sentence, which fell within the twenty-year statutory maximum sentence available for a base § 841(a) offense involving an indeterminate amount of crack, drug quantity was not an essential element of Lancaster’s offense. Theref ore, the Government’s failure to prove drug quantity to the jury beyond a reasonable doubt is of no moment in this case. See United States v. Wilson, 244 F.3d 1208, 1214-16 (10th Cir. 2001 ); see also United St ates v. Jordan, 428 F. App’x 812, 817 (10th Cir. 2011) (unpublis hed) (upholding 210-m onth sentence where indictment charged offense under § 841(a)(1 ) and (b)(1)(A) involving five or more kilograms of a mixture containing cocaine, but the defendant, in his plea agreement,

Those revisions, however, do not affect our discussion here because, assuming the Government failed to prove that Lancaster’s § 841(a) offense involved five grams or more of crack, he would not have been subject to an enhanced sentence under § 841(b)(1)(A) or (B), either before or afte r the Fair Sentencing Act’s enactment.6 admitted to conduct involving on ly 3.5 to five kilograms of cocaine, where the sentence imposed did not exceed the maximum tw enty-year sentence available under § 841(b)(1)(C) for an offense involving an indeterminate amount of cocaine). Further, the jury’s finding that Lancaste r was guilty, under Co unt 1, of possessing a measurable amount of crack on August 15, 2 008, with the intent to distribute it was not affected by the Government char ging Lancaster in the indictme nt with a § 841(a) offense involving five grams or more of crack, and the jury finding (we are assuming improperly) that Lancaster’s offense involved five grams or more of crack. See Caldwell, 589 F.3d at 1333. The trial court instructed the jurors, without objection, that to convict Lancaster on Count 1, they had first to determine whethe r Lancaster possessed a measurable amount of crack on August 15, 2008, with the intent to distribute it. Only after convicting Lancaster of that offense did the jury th en decide whether or not the offense involved five grams or more of crack. We, therefore, uphold Lancas ter’s conviction on Count 1.
B. Lancaster waived his challenge to the search underlying Count 11 Lancaster next challenges his convic tion on Count 11, which charged him with possessing 77.22 grams of mariju ana on July 17, 2009. Lan caster contends that, because he never consented to the pat-down search th at resulted in police finding the marijuana, that search was unconstitutional and the trial c ourt should have suppre ssed the marijuana. Lancaster, however, never moved prior to trial to suppress this evidence, even though Fed. R. Crim. P. 12 (b)(3)(C) requires a defendant to make a motion to suppress7 evidence before trial. Failure to do so waives the issue, barring review. See Rule 12(e); United States v. Burke, 633 F.3d 984, 987-89 (10t h Cir.), cert. denied, 131 S. Ct. 2130 (2011). Lancaster acknowledged that his attorney did not challenge the constitutionality of this search before trial, but he asserts that defense counsel objected to the search during trial, which still preserved the issue for appe llate review. Lancaster’s attorney, however, never specifically objected to the constitutionality of this search at trial, either. Even if counsel had specifical ly objected to the validity of the sear ch during trial, however, that would still be insufficient to pres erve this issue for appellate review. See Burke, 633 F.3d at 988 & n.1 (rejecting pr ior Tenth Circuit cases permitting judicial review when a defendant failed to cha llenge a search prior to trial). Rule 12(e) does provides that, “[f]or good cause, the court may grant relief from the waiver,” but that is only “a single narrow exception to the waiver rule,” Burke, 633 F.3d at 988 (internal quotation marks omitted ). When, as here, a defendant raises a suppression issue for the firs t time on appeal, he can attemp t to satisfy Rule 12(e) by showing “good cause” why he coul d not have raised the matter be fore the district court. See Burke, 633 F.3d at 988. But Lancaste r never attempts to make such a showing, asserting instead that “[t]he reason why no motion to suppress was filed is unknown. It could have been that discovery materials had not described the situation adequately, or it could have been that Appellant’s trial counsel negligently failed to file an appropriate pleading.” (Aplt. Reply Br. at 19.) Lancaster has, therefore, waived his challenge to the8 constitutionality of the pat-down search occurring on July 17 , 2009. See Burke, 633 F.3d at 988. C. The district court did not err in admitti ng evidence referr ing to gangs and Lancaster’s gang membership Next, Lancaster asserts that all four of his convictions should be reversed because the district court erred in permitting the prosecution to e licit testimony referring to Lancaster’s gang membership. Lancaster c ontends the probative value of this gang evidence was outweighed by its unfa ir prejudice to him. See Fe d. R. Evid. 403. But we conclude the trial court did not abuse its discretion in its trea tment of this evidence. See United States v. Ford, 613 F.3d 1263, 1267 (10th Cir. 2010) (review ing evidentiary ruling for an abuse of discretion). There were three categories of gang-related ev idence presented at trial. First, two Government witnesses, police Sergeant Br ian Cook and convicted drug dealer Gregory Boone, testified that Lancaste r belonged to a gang. The tr ial court originally permitted this testimony under Fed. R. Evid. 404(b), based upon the Government’s assertion that this evidence was relevant to Lancaster’s identity , motive, intent, lack of mistake or accident, plan, and preparation. At the conc lusion of the Governme nt’s case, however, the district court sua sponte ruled that the United States ha d failed to show that this testimony that Lancaster was in a gang was rele vant for these Rule 404(b) purposes. The district court, therefore, instructed jurors to disregard Cook’s and Boone’s testimony that Lancaster was in a gang. We presume that ju rors followed the court’s instructions. See9 United States v. Chavez, 481 F. 3d 1274, 1278 (1 0th Cir. 2007). The second category of evidence that Lancaster was in a gang was his own testimony. The trial court, over Lancaster’s objection, permitted the Government, on cross-examination, to ask him about his offe r to cooperate with police in exchange for lenient treatment. During that cross-examina tion, Lancaster denied that he was a Pitts Park Hoover Crip and stated that, in offering to cooperate with auth orities, Lancaster told police that he did not want to provide any information abou t his friend, meaning Gregory Boone, but that he would “help” officers “with anything else.” (R. v. 4 trial tr. at 430- 31.) The district court perm itted this cross-examination after ruling the defense had opened the door to it by eliciting Lancaste r’s direct testimony about his willingness to cooperate with police. At th e conclusion of Lancaster’s test imony, the court, at defense counsel’s request, gave the jury a limiting instruction. 3 And the court included a similar

