### REVI SED MARCH 26, 2014

I N THE UNI TED STATES COURT OF APPEALS

FOR THE FI F TH CI RCUI T

No. 12-40515

UNITED STATES OF AMERICA, Plaintiff - Appellee

v. KENDRICK TYSHAWN AKINS; RAFAEL CARRAE EDWARDS, also kn o w n as Fel; MARCO DEMON PERKINS; CLOVIS SHANTEZ LIGGINS, also known as Shantez, also known as Black; DONNELL LESHONE WALTERS, a lso known as Scooter; STACY LYNN GAGE; TOMMY DESHONE PERKINS, a lso known as Shawn, Defendants - Appellants

Appeals from the United States District Court for the Eastern District of Texas

Before HIGGINBOTHAM, OWEN, and HIGGINSON, Circuit Judges. PATRICK E. HIGGINBOTHAM, Circuit Judge: Kendrick Tyshawn Akins and six others (collectively, “Appellants”) were convicted and s entenced for conspiracy to possess with i ntent to distribute 5 kilograms or more of cocaine (“ p o w d e r cocaine”), 5 0 grams or more of cocaine base (“crack cocaine”), and 1,000 kilograms or more of marijuana, i n violation of 21 U.S.C. §§ 841(a), 846. They timely appealed. We affirm. U n i t e d S t a t e s C o u rt o f A p p e a ls F ift h C ir c u i t 

### F I L E D March 25, 2014 Ly le W . Cay ce Clerk Case: 12-40515 Document: 00512575405 Page: 1 Date Filed: 03/27/2014No. 12-40515 I. Background In 2008, the Drug Enforcement Administration (“DEA”) began investigating a d r u g c onspiracy involving the movement and sale of drugs, primarily p owder a nd crack cocaine, f rom M exico to Dallas, Texas, a nd then to Paris, Texas, a nd Hugo, Oklahoma. T h e invest i g a tion relied h eavily on approximately 10,000 wiretapped telephone calls, and rec o r d i ngs of m any of th e s e calls provided much of the e vidence at trial. Agents initially f ocused on Stacey Williams, suspected to be a large supplier of cocaine in the Dallas area. Williams introduced his M exico-based s upplier Francisco Trujillo to R afael “Fel” Carrae Edwards, describing E dwards as his cousin from Paris w ho b ought large quantities of powder c o c a i ne. Edwards was a rrested o n June 16, 2 009, at an apartment in Dallas that Edwards s hared with his girlfriend. Agents found crack cocaine in the bedroom where Edwards was sleeping, along with a semiautomatic pistol stuffed under the mattress on Edwards’ side of the bed. That

same day, law enforcement executed another s e arch warrant at Edwards’ residence in Desoto, Texas. Officers found ledgers that contained notations related to drug t rafficking. The ledgers also contained multiple references to Tommy D eshone “Shawn” Perkins and his best f riend Kendrick Tyshawn Akins. Shawn P erkins and co- defendants Marco Perkins a nd S hantez Liggins are brothers. Their mother lived on Campbell Street i n a house that served as a

“ h ome base” for the conspiracy in Paris, Texas. Shawn Perkins woul d t a k e cocaine purchased from Edwards in Dallas, convert it to crack c ocaine, and resell it in Paris with Marco P e r kins, Donnell “Scooter” Leshone Walters, and other members of the conspiracy. Wire intercepts between Edwards and Shawn Perkins recorded the t wo discussing money and cocaine sales, including one call in which Perkins descr ibes the quality of c rack c o caine h e received from Edwards. Agents a lso c onducted two controlled buys from Shawn Perkins: one involving 1 4

. 1 2 g r ams of powder cocaine, and another involving 9.8 grams of crack cocaine. Wiretapped calls also sugge sted that Marco Perkins w o rked to
2 Case: 12-40515 Document: 00512575405 Page: 2 Date Filed: 03/27/2014No. 12-40515

distribute drugs l argely at the direction of his brother Shawn Perkins. The other brother, Liggins, p rovided crack cocaine to Stacy Lynn Gage, a Hugo, Oklahoma, based di s trib u t o r who regularly bought c o caine for redistribution from the Parisbased conspiracy. In an indictment filed o n J une 11, 2009, a gr a nd jury charged Edwards, S h a w n Perkins, Akins, G age, Marco Perkins, Andre “ D re” Deshong D unkin s , Liggins, Walters, and ten others with conspiracy to manufacture, distribute, or possess w ith intent to distribute 5 kilograms or mo re of cocaine, 5 0 grams or

more of cocaine base, and 1000 kilograms or more of marijuana in violation of 21 U.S.C. §§ 841 and 846 (Count One). Eight defendants p l e a d ed guilty and the charges against one were dismissed. In a superceding indictment on August 19, 2010, a gr a n d jury c harged the remaining nine defendants (the eight listed above plus E ladio Jose Leal) w ith the same conspiracy offense (Count O n e). Counts Two and Three charged Edwards with firearm offenses in connection with drug trafficking crimes in violation of 18 U.S.C. § 924(c)(1), and Count Four alleged the same against Shawn P erkins. Leal pleaded guilty to the conspiracy count on October 13, 2010. The case went to trial on October 25, 2010, a gai n s t t h e eight remaining defendants. Stacy Bellamy, a cooper a ting w itness f rom Paris, Texas, who pleaded guilty to conspiracy to posse s s w i t h t he intent to distribute crack cocaine, testified that he h ad knowledge of the crack-distribution industry in his hometown. Bellamy testified that Edwards d e livered four kilograms of powder cocaine t o Shawn P e rkins at Perkins’ m other’s house in P aris and that this happened “two or three times.” Bellamy also t estified that he knew Shawn Perkins a nd Akins to b e “best friends” and that Akins helped Shawn Perkins in the crack cocaine business. Bellamy claimed to have bought crack cocaine from Shawn Perkins b efore starting to buy it from Akins, and that h e r e g ularly bought nine ounces of crack from Akins on credit. Another cooperating witness who pleaded guilty to conspiring to sell crack cocaine, Trentargus Holt, claimed
3 Case: 12-40515 Document: 00512575405 Page: 3 Date Filed: 03/27/2014No. 12-40515

that at first he bought powder c ocaine from S hawn Perkins and Akins before buying and reselling crack from them. Hundreds of r ecordings of wiretapped phone calls between the coconspirators were introduced at t rial to support the testimony of Bellamy, Holt, and others. Although i n English, t h e c a lls made heavy u se of code w ords and vernacular a nd w ere often di f f i cult to p arse. T he Government called Secret Service Agent Darrell Lyons, one o f the lead inves t i g a t o rs of this drug distribution conspiracy, as a lay witness to t estify about the investigation. In the multiple times he w as recalled to the s tand, Lyons testified repeatedly about his understanding of the meanings of v arious code w ords used in recorded wiretapped conversations. He testified that the m eanings he ascribed to those words, generally an amount or typ e o f d r u g , were b ased on the knowledge he gained in the course of the investigation a s w e ll as his career experience. The Gove r nment also called a DEA Group Supervisor, Mark Styron, as an expert witness at trial. In a ddition to testifying about the role tha t firearms play in drug distribution organizations, Styron explained his understanding of the meanings o f various code words that he claimed w ere commonly used in the drug distribution business. At t he close of the Gove r n m e n t ’ s c a s e - i n - c h i e f, e a c h o f t h e d e f e n d a n t s moved f or a judgment of acquittal under Federal Rule of Criminal Procedure 29, and all renewed the motion a f t e r r e sting their case. The trial judge granted Perkins’ motion for j udgment of acquittal c o ncerning the firearm offense alleged in Count Four but denied all other motions. The jury f

ound all e ight defendants guilty of Count One o f the Superceding Indictment, the conspiracy cha r g e , on November 15, 2010. By special verdict, they attributed the following drug quantities to each defendant:

Edwards: 5 k i l o grams or m ore of cocaine, 50 grams or more of cocaine base, and less than 50 kilograms of marijuana;

4 Case: 12-40515 Document: 00512575405 Page: 4 Date Filed: 03/27/2014No. 12-40515 Shawn Perkins: 5 kilograms or more of cocaine, l e ss than 5 0 grams but more than 5 grams o f cocaine base, and less than 5 0 kilograms of marijuana;
Akins: 5 kilograms or more of cocaine, 50 grams or m ore o f cocaine base, and less than 50 kilograms of marijuana; Gage: less than 500 gram s o f cocaine and 50 grams or more of cocaine base;
Marco Perki n s : l e ss than 500 grams of cocaine and 50 grams or more of cocaine base;
Dunkins: less than 500 g r a ms o f c ocaine and less than 5 grams of cocaine base; Liggins: 50 grams or more of cocaine base; Walters: 50 grams or more of cocaine base.

The jury found Edwards no t g u i l t y of the two firearms offenses (Counts Two and Three). The district court s entenced the defendants t o the following prison terms for their conviction s o n t h e conspiracy charge: Edwards, 360 m onths; Shawn Perkins, 270 months; Akins, life imprisonment; Marco P e rkins, 180 months; Gage, 360 mon t hs; Liggins, life imprisonment; Walters, 360 months; and Dunkins, 33 months. All of the defendants that went to trial, except Dunkins, now appeal. II. Testimony about the Meaning of Drug Slang This Court reviews preserved challenges t o rulings on the admission of lay and expert testimony for abuse of discretion, subject t o harmless error analysis. 1 We review forfeited evidentiary objections only for plain error. 2

1 U ni ted Sta tes v . El

- M

ez a i n , 664 F

. 3d 467, 511–12 ( 5th Cir. 2011)

.
2 U ni ted Sta tes v . Perez

- Sol i s , 709 F. 3d 453, 462 ( 5th Cir. 2013)

. 5 Case: 12-40515 Document: 00512575405 Page: 5 Date Filed: 03/27/2014No. 12-40515

A. Testimony of Darrel Lyons Edwar d s , Akins, S h awn Perkins, and Marco Perkins challenge the district court’s denial of their objection under Federal R u l e of Evidence 701 to the lay testimony of Secret Service Agent Darrell Lyons concerning the meaning of code words used by th e c onspirators on wiretapped recordings. B ecause this objection

was preserved at t rial , a t l e a s t b y counsel for some a ppellants, we review for abuse of discretion, subject to harmless error analysis. L y o ns, the lead i nvestigator of the conspiracy, testified as a lay witnes s about his u n d e r s t anding of the meaning of code words recorded in wiretapped conversations. C o u nsel objected on various grounds at trial, including that Lyons w as testi f

ying to a n ultimate fact i s sue, that he was not qualified as an expert, and that defense counsel had not been given advance notice that he would be testifying as an expert. The dist r i c t court sustained the objection on the ground that the Government had not provided d efense counsel with proper notice to qualify Lyons as an e xpert, and p rohibited Lyons from testifying on the meaning of drug slang because it required specialized knowledge. The follo w i n g d ay when Lyons was recalled, defense counsel renewed their objection to Lyons’ continued testimony about how he interpreted coded words

on wiretapped calls. The court clarified that as a lay w itness under Fed. R. Evid. 701, Lyons co u l d testify about his understanding of the meaning of coded conversations if his testi m ony was rationally based on Lyons’ own perception–here, his reading of the wiretap transcripts a nd involvement in this particular inves t i g ation–and not on specialized knowledge from his broader experience. Counsel’s r epeated obj e c ti o n s t o Lyo n s ’ i nt e rp r e t ations of code words

on the recordings were o verrul e d on the grounds th at the interpretation was based on knowledge gathered from t h e i n v e s t igation of this case. Lyons proceeded to give extensive testimony about what coded conversations “mean[t] to [him]” o r what h e “believed” the speakers were saying, and confirmed in

6 Case: 12-40515 Document: 00512575405 Page: 6 Date Filed: 03/27/2014No. 12-40515

response to questioning that his understanding of the code words was based on his investigation of this case. On appeal, Edwards, Akins, Marco Perkins, a nd Shawn Perkins urge that the district court erroneously allowed Lyons t o testify a s a n expert o n this drug jargon despite the court’s earlier i nstruction that Lyons could testify o n l y as a lay witness. Although we qu e s ti o n th at th e d e m arc ati o n b e tw e e n drug slang knowledge based on Lyons’ expertise and that based on his investigation of this conspiracy could have been as clean as Lyons’ proffered justifications suggested, the district court did not abuse its discretion when it admitted th e t e s t i mony. In United States v. McMillan , 3this Court addressed the argument appellants raise here. In that case, appellants a rgued that t h e t r ial c ourt “violated its role as gatekeeper for expert evidence by allowing three fact witnesses

. . . to give opinions based on Louisiana’s statutory accounting rules.” 4This Court denied appellants’ claim, holding that the witnesses’ testimony properly was confined to the conclusions and observations the witnesses gathered from t heir investigation in the case at issue. 5 “A witness who provides only lay t estimony may give limited o p inions that are based on the witness’ perception and that are helpful in u nderstanding the testimony or in determining a fact in issue, but the witness may not opine based on scientific, technical, or other specialized knowledge.” 6 Although the witnesses defined certain legal terms i n the course of their testimony, they p rovided factual information about th e circ u m s t a n c es of the case, their observations, and the c onclusions they reached. “To the extent that some of the witnesse s ’ testimony may have implicated specialized

3 600 F. 3d434 ( 5th Cir. 2010)

.

