1 Senior District Judge of the Northern District of

Texas, sitting by designation.

1 UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

-----------------------

No. 92-3407

-----------------------

UNITED STATES OF AMERICA,

Plaintiff-Appellee

Cross-Appellant,

versus

SHENNA MADISON,

Defendant-Appellant

Cross-Appellee.

---------------------------------------------------- Appeals from the United States District Court

for the Eastern District of Louisiana

---------------------------------------------------- (April 21, 1993)

Befo re POLITZ, Chief Judge, DUHE', Circuit Judge, and BELEW 1

, District Judge.

BELEW, District Judge:

On April 22, 1992, SHENNA MADISON ("MADISON"), the defendantappellant and cross-appellee, was sentenced to 180 months in prison

and 60 months on supervised release in connection with various

offenses arising from her participation in a narcotics trafficking2 References to the Record on Appeal of this matter are

designated herein as (R., Vol. __ at __). The Presentence

Investigation Report is referenced to as (PSR at __, par. __).

2 operation. She appeals, contending that the evidence was

insufficient to support her conviction and that upholding her

conviction would result in a manifest miscarriage of justice.

On cross-appeal, the government contends that MADISON's

sentence must be vacated since the district court's downward

departure from the minimum guideline sentence was based, at least

in part, upon patently invalid reasons, namely, MADISON's age, her

c ulpability relative to that of her co-defendant, and tha t

MADISON's criminal history category over-represented the

seriousness of her criminal past. Finding that the evidence

supports MADISON's conviction and that the reasons given by the

distr ict court for departure from the minimum guideline sentence

are inadequate, we affirm the conviction and vacate and remand for

resentencing within the sentencing guidelines or for articulation

of adequate reasons for departure.

BACKGROUND 2

On October 2, 1991, agents of the Bureau of Alcohol, Tobacco,

and Firearms executed a search warrant at 302 Atlanta Street, in

New Orleans Louisiana, an apartment shared by Ernest Allen and

MADISON. (R., Vol. 5 at 54; Vol.6 at 113). Agents had probable

cause to believe that Ernest Allen, a convicted felon, was in

possession of a semi-automatic weapon. ( I d

. at 115). The warrant

was executed as Ernest Allen was getting into his car to go to the

hairdresser. As MADISON watched from inside the house, the agents3

stopped and interviewed Allen, and then hand-cuffed him. Five to

ten minutes after they first detained Allen, the agents knocked on

the door. After a brief pause, MADISON, who had no clothes on,

opened the door. (R., Vol.6 at 115, 199-200).

Agents searched the house and seized guns, drugs, and

laboratory equipment. Specifically, more than seven hundred grams

of crack cocaine which had been divided into numerous plastic bags

were seized. (R., Vol. 5 at 18-25). A triple-beam scale, a glass

beaker, and a box of plastic bags was seized as well as a plastic

bag, two glass vials and a spoon, all coated with cocaine residue.

( Id. at 27-29, 87). Allen admitted that drugs were scattered "all

through the house." In fact, drugs and paraphernalia were found in

a closet in the back bedroom. One bag of crack cocaine was

recovered from behind a couch in the living room. Other crack was

recovered from a kitchen cabinet. ( Id. at 97). Additional crack

was found in the middle bedroom closet. Still more crack was found

beneath the chest of drawers and television set. ( I d

. at 100-103).

Also found beneath this chest of drawers was $7,900 in cash.

( Id. at 102-3, Vol. 6 at 108). The money was found inside a

grocery bag along with a peach and a bag of fruit. ( I d. at 108-9).

Allen testified, however, that he always kept his money in the

refrigerator, and that he used the chest of drawers where the money

was found exclusively to store his dope. (R., Vol. 5 at 49-50).

Finally, Agents seized a .38 caliber revolver from beneath the

mattress in the bedroom. ( I d. at 101-2). Allen testified that he

used the revolver to protect his drugs and his household, and that3 (1) conspiring to knowingly and intentionally possess

cocaine base with the intent to distribute (21 U.S.C. § 846);

(2) knowingly and intentionally possessing approx. 750

grams cocaine base with the intent to distribute (21 U.S.C. §

841(a)(1));

(3) knowingly using and carrying a firearm in

connection with a drug trafficking crime (18 U.S.C. § 924(c)(1)).

4 he took the gun with him when he went to sell drugs in the Desire

Housing Project. ( Id. at 45). Allen testified that when he left

the house that morning to get his hair done, the .38 revolver was

sitting on top of the bedroom dresser. ( Id. at 46, 80).

Prior to her arrest, MADISON gave a statement to the agents.