3 The court instructed jurors as follows: Members of the jury, you’ve heard some references in testimony regarding Mr. Lancaster’s purported ga ng affiliation or kn owledge of other purported gang members and their ac tivities. You may consider that evidence only as it bear s upon the – Mr. Lancaster’s credibility as a witness. And you may also consider it as it bears on Mr. Lancaster’s intent and knowledge in connection with th e charged offenses. You may not consider that evidence for a ny other purpose than those. The fact that the – that Mr. La ncaster may have had knowledge of other gang members or ma y have had some purport ed gang affiliation does not necessarily mean that he has committed any of the offenses charged in this case.10 limiting instruction in the final instructions given jurors before their deliberations. The third category of gang-related ev idence admitted at trial included the following: Three Oklahoma City police officers te stified that at the ti me they encountered Lancaster, they were working as part of an anti-gang project funded by a federal grant. A fourth officer testified that he had attended several gang inve stigators’ conferences. Still another officer testified that there was a lot of gang and drug activity in the area where he encountered Lancaster. The FB I case agent also testified th at he worked with “gang enforcement units.” (Id. at 105-06, 126-27.) We conclude the district court did not ab use its discretion in its treatment of this evidence, considered separately or cumulatively. Even if the district court erred in its treatment of some of this evidence, which we conclude it did not, any error would have been harmless. See Caldwell, 589 F.3d at 13 34. The evidence of Lancaster’s guilt on each of the four charges on wh ich the jury convicted him was overwhelming. Further, we could not conclude that the gang-relate d evidence improperly swayed the jury to convict Lancaster in light of the fact that the ju ry acquitted him of seven of the eleven charged offenses. Cf. Bailey v. United St ates, 410 F.2d 1209, 1212, 1215 (10th Cir. 1969) (noting jury’s decision to acquit two of five defendants sh owed jury remained impartial).

This instruction does not alter th e instruction I gave you yesterday when I struck portions of the test imony of Sergeant Cook or Mr. Boone. (R. v. 4 trial tr. at 443.)11 III. LANCASTER’S SENTENCE Lastly, Lancaster challenges his 151-mo nth sentence, arguing the district court clearly erred in finding that he was responsib le for distributing nine ounces (252 grams) of crack. The district court then used that drug quantity to calculat e Lancaster’s advisory sentencing guidelines range. 4 For sentencing purposes, the Govern ment must prove drug quantity by a preponderance of the evidence. United States v. Foy, 641 F.3d 455, 468 (10th Cir.), cert. denied, 132 S. Ct. 467 (2011). We review a sentencing court’s fact ual findings regarding drug quantities for clear error; we will revers e “only if the district court’s finding was without factual support in the re cord or we are left with th e definite and firm conviction that a mistake has been made.” Id. Where, as here, at least for the most part, “the actual drugs underlying a drug quantity determination are not seized, the tr ial court may rely upon an estimate to establish the defendant’s guideline offense leve l so long as the information relied upon has some basis of support in the facts of the particular case and bears sufficient indicia of reliability.” Id. (internal quotation marks omitted). “‘When choosing between a number of plausible estimates of drug quantity, none of which is more likely than not the correct quantity, a court must err on the side of cauti on.’” United States v. Higgins, 282 F.3d

