IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-30649

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

RONALD KING, also known as Big

Defendant-Appellant

Appeal from the United States District Court for the

Western District of Louisiana

Before DAVIS, SMITH and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

Ronald King appeals his jury trial conviction for one count of conspiracy

to possess cocaine with the intent to distribute and one count of conspiracy to

launder money. He also appeals the sentence imposed. We affirm.

I.

The Government charged King with conspiracy to possess with the intent

to distribute five or more kilograms of cocaine, 21 U.S.C. §§ 841(a)(1), 846, and

conspiracy to commit money laundering, 18 U.S.C. § 1956(a), (h). The

Government also soughtforfeiture of property King allegedly derived from these

conspiracies. See 21 U.S.C. § 853. At trial, the Government established King’s

involvement in a cocaine distribution conspiracy by eliciting witness testimony

United States Court of Appeals

Fifth Circuit

F I L E D

August 26, 2008

Charles R. Fulbruge III

Clerk
No. 07-30649

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and introducing recordings of conversations between two of King’s alleged coconspirators. Regarding the money laundering conspiracy charge, the

Government elicited testimony from several witnesses and introduced recordings

of conversations between King and his wife concerning the use of a vehicle that

was allegedly purchased with the proceeds of illegal drug activity.

King objected to admission ofthe recorded conversations. He claimed that

the Confrontation Clause, U.S. CONST. amend. VI, barred admission of

recordings of conversations between his alleged co-conspirators, and that the

marital privilege barred admission of recordings of his conversations with his

wife. The district court admitted the recordings and the jury convicted King on

both conspiracy counts. At sentencing, the district court calculated King’s

Sentencing Guidelines range to be 360 months to life on the cocaine conspiracy

count. After stating that (1) he understood that the Guidelines are not

mandatory, (2) he could give a non-Guidelines sentence, (3) he had considered

the 18 U.S.C. § 3553(a) factors, and (4) that he found no need to deviate from the

Guidelines, the court imposed a sentence of 400 months on the cocaine

conspiracy count and a concurrent sentence of 240 months on the money

laundering conspiracy count. The court also ordered forfeiture of cash, guns, and

real property. King did not object to the sentence imposed, but timely filed a

notice of appeal.

II.

King argues on appeal that the district court committed a procedural

sentencing error by presuming that a sentence within the applicable Guidelines

range was reasonable. Because King did not preserve this argument by raising

it below, review is for plain error. See United States v. Sanchez, 527 F.3d 463,

464 (5th Cir. 2008). To show plain error, King must establish that “there is (1)

error, (2) that is plain, and (3) that affects substantial rights.” Id. (quotation

marks omitted). “If all three conditions are met an appellate court may then
No. 07-30649

1 This presumption should be distinguished from the presumption of reasonableness

that Guidelines sentences enjoy on appeal in this Circuit. See United States v. Alonzo, 435 F.3d

551, 554 (5th Cir. 2006). This appellate presumption has been expressly authorized by the

Supreme Court. See Rita,127 S. Ct. at 2462-63; Gall, 128 S. Ct. at 597 (“If the sentence is

within the Guidelines range, the appellate court may, but is not required to, apply a

presumption of reasonableness.”).

3

exercise its discretion to notice a forfeited error but only if (4) the error seriously

affects the fairness, integrity, or public reputation of judicial proceedings.”

United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005) (quotation marks

omitted).

King correctly points out that district courts may not rely on a

presumption that a properly calculated Guidelines sentence is reasonable. See

Rita v. United States, 127 S. Ct. 2456, 2458 (2007) (“[T]he sentencing court does

not enjoy the benefit of a legal presumption that the Guidelines sentence should

apply.”); see also Gall v. United States, 128 S. Ct. 586, 596-97 (2007) (“[District

courts] may not presume that the Guidelines range is reasonable.”).1 The issue

is whether the district court applied such a presumption. At King’s sentencing

hearing, the court stated:

The Court recognizes that the guidelines in this instance pursuant

to the Booker decision are advisory and that they are not binding

upon the Court. The Court also is aware of the potential for giving

a non-guideline sentence under Title 18, Section 3553(a) of the

United States Code. I have taken into account not only the correctly

calculated guidelines, but also the sentencing factors embodied in

Section 3553(a) and find that there is no need to deviate from the

calculations contained in the United States Sentencing Guidelines.