She stated that she knew that Allen was dealing drugs, and that she

always felt that there were drugs in the house. She also told

agents that Allen is into guns and violence. ( I d. at 119-20).

Agents asked MADISON what her part in the drug dealing was, and

MADISON replied that her job was to spend the proceeds of the drug

trafficking. (R., Vol. 6 at 122).

MADISON was charged in three counts 3 of a six co unt

indictment. Allen was charged in all six counts and, subsequently,

made a plea agreement with the government on the first three counts

in exchange for his testimony against MADISON. At her trial, the

jury found MADISON gu ilty on all three counts with which she was

charged based on testimony from 11 government witnesses, including

Earnest Allen, her co-conspirator.

ANALYSIS

A. Sufficiency of Evidence to Support the Conviction5

The first matter before the court on appeal is whether the

evidence supp orting MADISON's convictions was so meager that

upholding her conviction would result in a manifest miscarriage of

justice. MADISON contends that the incriminating testimony of her

co-conspi rator, Ernest Allen, was inherently unbelievable on its

face since Allen had entered into a plea agreement with the

government. The district court disagreed and this Court affirms.

See Wilkerson v. United States

, 591 F.2d 1046 (5th Cir. 1979),

rehearing denied , 595 F.2d 1221 (1979).

In reviewing a verdict challenged on the sufficiency of the

evidence, this Court views the evidence, whether direct or

circumstantial, and all reasonable inferences drawn f rom the

evidence, in the light most favor able to the jury's verdict.

United States v. Pigrum

, 922 F.2d 249, 253 (5th Cir.), cert.

denied

, 111 S.Ct. 20 64 (1991). In this light, the Court must

determine whether "a rational trier of fact could have found that

t he evidence established the essential elements of the offense

beyond a reasonable doubt." U nited States v. Carter

, 953 F.2d

1449, 1454 (5th Cir.), cert. denied

, 11 2 S.ct. 2980 (1992). We

conclude in this case that the jury could have found, as they did,

that the evidence showed beyond a reasonable doubt that MADISON

conspired to possess with intent to distribute crack, that she did

possess with intent to distribute crack, and that she used and

carried a firearm during and in relation to these drug dealing

activities.

M ADISON testified that she did not know Ernest Allen was6

selling drugs. The jury must have disbelieved her claim in light

of the evidence that crack co caine was found all over the house.

There w as a plate of cocaine in the kitchen. Moreover, the

evidence strongly supported the jury's inference that MADISON hid

the cash and the .38 revolver after she witnessed the agents arrest

Ernest Allen. The drug proceeds were not seized from the

refrigerator where Allen had left them, but rather from under his

chest of drawers, where only he hid his dope. Moreover, the fruit

that was found with the money under the drawers supported the

inference that the money had been hurriedly moved from the

refrigerator. Similarly, Allen left the .38 revolver on his

dresser. But, by the time the agents searched the house, the gun

was under the mattress. Madison's actions in hiding the gun and

the money, her ongoing presence in the crack-filled apartment, as

well as her admission that her job was to spend t he drug money

suffice to support the jury's guilty verdicts.

It is well-established that plea agreements (such as Ernest

Allen's in this case) raise issues of credibility. United States

v. Puma

, 937 F.2d 151, 155 (5th Cir. 1991), cert. denied

, 112 S.Ct.

1165 (1992). However, since credibility issues are issues for the

jury, the Court will not invade the province of the jury to weigh

the credibility of the witnesses. U nited States v. Razo-Leora

, 961

F.2d 1140, 1145 (5th Cir. 1992); United States v. Causey

, 835 F.2d

1527, 1529 (5th Cir. 1988). Clearly, MADISON has not shown that

her convi ction resulted in a manifest miscarriage of justice or

that there was insufficient evidence and, therefore, this Court is7

of the opinion that her conviction should be affirmed.

B. Adequacy of Reasons for Downward Departure

The second matter before the court on appeal is a cross-appeal

by the UNITED STATES OF AMERICA. The issue raised is whether

MADISON's sentence must be vacated where the district court's

downward departure from the minimum guidelines sentence was based,

at least in part, upon patently invalid reasons, namely, MADISON's

age, her culpability relative to that of her co-defendant, and that

MADISON's criminal history category over-represented the

seriousness of her criminal past. The district court's disposition

toward leniency brings into focus whether the court may depart

below the statutory minimum of the sentencing range yielded by the

guideline calculations. We hold that the court may do so, provided

that appropriate and adequa te reasons for the departure are

assigned. 18 U.S.C. §§ 3553(c), 3742(e), (f). Enunciation of an

adequate explanation for departure from the sentencing guidelines

range is a threshold requirement mandated by statute.