4 Id. at 455.

5 Id. at 456.

6 Id. 7 Case: 12-40515 Document: 00512575405 Page: 7 Date Filed: 03/27/2014No. 12-40515

knowledge by d efining c ertain accounting terms,” this Court concluded, “the error in a llowing the testimony, if any, was harmless because in the context of the entire trial [there w as] n o r e a s o n a ble b asis t o find an effect o n the jury’s verdict.” 7 This Court has recognized that in the context of drug c o nspiracies, “[d]rug traffickers’ j argon is a specialized body of knowledge, familiar only to those wise in the ways of the drug trade, and therefore a fit subject for expert testimony.” 8 But we h ave not limited drug slang testimony t o experts in a ll c a ses. R ather, we have recognized that testimony about the meaning of drug code words can be within the prope r a m b i t of a lay witness with extensive involvement in the underlying investigation. In United States v. Miranda , 9 the appellant

m a intained that an FBI agent, who had not been d e signated as an expert witness, testified about the meanings of various code words heard on intercepted phone calls and thereby “crossed the line” f rom lay t o expert o pinion testimony. In r e jecting that argument under the facts presented there, we held tha t t he agent’s testimony was p ermissible under Fed. R. Evid. 7 01 because the agent’s “extensive p articipation in the investigation of this conspiracy, including survei l l a n c e . . . and the monitoring and translating of intercepted t e lephone conversations, allowed him to form opinions concerning the m eaning of certain code words u s e d in this drug ring b ased o n his personal perceptions.” 1 0 Similarly, in Uni t e d States v. El-Mezain , 1 1 we acknowledged that some of the facts presented by testifying agents would n o t b e k n o wn to an average lay

7 Id. at 457.

8 U ni ted S ta tes v . G riff

i th , 118 F. 3d 318, 321 ( 5th Cir. 1997) (f ind ing no error in a d rug inves tigator’s tes tim ony on her “exp ertis e” in d rug jargon w here the court and p arties treated the w itnes s “in s ubs tance as an exp ert” even though the court failed form ally to qualif y her)

.
9 248 F. 3d434 ( 5th Cir. 2001)

.

1 0 Id. at 441.

1 1 664 F. 3dat 514. 8 Case: 12-40515 Document: 00512575405 Page: 8 Date Filed: 03/27/2014No. 12-40515

person. But we held that the district c o urt did not err by admitt i n g t he testimony because “the a g e n t s ’ opinions were limited to their personal
p erceptions from their investigation of this case.” 1 2 We noted that “ [b ] y explaining the m e a nings of terms as used in th e conversations and documents,

as well as the relationships betwee n the people they w e re investigating, the agents p rovided the jury with relevant factual information about the investigatio n . ” 13 And we clarified that “[t]estimony need not be excluded as improper lay opinion, even if some speci a l i z e d k n owledge on the part of the agents w as req u i red, if it was b ased on first-hand observations i n a specific investigation.” 1 4 W e c a n n ot say that the district court abused its discretion in a dmitting Lyons’ testimony. Lyons was extensively involved in th e investigation of the conspiracy. A s the lead investigator o n the case, Ly o ns had conducted surveillance on a number o f participants in the drug organization, and claimed to have reviewed every wiretapped phone call, reviewed every transcript offered into evidence, listened t o “every s e c o n d” of all relevant conversations, and spoken w ith a n umber of informants, co-conspirators, and the defenda n t s themselves. Lyons repeatedly explained how this investigation led him to deduce the meaning of drug code words. 1 5 The district c o urt was clear, to counsel

a n d to the jury, that “as long as [Lyons’] conclusions about what the language

m e a n s in the calls is based, in part, on his investigation and not root e d i n h i s

1 2 Id.

1 3 Id.

1 4 Id.

1 5 Lyons exp lained , f

or exam p le, that he know s “three zones ” is “three ounces ” becaus e he heard the s p eak ers on the intercep ted calls us e the term s interchangeably; that“k inf olk”
m eans the d ef

end ants f

rom Paris becaus e he inves tigated where the l i cens e p lates are regis tered ; that a “nine” ref erred to nine ounces of cocaine becaus e the q u o t e d p r i c e w as cons is tent w ith that am ount in the inves tigation here; and that “w e k now f rom the s earch and s eizure that [ a “bi”] is ap p roxim ately 4- 1/ 2 ounces of crack cocaine. ” 9 Case: 12-40515 Document: 00512575405 Page: 9 Date Filed: 03/27/2014No. 12-40515

e x p e rtise,” the court would allow the testimony. Although Lyons m a y h a v e drawn in part from h is law enforcement e x p erience, it was not an abuse of discretion for the district court to rule that Lyons’ c onclusions were largely based on first-hand observations in this specific investigation. We hold, furthermo r e , that any error of the district c o urt in admitting L y o n s’ testimony w as harmless. To the extent that certain portions of Lyons’ testimony at t imes crossed the line into drawing exclusively on his expertise, it

was cumulative o f other testimony and therefore harmless. 1 6 A careful review of the trial record convinces us that Lyons’ i n terpretations overwhelmingly were consistent wit h t h o s e provided by Styron and by Stacy Bellamy, a cooperating co-conspirator. Liggins, Walters, and Akins also challenge Lyons’ t estimony on the grounds that it was unqualified, that he t estified as a summary witness, and that he gave i mpermissible personal “impressions” of the intercepted

c o n v e r sations. We hold that the trial judge did not err in accepting L y o n s ’ personal observations of this inve s t i g a t i o n as the basis for his lay testimony. This Court has recognized that the meaning of dr ug code w o r d s c a n b e within the proper ambit of the t estimony of a l ay witness with exten s i v e involvement in the underlying investigation. 1 7 Nor is there merit in appellants’ contention that Lyons’ “dual role as case agent a n d u n q u alified expert/lay opinion witness” allowed him to serve as a summary witness that impermissibly relayed his “impressions” to the jury. We

are satisfied after a close review of the record that Lyons neither testified as a “summary witness” within the meaning of this Court’s precedent nor served to

16 See U ni ted Sta t es v . Grif

f i n , 324 F. 3d 330, 348 (5th Cir. 2003) ( “We fi n d a n y e r r o r that occurred from the d is trict court allow ing Stiner to tes tif y as to the m eaning of the law w as harm les s becaus e her tes tim ony w as cum ulative of other w itnes s es ’ tes tim ony. ”)

.

1 7 U ni ted Sta tes v . M

i ra nda , 248 F. 3d 434, 441 ( 5th Cir. 2001)

.

10 Case: 12-40515 Document: 00512575405 Page: 10 Date Filed: 03/27/2014No. 12-40515

“merely t ell the jury what result to reach.” In United States v. Nguyen , 1 8 we held that the district c ourt committed harmless error in allowing an investigator to provide a summary of her i nvestigation along with a summary chart, testify as to the ultimate issue o f the defendant’s mental state by referring to h er as a coconspirator, and premise her summary t e stimony on out-of-court statements that had not previously been presented t o the jury. While summary witnesses “may be appropriate for summarizing voluminous records, as contemplated by Rule 1 006,” they may not distill the j ury’s ultimate conclusions from a body of evidence. 1 9 Similarly, in United S tates v. Fullwood , 2 0 we held that “limits [] m ay well have been exce e d ed” (but did not rise to reversible plain error) where an agent, as a final rebuttal w itness before jury deliberation s , “simply recap[ped] substantial portions of the Government’s case-in-chief.” Lyons did not testify as a “summary w itness” w i thin the meaning of this precedent. Lyons’ interpretation of the wiretapped recordings came only after they were admitted into evidence and played before the jury. W e find n o point in the record at w h i ch Lyons recapped portions o f the Government’s case-inchief. T o the contrary, the G overnment called Lyons to the s tand fifteen times to d e scribe various aspec t s o f hi s i nv e s ti g ation, ensuring that his t estimony came only as the e vidence was presented. Lyons’ explanation that his interpretation of some drug code words w as based on what he learned from this investigation

as a whole is a virtue for hi s role as a lay witness testifying f rom personal perception, not a vice that equates to summarizing the G ove r n m e n t ’ s case-inchief within the meaning o f Nguyen and Fullwood. W e are satisfied that Lyons’ testimony neither drew c onclusions as to the s ignificance of particular evidence in the case, nor reached ultimate legal conclusio n s about the appellants’ guilt.