4 Although Lancaster’s releva nt conduct, for sentencing purpose, also involved marijuana, the parties agree that the amount of marijuana with which Lancaster was involved had a negligible impact on his sent ence, and it is the amount of crack for which he is responsible that drove the determin ation of his offense level and the resulting advisory guideline range.12 1261, 1280 (10th Cir. 2002) (quoting United Stat es v. Richards, 27 F.3d 465, 469 (10th Cir. 1994)). In this case, the presentence report dete rmined that, for sentencing purposes, Lancaster was responsible for distributing 61.75 ounces of crack. This was based on a statement Lancaster made to po lice in July 2009 indicating that he bought at least a half ounce of crack every other day from June 2008 through July 2009. That amount, 61.75 ounces of crack, resulted in an offense level of 34, which pr oduced an advisory guideline range of 188 to 235 months. Lancaster object ed to this amount, and at sentencing, the district court found, instead, that it was “v ery probable” that Lancaster was responsible for distributing “somewhere between” nine and 61.75 ounces of crack. (R. v.4 sentencing tr. at 142-43). “[E]rring on the side of caution,” however, the sentencing court ultimately found Lancaster responsible for nine ounces of crack. (Id. at 143-44.) That finding reduced Lancaster’s offense level to 30, and his advisory guideline range to 121 to 151 months in prison. The district court then imposed a sentence at the top of that range, 151 months, for Count 1, and sixty months each for Coun ts 3, 10 and 11, all to run concurrently. The Government presented su fficient evidence to suppor t the trial court’s finding, by a preponderance, that Lancas ter’s relevant conduct involved nine ounces of crack. In particular, Gregory Boone testified at trial that he sold Lancaster a total of “at least” 4.5 to nine ounces of crack. (Id. at 173.) Lancaster argues that the district c ourt should not have relied on Boone’s13 testimony because the jury clearl y found his testimony to be incr edible, in light of the fact that the jury acquitted Lancaste r on the seven counts that were based solely on Boone’s uncorroborated testimony. But the sentencing court is not bound by the jury’s implicit credibility determinations. See United States v. Rhynes, 196 F.3d 207, 240 (4th Cir. 1999), opinion vacated in part on other grounds, 218 F.3d 310 (4th Cir. 2000). And the district court here expressly noted at sentencing that it di d not “necessarily share th[e] [jury’s] apparent credibility determination” regarding Boone’s tria l testimony. (R. v.4 sentencing tr. at 142.) In any event, there was additional evid ence that corroborated Boone’s testimony and that suggests that the trial court’s findi ng that Lancaster was responsible for nine ounces of crack was a conservative estimate. Boone further testified at trial that he believed that Lancaster had other, better crac k suppliers, and that Lancaster would buy crack from Boone only when Lancaster was having trouble getting it from his other suppliers. And two Oklahoma C ity police officers testified that Lancaster himself told them that he bought drugs from several supplie rs other than Boone. Moreover, according to these officers, Lancaster ad mitted to buying a half to a full ounce every other day for approximately one year. And at sentencing, Sy lvia Moore, who had been detained in the same facility with Lancaster after his arrest, testified that Lancaste r had a half ounce of crack with him in the facility, which he told Moore he wa s still selling to his customers. This evidence prompted the district court to note that it was “very probable” that Lancaster was responsible for distributing “s omewhere between” ni ne and 61.75 ounces14 of crack. (Id. at 142-43). Thus the dist rict court, in finding that Lancaster was responsible for nine ounces of crack, pr operly erred on the side of caution. On appeal, Lancaster asserts numerous re asons why the sentencing court should not have believed either Boone’s trial testim ony or his own. But we will defer to the district court’s credibility determinations. See United States v. Keeling, 235 F.3d 533, 535 (10th Cir. 2000). We, therefore, conclude the district court’s factual finding that, for sentencing purposes, Lancaster wa s responsible for distributing nine ounces of crack, was not clearly erroneous and, thus, up hold Lancaster’s 151-month sentence. 5
III. CONCLUSION For the foregoing reasons, we AFFIRM La ncaster’s four conv ictions and his 151- month sentence.
ENTERED FOR THE COURT

David M. Ebel Circuit Judge

5 In sentencing Lancaster, the district court deemed him subject to a mandatory minimum five-year sentence under 21 U.S.C. § 841(b)(1)(B ), based on the jury’s finding that Count 1 involved five grams or more of crack. Bu t we have assumed, for purposes of this appeal, that the Government failed to prove that Count 1 involved that much crack. Further, the Supreme Court has held that the Fair Sentencing Act of 2010 applies retroactively to defendants like Lancaster. See Dorsey, 132 S. Ct. at 2326. That Act requires proof that the § 841(a) offense invo lved, not five, but twenty-eight grams or more of crack. See id. at 2329. For both of those reasons, then, Lancaster should not have been subjected to a mandatory minimum five-year sentence. Nonetheless, any error the sentencing court made in deeming a five -year mandatory minimum sentence to apply to Lancaster did not affect his sentence, be cause the district court imposed a 151-month sentence after correctly applyi ng the sentencing guidelines.