In the appellate review of sentences, we examine factual

findings subject to the clearly erron eous rule, and accord great

deference to the trial judge's application of the sen tencing

guidelines. 18 U.S.C. § 3742(e); U nited Stat es v. Mejia-Orosco

,

867 F.2d 216 (5th Cir.), clarified

, 868 F.2d 807, cert. denied

, 109

S.Ct. 3257 (1989). We also review the district court's

interpretation of the Sentencing Guidelines de novo

. U nited States

v. Reyes-Ruiz , 868 F.2d 698, 701 (5th Cir. 1991). Applying these4 Prior to the April 22, 1992 sentencing, the probation

officer determined the base offense level to be 36 pursuant to

U.S.S.G. § 2D1.1(a)(3). (PSR at 6, par. 9). No adjustments were

recommended by probation and, therefore, the total offense level

was 36. ( Id. ). In determining MADISON's criminal history

category, the probation officer assessed MADISON one criminal

history point for her 1990 conviction for credit card fraud.

( Id. at 7-8, par. 29). Two points were assessed for MADISON's

1991 conviction for possession of stolen property and criminal

trespass. ( Id. at 8, par. 30). Two additional points were

assessed because MADISON committed her instant offense within two

years after being released from confinement on the 1991

conviction. ( Id. at 8, par. 31). The total of five criminal

history points placed MADISON in criminal history category III.

One additional conviction, and five different arrests were not

applied to her criminal history score. Accordingly, the minimum

guideline sentencing range was determined to be 235 to 293

months, not including the 60 month consecutive sentence mandated

by 18 U.S.C. § 924(c)(1). According to the PSR, there were no

aggravating or mitigating factors warranting a departure from the

sentencing range. ( Id. at 13, par. 63).

Neither party objected to the PSR's recommended findings of

fact, nor to its conclusions concerning the applicable guideline

range. (R., Vol. 1 at 26).

8 standard, we find error for the following reason: MADISON should

have been sentenced to imprisonment for at least 235 months

pursuant to the minimum sentencing guideline or, the district court

should have articulat ed adequate reasons for its downward

departure.

Based on a t otal offense level of 36 and a criminal history

category of III, the guideline imprisonment range contained in the

PSR was from 235-293 months. 4 The district court adopted the

PSR's fi ndings and conclusions and, at the April 22, 1992

sentencing hearing, stated:

"Although the guideline calculations presented in the presentence report are correct, the court believes that a

downward departure is warranted for the following reasons.

The defendant's criminal history category over-represents the

seriousness of the defendant's criminal history.5 R., Vol. 4 at 9.

6 18 U.S.C. § 924(c)(1).

7 Incidentally, Allen was sentenced to 295 months in

F.C.I. and 60 months of supervised release.

8 In its "Statement of Reasons for Imposing Sentence,"

the district court apparently abandoned this reason. (R., Vol. 1

at 27). Since this statement was not included in the reasons for

sentence entered into the record, we consider it as superfluous

verbiage.

9 Considering the facts of this case, she is less culpable than

her co-defendant, Ernest Allen. A longer period of

incarceration would be counterproductive in view of her age." 5

Based on these reasons, the district court sentenced MADISON

to two concurrent terms of 120 months imprisonment as to Counts One

and Two, and to a mandatory consecutive term of 60 months

imprisonment as to Count Three ( Id. at 8-9) 6 ; amounting to a

downward departure of 1 15 months below the minimum guideline

sentencing range as calculated by the PSR. 7

1. Defendant's Age

One of the district court's stated reasons for departing from

the Sentencing Guidelines was that the longer Guidelines sentence

"would be counterproductive in view of her age." 8 (R., Vol. 4 at

9). The Sentencing Commission, however, gave "careful

consideration to the age of the offender as a mitigating factor in

sentencing, [in U.S.S.G. § 5H1.1]." U nited States v. White

, 945

F.2d 100, 102 (5th Cir. 1991). The Commission "has therefore,

normally elimin ated age as a mitigating sentencing factor." I d.

Accordingly, "the circumstance of being young is not a permissible9 See also United States v. Fields , 906 F.2d 139, 142

(5th Cir.), cert. denied , 111 S.Ct. 200 (1990) (sentencing court

properly refused to impose a downward departure on the basis that

defendant was a "minor" participant); United States v. Velasquez

, 868 F.2d 714, 715 (5th Cir. 1989) (factual assessment of

defendant's lesser culpability gives sentencing court the

discretion to make a downward adjustment in levels); United

States v. Hewin , 877 F.2d 3, 4 (5th Cir. 1989) (U.S.S.G. §§

3B1.1-3B1.4 allows the sentencing court "to adjust a defendant's

offense level, in either direction, to accurately reflect the

defendant's culpability in the particular crime").