1 8 504 F. 3d561, 571 ( 5th Cir. 2007)

.

1 9 Id. at 572 ( quoting U ni ted Sta tes v . Ful l w ood , 342 F

. 3d409, 414 ( 5th C ir. 2003) )

.
2 0 342 F. 3d409, 413–14 ( 5th Cir. 2003)

. 11 Case: 12-40515 Document: 00512575405 Page: 11 Date Filed: 03/27/2014No. 12-40515

Rathe r , Lyons testified about his i nterpretation of coded drug slang conversations, as this Court has recognized he may do under the facts presented here. B. Testimony of Mark Styron Edwards, Akins, and M arco Perkins argue that the district court e rred by allowing DE A G r oup Supervisor Mark Styron to testify about the meaning of certain drug-code words as an expert witness under Fed. R. Evid. 702. The basis for counsel’s objection at trial to Styron’s testimony w a s unclear, but emphasized that Styron failed to q u a l i f y a s an expert on the subject of drug slang because Styron could point to no reliable sources that corroborate his interpretations of the slang words. The court overruled the objection and d e nied counsel’s motion to strike, finding that Styron’s twenty-three years of experience a s a DEA agent qualified him to testify to the meaning of dr ug slang. We review this preserved evidentiary objection for abuse of discretion 2 1 and find none. Importantly, appellants do not argue on appeal that Styron lacks inherent expert qualification to testify regarding drug slang. Nor do they argue that the initial Fed. R

. Crim. P. 16(a)(1)(G) disclosure that Styron would be designated

as an expert on drug s lang is inadequate, or irrelevant because it was n ot filed with the court. Rather, they point only to a Supplemental Expert Witness Notice that offered Styron as an expert on f irearms, and o mit reference to the initial notice that submitted Styron as an e xpert on drug slang, in arg u i n g t h at Styron’s testimony about drug slang w as outs i de his designated area of expertise. On April 19, 2013, the Government filed a motion t o supplement the record on appeal w ith an Expert Witness Notice that was sent t o defense counsel before trial, on October 18, 2010, but was not filed with the court at that time. This Court g r a n t e d t h e motion on May 1 , 2013. That Notice shows that the Government informed defense c o unsel, p ursuant t o Fed. R

. Crim. Pro.

2 1 Perez -Sol i s , 709 F. 3dat 462. 12 Case: 12-40515 Document: 00512575405 Page: 12 Date Filed: 03/27/2014No. 12-40515

16(a)(1)(G), that it would call Styron as a “ D r u g Distribution Expert” at trial, and s p e c i f

ied that “based o n [Group Supervisor] Styron’s e xperience and training,” he intended to testify on subjects including “slang or c ode terms [that]

are commonly used in the narcotics underworld t o h elp m aintain t h e s e c ret nature of the b usiness” a nd that he “i s f amiliar w ith some c ommonly used terms.” A s u mmary of S tyron’s qualifications was attached. Four days later, on October 22, 2010, the Government filed with the court, and provided to defense counsel, a “Supplemental 404B a n d Firearm Expert Witness Notice.” That Notice stated that the prosecution would call Sty r o n a s a n expert witness to testify regarding the role of guns i n drug distribut i o n , and that “Styron’s qualifications have been previously provided to you.” The trial record confirms that defense c ounsel received the initial notification that S tyron would provide expert testimony about slang used in narcotics distribution, as defense counsel quoted f rom it i n colloquy with the judge. But now on appeal, Edwards, Akins, and M arco Perkins mention only the “ Supplemental Expert Witness N otice” to argue that, in testifying about the meaning of drug slang terms, Styron testified outside of his designated firearms expertise. Fed. R. Crim. P. 16(a)(1)(G) of the provides tha t “ [a]t the defendant’s request, the government must give to the defendant a written summary of any testimony that the government i ntends to use unde r R u l e s 7 02, 703, or 705 of the Federal Rules of Evidence during its case-in-chief at trial.” R ule 16(a)(1)(G) contains n o explicit requirement that the notice be filed with the court at the time it is provided t o defense counsel in order f or a trial judge’s later designation of the witness as an expert on a topic to b e valid. Because we h ol d t h a t the district court committed n o e r r o r i n d esignating Styron as an expert on drug

s l a n g a nd defense counsel received proper notification, w e find no merit i n appellants’ claim. Finally, Edwards, Akins, Marco Perkins, and Walters contend t h a t t h e district court violated their Sixth A mendme n t Confrontation Clause rights by
13 Case: 12-40515 Document: 00512575405 Page: 13 Date Filed: 03/27/2014No. 12-40515

allowing Styron to testify about the basis for his expert opinions concerning the

m e aning o f certain drug code words. We review “Confrontation C l a u s e objections that were properly raised at trial [] de novo, subject to h armless error analysis.” 2 2 The appellants’ objection here is two-fold. First, they argue that because Styron’s drug-slang testimony was outside h is designated area of expertise, he essentially testified as both an expert (on guns) and a l ay/fact witness (on drug slang). T h ey claim this h ampered defense counsel’s ability to cross-examine Styron because a failed attempt to impeach Styron as an expert could backfire to e nhance his c redibility a s a fact witness. They point to a Second Circuit case, United States v. Dukagjini , 2 3 which raised concerns where t h e case agent who testified about the facts of a drug conspiracy investigation also provided expert testimony about the meaning of drug slang. There, the Second Circuit explained that while not categorically impermissible, the use of a case agent as both a fact and expert witness pr e s e n t s a heightened risk that the “expert testimony will stray from applying reliable methodology and convey to th e ju r y t h e w i tness’s ‘sweeping conclusions’ about appellants’ activities,” impinging on the role of the jury. 2 4But having concluded that S tyron’s t e s ti m o ny ab o u t dru g s l a ng was within his d e signation as a n expert, we find no indication in the record that Styron testified as both an expert and a fact witness, nor that counsel’s vigorous crossexamination w as hampered in any way. Unlike Lyons’ testimony, Styron’s testimony was gen e r a l i n formation about the drug trade and law enforcement learned over a long career, not fact testimony about this investigation. Indeed, defense counsel made this distinct i on clear for the jury multiple times during

2 2 U ni ted Sta tes v . Pryor , 483 F. 3d 309, 312 ( 5th Cir. 2007)

.
2 3 326 F. 3d45, 53–54 ( 2d Cir. 2003)