We find no error in this statement. The court did not expressly apply a

presumption that a Guidelines sentence was reasonable. Cf. United States v.

Wilms, 495 F.3d 277, 281 (6th Cir. 2007) (vacating after a district court required

the defendant to “‘overcome the presumption of reasonableness with respect to

the sentencing guidelines’”). Further, the district court did not require the
No. 07-30649

2 We note that King has not challenged the substantive reasonableness of his sentence.

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defendant to prove “extraordinary circumstances” before imposing a nonGuidelines sentence, which we have observed is akin to applying a presumption

of reasonableness. See United States v. Carbajal-Alvarado, No. 07-40597, 2008

WL 1881458, at *1 (5th Cir. April 29, 2008). Additionally, it was appropriate for

the district court to refer to the applicable Guidelines range when determining

the appropriate sentence. As we have previously recognized, statements by a

sentencing court indicating that a Guidelines sentence is “appropriate” or that

there is no reason not to apply a Guidelines sentence, are permissible. See

United States v. Cisneros-Gutierrez, 517 F.3d 751, 766 (5th Cir. 2008); United

States v. Roberts, No. 06-30868, 2008 WL 749533, at *1-*2 (5th Cir. Mar. 21,

2008) (finding no error when the district court stated that there is “no reason to

deviate from . . . [the Guidelines]”).

Lastly, even if King could establish error on this point, he has not shown

that the error affected his substantial rights under the plain error standard. See

United States v. Holmes, 406 F.3d 337, 365 (5th Cir. 2005) (requiring the

defendant to show “a reasonable probability that, but for the error claimed, the

result of the proceeding would have been different.” (quotation marks and

brackets omitted)).2

King next challenges the district court’s ruling allowing the Government

to introduce statements made by King’s alleged co-conspirators. King argues

that admission of these out-of-court statements violated the Confrontation

Clause as interpreted by Crawford v. Washington, 541 U.S. 36 (2004). However,

Crawford only bars out-of-court statements that are testimonial. Id. at 68.

Statements made between co-conspirators in furtherance of a conspiracy are not

testimonial. Id. at 56 (commenting that “statements in furtherance of a

conspiracy” are not testimonial); United States v. Robinson, 367 F.3d 278, 292
No. 07-30649

3 We decline King’s invitation to hold that these statements are testimonial because

they were “presented by the government for their testimonial value.” Crawford’s emphasis

clearly is on whether the statement was “testimonial” at the time it was made. See 541 U.S.

at 51-52.

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n.20 (5th Cir. 2004); see United States v. Holmes, 406 F.3d 337, 348 & n.16 (5th

Cir. 2005) (“Statements made by a co-conspirator during the course and in

furtherance of a conspiracy are by their nature generally nontestimonial and

thus are routinely admitted against an accused despite the absence of an

opportunity for cross-examination.”). Because the statements atissue here were

made by co-conspirators in the furtherance of a conspiracy, they do not fall

within the ambit of Crawford’s protection and the district court did not err in

admitting them.3

Lastly, we find no reversible error in the district court’s decision to admit

transcripts oftape-recorded conversations between King and his wife. Although

this Court recognizes a privilege “protecting confidential communications

between spouses,” United States v. Brown, 12 F.3d 52, 54 n.8 (5th Cir. 1994),

“conversations between husband and wife about crimes in which they are jointly

participating when the conversations occur” are not privileged. United States v.

Mendoza, 574 F.2d 1373, 1381 (5th Cir. 1978). The district court held that the

“joint participation” exception applied in this case because the conversations at

issue involved the “potential criminal activity of hiding assets” or “concealing

[assets] from [King’s] ownership.” Based on our review ofthe record, we conclude

that the court did not abuse its discretion in finding this exception applicable.

See United States v. Hall, 500 F.3d 439, 443 (5th Cir. 2007) (“We review the

district court’s evidentiary rulings for abuse of discretion.”).

III.

For the foregoing reasons, we AFFIRM King’s conviction and sentence.

AFFIRMED.