10 consideration under the guidelines." I d. (citing United States v.

Summers , 893 F.2d 63, 69 (4th Cir. 1990)). We conclude that this

was an invalid justification for a downward departure.

2. Relative Culpability of Co-Defendants

The district court also based its "departure" in part on its

determination that MADISON was a less culpable offender than Ernest

Allen. (R., Vol. 4 at 9, Vol. 1 at 27). Apparently, the district

court did not distinguish between the terms "adjustment" and

" departure." While both affect the length of a sentence,

"adjustments" vary the total offense level whereas "depart ures"

disregard the guideline sentences. Since "departures based on

culpability implicate U.S.S.G. § 3B1.2, which provides for an

adjustment to the offense level upon a finding of mi nimal

participation," we find tha t relative culpability is not an

appropriate justification for a downward departure. U nited States

v. Sellers

, 975 F.2d 149, 151 (5th Cir. 1992) (emphasis in

original). 9

The lower courts should not be allowed to "depart" from the11

guidelines for the same reasons that are expressly provided for as

"adjustments" in the guidelin es, otherwise the goal of uniformed

sentencing is defeated. Since the district court did not find that

MADISON was a minor or minimal participant within the meaning of

§3B1.1 and thereby adjust her offense level, it should not be

allowed to depart for that same reason.

3. Over-representation of MADISON's Criminal Past

Lastly, we find that the district court erred in finding that

MADISON's criminal history category over-represented her criminal

past, and incorrectly applied the guidelines in departing pursuant

to § 4A1.3 (policy statement).

MADISON already had three felony convictions by the time the

jury convicted her in the case. In 1984, she pleaded guilty to

theft and received a one year suspended sentence and two years

probation. (PSR at 7, par. 28). In 1990, charged with possession

of stolen property, credit card fraud, flight from an officer,

po ssession of marijuana, and battery, MADISON pleaded guilty to

credit card fraud and was sentenced to time served (PSR at 7, par.

29). In 1991, she was convicted of seventeen counts of possession

of stolen property and criminal trespass. She served a four month

sentence. (PSR at 8, par. 30).

The 1984 conviction was not counted against MADISON's criminal

history score. Also not counted were her five arrests between 198110 She was charged with battery, theft, and other

offenses. The charges were dropped. (PSR at 8-9, par. 32 -35,

37).

11 That warrant stemmed from MADISON's failure to appear

for arraignment on charges of grand theft, using a stolen credit

card, receiving stolen property, and forgery. (PSR at 9, par.

36).

12 and 1990. 10 Nor did the probation office consider the $10,000 Los

Angeles bench warrant outstan ding against MADISON at the time of

her arrest for the instant offense. 11

Section 4A1.3 of the Guidelines, a policy statement, permits

downward departures when "a defendant's criminal history category

significantly over-represents the seriousness" of her criminal

history. As an example of circumstances in which such a departure

might be appropriate, the Sentencing Commission suggests "the case

of a defendant with two minor misdemeanor convictions close to ten

years prior to the instant offense and no other evidence of prior

criminal behavior in the intervening period." U.S.S.G. § 4A1.3

(policy statement).

MADISON was clearly an inappropriate candidate for application

of § 4A1.3. The many criminal offenses with which she was charged

a nd of which she was convicted were all of a serious nature.

MADISON had exhibited a pattern of criminal activity leading right

up to the instant offense. In fact, she was placed in category III

instead of category II becaus e she committed the instant offense

within a short period after being released from her most recent

prison sentence. The sentencing court's application of § 4A1.3 to

MADISON was clearly the result of an incorrect application of the13

Sentencing Guidelines.

Having considered the briefs, oral arguments, and pertinent

parts of the recor d, and reviewing assignments of error under

controlling standards of review, we find that sufficient evidence

supported MADISON's convictions and that no manifest miscarriage of

justice resulted. We, therefore, AFFIRM the conviction.

We also find that the district court incorrectly applied the

sentencing guidelines by not basing its departu re on acceptable

reasons. We, therefore, VACATE the sentence and REMAND for

resentencing within the Sentencing Guidelines pursuant to Williams

v. United States

, 112 S.Ct. 1112 (1992), or for elaboration of

approp riate and adequate reasons for another downward departure

placed on the record.

Affirmed in part and the sentence is vacated and the matter

remanded for resentencing.