.
2 4 Id. at 54. 14 Case: 12-40515 Document: 00512575405 Page: 14 Date Filed: 03/27/2014No. 12-40515

cross-examination, emphasizing that Styron was explaining the general process of conducting a DEA investigation but n ot giv i n g s p ecific testimony about the defendants. On review of the record we do not find Styron to have served as a fact witness, and Styron clarified multiple times that his testimony was based

on his understanding of common terms used throughout the drug distribution industry–not from the f a c t s o f this investigation. T he concerns raised by the Second Circuit about a case agent serving dual roles as fact witness regarding the investigation and as expert w i t n e s s are thus inapplicable here, where Styron’s testimony properly was confined to his areas of expertise. Seco n d , appellants argue that to the e xtent Styron e xplained that his expertise on the meaning of drug slang terms is based, in part, o n what he heard other conspirators say in other drug investigations over the course of his career, he relayed impermissible hearsay to the jury in vio l a t i o n of the Confrontation Clause. Ap p e l l ants urge this Court to adopt the S econd Circuit’s reasoning in United States v. Mejia, 2 5 which found that expert t esti m o n y violated the Confrontation Clause where the expert simply transmitted testimonial hearsay statements–there, the custodial interrogations o f other ga ng members in the

same conspiracy–without “form[ing] his own opinions by applying his extensive experience and a reliable methodology to the inadmissible materials.” 2 6 But we hol d t hat Mejia is inapplicable to the n o n-testimonial bases of Styron’s e x p e r t o p inion presented here. Appellants point to no testimonial statements within the meanin g o f Crawford v. Washington , 2 7 or any impermissible hearsay at all, relayed by Styron’s testimony. When asked how he came to f

orm h is opinions about the interpretation of c oded dru g s l a ng, Styron explained that over the course of his career, he “listened to thousands of

2 5 545 F. 3d179 ( 2d Cir. 2008)

.
2 6 Id. at 197 ( quotation m ark s and citations om itted )

.
2 7 541 U

. S. 36 ( 2004)

. 15 Case: 12-40515 Document: 00512575405 Page: 15 Date Filed: 03/27/2014No. 12-40515

conversations on telephones and [was] part of h undr e d s o f investigations,” including talking to c o o perating individuals and other a gents in u n related investigations, and became familiar with the common drug j argon of many organizations. Fed. R. Evid. 703 a llows an e xpert witness to “base an opinion on facts or data in the case that the expert has been m ade a ware o f o r p e r sonally observed,” as well as inadmissible evidence “if experts in the particular f i e l d would reasonably rely on those kinds of facts or data in for m i n g an opinion on the subject[.]” Styron’s testimony suggests only that he based his opinion on the types of information that an agent with e xtensive experience i nvestigating drug conspiracies reasonably would rely, and we hold that no Confrontation Clause violation occurred here.

III. Sufficiency of the Drug Conspiracy Evidence Marco Perki n s , Gage, Liggins, Walters, and Akins challenge the sufficiency of the evidence to support their convictions f o r c o n spiracy under Count 1 of the indictment. Specifically, Mar c o P e r kins, Gage, Liggins, and Walters challeng e only the sufficiency of the e vidence concerning their involvement in the c on s p i r a cy; they do not challenge the jury’s drug-quantity d e t e r m i nation. Akins challenges the jury’s finding that he was a know i n g member of the conspiracy a n d also that he should be held responsible for five kilograms or m ore of powder cocaine, but he does n ot challenge the jury’s finding that he should be held responsible for 50 grams or more of crack cocaine. All of the d efendants m oved for a judgment of acq u ittal under Fed. R. Crim. P. 29 a t the close of the Government’s case-in-chief, and the court allowed them to adopt their earlier Rule 29 motion after resting. Because the defendants “moved for a judgment of acquittal both after the government’s case in chief and at the c lose of the t rial, we review a challenge to the sufficiency of the evidence de novo, reviewing the evidenc e i n the light most favorable t o the verdict and determining whether any r ational jury could have found guilt beyond a

16 Case: 12-40515 Document: 00512575405 Page: 16 Date Filed: 03/27/2014No. 12-40515

reasonable d oubt.” 2 8 “We d o not eva l u a t e the weight of the e vidence or the credibility of the witnesses.” 2 9 Appellants’ conspiracy convict i o n required p r oof, beyond a reasonable doubt, of the existence o f an agreement to manufacture, distribute, or possess with the intent t o manufacture or distribute cocai n e, crack, or marijuana, as well

as e ach appellant’s k nowledge of and voluntary participation in that agreement. 3 0 A “jury may in f e r a c o nspiracy agreement from circumstantial

e v i dence, and may r ely upon presence and association, along w ith o t h e r evidence, in finding that a conspiracy existed.” 3 1 A. Marco Perkins Although m uch of the Government’s pr o f f e r e d evidence with respect to Marco Perkins shows only that he had a fraternal relationship with Shawn Perkins, sufficient evidence supports the j ury’s finding that the relationship was

one between c o-cons p i r a t o r s as well. The jury heard s everal recorded wiretapped calls that support an inference th a t M a r c o P erkins w as part of a drug distribution b usiness, at leas t w ith his brother Shawn P erkins a nd with Ak i n s . O n a call between Shawn Perkins and Akins o n December 13, 20 0 8 , Akins said, “ I’m right at four now. I d on’t know what Marco and them did.” On another call between Shawn Perkins and Akins that same day, Akins said: I mean I’m like this, like 40, l ike 41. Marco and them, they got s omething they’ve been working today, so they’ve probably got l ike five or six h u n d r ed. Scooter, I mean, the four is part of the eight that Scoo t e r o w e me. He said just hit him and he’ll h ave i t

. . . Like I said, 41 with the eight t h a t Scooter o we and – and Marco and th em, shoot, they got like 2 0 o f them yards. So then I got like two flippers left . . . .

2 8 U ni ted Sta tes v . H

a le , 685 F. 3d 522, 543 ( 5th Cir. 2012)

.
2 9 U ni ted Sta tes v . Sol i s , 299 F. 3d 420, 445 ( 5th Cir. 2002)

.
3 0 See, e. g. , Perez

- Sol i s , 709 F. 3dat 461.

3 1 Id. 17 Case: 12-40515 Document: 00512575405 Page: 17 Date Filed: 03/27/2014No. 12-40515

The two mentioned M arco again on a call the following day, in which Akins said to Shawn Perkins, “How many – h ow much more Marco over there? Huh?,” and th en they talk about four or five yards. Two days later, on December 16, Shawn P erkins r eceived a text message f rom a n unknown person saying, “Yall need to fire marco I sware I need three y a rds aint seem him yet I been waiting

s i n c e th ree thirty just tell him to holla[.]” That s ame day, in a call be t w e e n Marco Perkins and h is b rother Shawn, M arco told Shawn, “I can’t got no access to n o h ard either,” and that “I got five little, JJ want one and Red want two, hell I might break them other two down.” The next day, Shawn asked Marco, “How much bread you got?” to which Marco responded, “Seven.” F r o m these and other similar calls, the j ury reasonably could infer that Marco Perkins w as actively involv e d i n a drug distribution conspiracy with Shawn Perkins, Kendrick Aki n s , a n d p erhaps others. There is no basis to disrupt the jury’s finding. B. Stacy Lynn Gage Gage argues that h e w a s a mere b uyer and s eller of drugs, not l i nked in

a conspiracy relationship to his co-defendants. “[W]hile i t i s t r ue that a buyer-seller relationship, without more, will not prove a conspiracy,

. . . [ o]ne becomes a member of a drug conspiracy if he knowingly participates in a plan t o distribute drugs, whether by buying, s elling or otherwise.” 3 2 T he evidence shows Gage purchased drugs from the Paris network regularly and in distribution quantities. U nder the facts presented in th e record h e r e , i t is reasonable f

or t h e j u r y t o i nfer a voluntary and knowing a greement between th e m to violate the narcotics laws. Gage, who lived in Hugo, Oklahoma, repeatedly purchased c ocaine in Paris, Texas, in quantities large enough for redistribution. On a wiretap phone recording between G age and Shawn Perkins

3 2 U ni t ed Sta tes v . D el

ga d o , 672 F. 3d 320, 333 ( 5th C ir. 2012) ( en banc) (em p has is om itted ) ( quoting Uni ted Sta tes v . M a sera tti , 1 F. 3d 330, 336 ( 5th Cir. 1993) )

. 18 Case: 12-40515 Document: 00512575405 Page: 18 Date Filed: 03/27/2014No. 12-40515

on December 10, 2008, G age complained that what Perkins sold him w as short, at only 78 grams i nste a d o f 1 26, b efore Gage c oncluded there was s omething wrong with his scale. The Government also presented a series o f text m essages between Shawn Pe r k i n s and a p hone subscribed to Angela Melton, Gage’s girlfriend, on December 15 to 21, 2008, discussing and coordinating a series of drug transactions in which G age agreed to purchase drugs from P erkins. Stacy Bellamy, a cooperating witness, testified that he s aw Liggins selling “nine to 13 ounces” o f crack cocaine to Gage. Another Paris c rack dealer and cooperating witness facing conspiracy c harges in another case, T e rrence Miles, also testified that he sold G a g e c r a c k cocaine weekly. Sufficient evidence supports Gage’s conviction here. C. Clovis Shantez Liggins Liggins urges that the evidence fails to show he was a part of, or even knew o f, a larger drug distribution conspiracy and at most only establishes that he t angentially assisted h is brother Shawn Perkins. Only a few of the hundreds of calls played for the jury invol v e L i ggins, but we hold that these reasonably give rise to an inference of his participation in the drug distribution conspiracy. On a wiretapped call on Novemb e r 26, 2008, Shawn Perkins directed Liggins to go over to [co-defendant Andre D unkins’s location] and get “that three hundred he o we me,” and Liggins agreed. Perkins t hen called Dunkins to t ell him that “that nigger, B lack, fixin’ come through there.” On December 1, 2008, Liggins told Shawn Perkins that “Little Earl” wanted a “ q u a r t e r” a nd that he “told them about 250,” to which P erkins replied, “Yeah, I’ll j ust give i t for 225 and you can go ahead and make that 25.” I n a wiretap conversation on January 9, 2009, Liggins asked Shawn Perkins: “Hey whatchu do with my work fool?” and P e r k i ns responded that h e had left it on the living room table. L ater th a t d a y

a female called Perkins from Perkins’ mother’s house on Campbell S treet, and P e r k i n s directs the female to a table for something and t old her t o “hide it somewhere real good.”
19 Case: 12-40515 Document: 00512575405 Page: 19 Date Filed: 03/27/2014No. 12-40515

Additionally, cooperating witness J ames Liggins testified that he bought cocai n e o r crack from Shantez Liggins most weeks, and that he had asked Shantez to sell h i m d r u g s on credit, but Shantez said James w o uld have to “speak to his br o t h e r t o see would that be all right.” Cooperating witness Terrence M i les, a Paris crack dealer, t estified that Shantez worked with “his brother, um, Marco a nd Shawn” in the crack business. T he jury’s inference from this evidence that Liggins was a knowing member o f the drug distribution conspiracy is not unreasonable. D. Donnell Leshone Walters The evidence also is sufficient to support Walters’ conspiracy conviction. A wiretapped phone call on December 13, 2008, captured Walters complaining to P e r k i n s t h at the crack cocaine he had gotten from Perkins was of lower quality than i n the past, and that this was causing problems w ith Walters’ customers. That same day, in a c all between Akins and Shawn Perkins, Akins complained that he was w aiting on Walters, also k nown as “ Scooter,” to pay him

some money he owed h im. Previously, on December 1, Shawn Perkins and Akins had a c all a ccounting f o r o utstanding dr ugs and debts, and mentioned that “Scooter still owe me the eight.” Stacy Bellamy, a cooperating witness, testified th at he w ould sell Walters “anywhere f

rom an ounce to two ounces of crack” once a week in the summer of 2007, a nd that this quantity was consistent with the buyer being a dealer. From t h is and other evidence presented at trial, the jury reasonably could c onclu d e that Walters was a k n o w i n g member of the drug distribution conspiracy here. E. Kendrick Tyshawn Akins Ak ins challenges the s ufficiency of the evidence supporting the j u r y ’ s find i n g both that h e was a knowing member of the conspiracy and that he is responsible for f

ive kilograms or more of powder cocaine. H e does not challenge the jury’s finding that he is responsible for 50 grams or more of crack cocaine.

20 Case: 12-40515 Document: 00512575405 Page: 20 Date Filed: 03/27/2014No. 12-40515

Evidence from wiretapped calls supports the jury’s determ i nation that Akins was a member of the c onspiracy. The calls are too numerous to list here. As an e xample, Akins and Shawn Perkins accounted for drugs and money on an intercepted call o n December 1, 2008. Akins a sked S hawn Perkins, “ How much of that work you got left?” and Perkins replied, “About almost three ounces. Two

ounces for sure. Something like that.” Perkins asked, “You want me to split that up? If you’re gonna come back Tuesday, y ou can p r obably just leave Marco

some or something.” Akins asked, “I’m saying do I need to do that other one?” and P erkins replied, “[Expletive] no, I don’t think there’s gonna be till Monday

or Tuesday.” I n another e xample, on December 9 , Perkins told E dwards that he

was “gonna send Kendrick [Akins]” over and di rected Edwards to “hand him two of mine.” S hortly b efore Akins returned with the drugs, he said, “he g ave me a biat though–I can’t really tell what yours is–yours looks like it may be a nine.” The record shows many similar calls, and sufficiently supports the jury’s conviction. Akins also argue s t h at the evidence does not support the j ury’s finding that he is responsible for five kilograms or more of powder c ocaine. The jury found Akins, along with his co-defendants, guilty o f Count 1 of the S uperseding Indictment, which charged a conspiracy to m anufacture or distribute or intent to manufacture or distribute 5 kilograms or more of cocaine, 50 grams or more of crack cocaine, and 1000 kilograms or more of marijuana. Then, pursuant to

a special verdict form, the jury w as instructed to “determine the q u a n t i ty of cocaine, cocaine b ase (crack) and/or marijuana attributable t o each defendant found guilty of C ount One.” The jury determined that Akins was responsible for five kilograms or more of cocaine , 5 0 g r a m s o r more o f crack, a nd less than 50 kilograms of marijuana. The Government’s burden at trial w as to p r ove th e e x i s tence of a conspiracy, Akin’s involvement in it, and the requisite drug quantity involved in

21 Case: 12-40515 Document: 00512575405 Page: 21 Date Filed: 03/27/2014No. 12-40515

the conspiracy b eyond a reasonable doubt. 3 3 This Court has explained that even post-Apprendi , 3 4 the burden d o e s n ot extend to the “individualized question of what drug quantity was attributable” to a particular defen d a n t a s a coconspirator. 3 5 The Government “need only allege and prove t o the jury the bare facts necessary to increase the statutory sentencing maximum for the conspiracy

as a whole

. ” 3 6 Of course, a “defendant will not necessarily b e held responsible for the full amount of drugs involved i n the c onsp i r a c y ,” but rather only “those amounts of drugs that he knew or reasonably could have known or b elieved were involved in the conspiracy,” considering “the co-conspirator’s role in the conspiracy, h is r elationship to the other c onspirators, a nd any other information with ‘sufficient indicia of reliability.’” 3 7 Here, the j ury determined that the c onspiracy as a whole involved more than five kilograms of powder cocaine, and confirmed via the special v erdict form that Akins is responsible f or this entire a mount as a member of the conspiracy. The substantial evidence s h o w ing Akins’ a ctive and knowing role in the conspiracy leaves u s no reason to disrupt this determination. That the evidence shows Akins’s direct dealings focused on crack cocaine 3 8 does n ot, in light of his substantial role in the conspiracy and his relationship t o the o t h e r co3 3 See U ni ted Sta tes v . Turner , 319 F. 3d716, 721 ( 5th Cir. 2003)

.
3 4 A p p rendi v . N

ew Jersey , 530 U

. S. 466 ( 2000)

.
3 5 See Turner , 319 F. 3d at 722.

3 6 Id. ( quoting D erm a n v . U ni ted Sta tes , 298 F. 3d 34, 42–43 ( 1s t Cir. 2002) )

.
3 7 U ni ted Sta tes v . Bri t o , 1 3 6 F

. 3d 397, 415 ( 5th Cir. 1998) ( quoting Uni ted Sta tes v . Pui g
- Inf a nte , 19 F. 3d 929, 942 (5th Cir. 1994) ).

3 8 Evid ence als o ind icated that Ak ins had at leas t s om e d irect d ealings in p ow der cocaine as p art of the d r u g d is tribution cons p iracy. Trentargus H olt, a cocaine d ealer and coop erating w itnes s , tes tif ied that he bou gh t h a l f an ounce to an ounce of p ow der cocaine a coup le of tim e p er w eek f rom Ak ins f

rom the early part of 2006 to that sum m er. 22 Case: 12-40515 Document: 00512575405 Page: 22 Date Filed: 03/27/2014No. 12-40515

conspirators, absolve h i m of responsibility for the conspiracy’s foreseeable distribution of powder cocaine. IV. Severance For the first time on appeal, Gage contends that he was deprived of a fair trial because he w as tried together with co-defendants a gainst w hom the evidence was m ore e xtensive. Fed. R. Crim. P. 12(b)(3)(D) r equires that a Rule 14 motion to s e v e r charges or defendants be raised before trial. Rule 12(e) goes

on t o explain that a p arty “waives any rule 12(b)(3) d efense, objection, or request not raised” b y the pretrial motions deadline set b y the c o u r t u n l e s s the court grants relief from the waiver for good cause. Our precedent is clear that “where

an appellant f

ai l e d to move to sever before trial as F ederal Rule of Criminal Procedure 12(b) requires, h e waive[s] h is severance argument on appeal.” 3 9 This Court has also held that where “appellants have failed to show a n y cause for failing to move f

or severance p rior to trial, we need not even address the merits of their argument.” 4 0 Gage neither moved for severance before t rial as Rule 12(b) requires, nor offers any cause for th e l ack of a timely motion. We must conclude that Gage waived his severance argument.

V. Denial of Motion for Continuance

3 9 U ni ted Sta tes v . Ca ntu- Ra m i r e z , 6 6 9 F. 3d 619, 624 ( 5th Cir. 2012) (citing U ni ted Sta tes v . Bernegger , 661 F. 3d 232, 236–37 ( 5th Cir. 2011) ( p er curiam ) )

.

4 0 U ni ted Sta tes v . M

a nn , 161 F. 3d 840, 862 ( 5th Cir. 1998)

. M ann goes on to exp lain that U ni t ed Sta tes v . Tol l i v er , 61 F

. 3d 1189, 1199 n. 6 ( 5th Cir. 1995) , vacated and rem and ed on other ground s , 516 U

. S. 1105 ( 1996) , notes that “f ailure to m ove for s everance p rior to trial
m ight leave room f

or review und er the p lain error s tand ard of review , ” and that “other cas es have review ed the d is trict court’s f ailure to s ever f

or p lain error w here there w as no objection, ” inclu d i n g U

ni t ed Sta tes v . M

i sher , 99 F. 3d 664, 669 ( 5th Cir. 1996) , and Uni ted Sta tes v . Ca rreon , 11 F. 3d 1225, 1240 ( 5th C ir. 1994)

. But even if the Court w ere to ap p ly plain error review here, G age’s claim –that the m ore extens ive evid ence again s t h i s c o- d ef end ants p rejud iced the jury agains t him –f alls s hort of s how ing that the error w as “clear or obvious ” and that it “s er i o u s l y a f f ect[ ed] the f

airnes s, integrity, or p ublic rep utation” of his trial. M i sher , 99 F. 3d at 669. 23 Case: 12-40515 Document: 00512575405 Page: 23 Date Filed: 03/27/2014No. 12-40515

Akins argues that he was p r ejudiced by the district court’s denial o f a motion f or continuance because the complexity o f the case and th e short time his counsel h ad in which to prep a r e for trial affected his ability to prepare an adequate d efense. “This court will reverse a district court’s decision denying a defendant’s m otion f

or continuance only when the district court has abused its d i scretion and the defendant can establish that he h as suffered serio u s prejudice.” 4 1 Mr. D’Angelo, Akins’ current c ounsel, was a ppointed on September 9, 2010, which was 46 days before the start of the trial. Akins had two attorneys before M r. D’Angelo w as appointed; one w as permitted to withdraw due to a conflict of interest, and the one before h im was discharged by the c ourt on March 2, 2010, on Akins’ request. Mr. D’Angelo moved for a c ontinuance on September 27, 2 010, which the Government o pposed d ue to the age of the case and t h e number of in-custody defendants awaiting trial. In its order of Sept e m b er 28, 2 010, d e nying Akins’ motion to continue, the district court stated that its “calendar is such that any

c o n t i n u a n ce would require resetting the trial s ometime in mid-2011.” On the first day of trial, M r. D’Angelo reurged his motion to continue. The c ourt denied it for the same reasons stated in its order. The c ourt did, h owever, grant Mr. D’Angelo’s motion to adopt certain pre-trial motions filed by other defendants, in recognition that Mr. D’Angelo had been “hurrying to get up to speed.” Akins argues that because Mr. D’Angelo w a s ap p o i nt e d o nly 46 days before trial in a complex cas e a n d h ad difficulty obtaining a nd reviewing the audio discovery in this c ase, he did n ot have adequate time to prepare for trial. When

a party complains of inadequate preparation time, th is Court considers “(1) the amount of preparation time available, (2) whether the defendant took a dvantage of the time available, (3) the l ikelihood of p rejudice from a denial, (4) the

4 1 U ni ted Sta tes v . Ca stro , 15 F. 3d 417, 432 ( 5th Cir. 1994)

. 24 Case: 12-40515 Document: 00512575405 Page: 24 Date Filed: 03/27/2014No. 12-40515

availab i lity of discovery from the prosecution, and (5) the complexity of the case.” 4 2 Here, the case was designated as co m p l e x, and counsel’s preparation time was limited. But “[t]he grant or denial of a continuance i s within the sound discretion of the t rial court,” 4 3 and we find n o abuse of that discretion here. Mr. D’Angelo had the benefit of b oth co-defendants with independent counsel and of the G overnment, which cooperated in providing discovery. Moreover, M r. D’Angelo actively represented his client at trial and vigorously cross-examined the w itnesses against him. We hold that these circumstances do not rise to the level of serious prejud ice that would demonstrate the di strict court abused its discretion. 4 4 VI. Sentencing Issues A. Edwards’ Sentencing Enhancements Edwards argues that the dis t r i c t c ourt erred by assigning him an aggravating-role sentencing enhancement under U.S. S .G. § 3B1.1(b) based on its finding that Edwards w as a manager or s up e r v i s o r i n the conspiracy. We review a dist r i c t court’s factual finding that a defendant was a manager or supervisor u nder U.S.S

. G

. § 3B1.1(b) for clear error 4 5 and “ d eem the district

c o u r t’s factual findings clearly erroneous only if, based on th e entire evid e n c e , [ w e a re] left w ith the definite and firm conviction that a m istake h a s b e e n

4 2 U ni ted Sta tes v . Lew i s , 476 F

. 3d 369, 387 ( 5th Cir. 2007)

.

4 3 U ni ted Sta tes v . Kel l

y , 973 F. 2d1145, 1147 (5th Cir. 1992)

.

44 See Lew i s , 476 F. 3d at 387 ( no abus e of d is cretion in a com plex ca s e w i t h t e n d ef end ants and volum inous dis covery w here couns el w as ap poin t e d ten days bef ore trial becaus e, although the length of tim e w as “e x c e s s i v e l y s hort, ” couns el p rovid ed ef f ective rep res entation at trial and benef itted f rom the argum ents of co- def end ant’s couns el)

.

4 5 U ni ted Sta tes v . Rose , 449 F. 3d 627, 633 ( 5th Cir. 2006)

. 25 Case: 12-40515 Document: 00512575405 Page: 25 Date Filed: 03/27/2014No. 12-40515

committed.” 4 6 “A factual finding i s not clearly e rroneous if it is plausible in light of the record read as a whole.” 4 7 Edwards was s entenced to 360 months i mprisonment for his conviction on the conspiracy count. S e ction 3B1.1(b) authorizes a three-level increase to the defendant’s offense level if the “defendant was a manager or s upervisor (but not

an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive.” The commentary to that s ection notes that even if a defendant was not a manager o r s upervisor, the enhancement m ay be warran ted if the defendant “exercised management responsibility o ver the property, assets, or activities of a criminal organization.” 4 8 Although the presentence report (“PSR”) found no a ggravating or mitigating adjustments applied to Edwards’ role i n the conspiracy, at se n t e n c i ng th e G overnment objected to the absence of a l eadership-role adjustment under U .S.S.G. 3 B1.1(b) for what it claimed w as Edwards’ r ole in supervising Antwan Price, another coconspirator. We cannot say it was clear error for the district court to have applied this sentencing enhancement. The court note d t h at an intercepted call recorded Price asking, “What are we d oing these at, 25?,” Edwards responding, “What did he give y o u , 2 5 ? , ” Price responding, “Yes, he was trying to, b ut h e w as five short,” and Edwards saying that “Shawn needs a couple of hos.” Another phone call b e t w e e n Edwards and Price recorded E dwards telling P rice that “Trey is gonna slide through here and grab one o f those things. G i v e h im one of them deals.” The district court a lso identified several c onversations where Price and E d w ards discussed quantities and prices, and o ne in which Edwards t o l d a customer to take the money for a transaction to Price. In another, E dwards told

4 6 Id. ( quotation m ark s om itted )

.

4 7 Id.

4 8 U

. S. S. G. § 3B1. 1(b) n. 2. 26 Case: 12-40515 Document: 00512575405 Page: 26 Date Filed: 03/27/2014No. 12-40515

a customer that he ca n g e t drugs at Price’s apartment and the customer said, “All right. Well, l et [Price] know, ‘cause, you know, [Price], he don’t even want to give i t t o you unless you let him know,” to w h i c h E d w a r ds replied, “I’ll hit him, though.” Finally, the e vidence sh o w e d t w o calls in which E dwards and Price discussed remaining quantities of drugs and Edwards told Price to “Just hold that one. That one gone too.” The district court concluded from this evidence that “there does appear to b e evidence of planning a nd a degree of control and authority exercised b y Edwards over Price, where Price is reporting to Edwards how m uch Price has as far as drugs, and Edwards is instructing Price on wha t to do with the drugs.” We conclude that the district court did not commit cle a r e r r or i n applying the sentencing enhancement for a managerial or supervisor role on these facts. Edwards next co n tends that the district court erred by enhancing his sentence by two levels for firearm possession under U

. S.S.G. § 2D1.1(b)(1). The decision whether to i mpose this firearm enhancement is a factual determination that we review for clear error. 4 9 The district c ourt applied a two-level i ncrease to Edward s ’ Guidelines range p ursuant to U.S.S.G

. § 2 D 1 .1(b)(1) for possession of a firearm. That section p rovides f

or a two-level enhancement if a characteristic of the underlying offense is that a “ d a n g e r o us weapon (including a firearm) was possessed.” S p e c if i c ally , the increase related to a loaded .30 caliber semiautomatic p i s t o l th at

was seized from underneath the mattress w h e r e Edwards a nd his girlfriend slept at the girlfriend’s residence. Small amounts of cra c k ( 6 .3 grams), heroin (0.38 grams), and marijuana (4.5 grams) were a lso recovered during that search. Counts 2 and 3 of the Superceding Indictment charged Edwards with u sing or possessing a firearm in furtherance of a drug t rafficking crime in violation of 18 U.S.C. § 924(c)(1). The jury acquitted him on both firearms counts.

4 9 U ni ted Sta tes v . Cha v ez , 119 F. 3d 342, 348 ( 5th C ir. 1997)

. 27 Case: 12-40515 Document: 00512575405 Page: 27 Date Filed: 03/27/2014No. 12-40515

That the evidence did not r i s e to the level of showing Edwards actively employed the weapon in furtherance of the drug crime ( as per the jury’s verdict of acquittal on this charge) does not preclude the j udge’s finding that i t met the lower standard of U.S.S.G

. § 2 D 1 .1(b)(1). The application notes to 2D1.1(b)(1) direct that the enhancement “should b e a p plied if the weapon w a s present, unless it is clearly improbable that the weapon was connected with the offense,” to reflect “the increased da n g e r of violence when drug traffickers possess weapons.” 5 0 We f

ind n o e rror in the district court’s determination that, because the e vidence showed Edwards knew the weapon w as under the mattress on his side of the bed in a room where drugs w ere f ound and explained to his girlfriend how to use the w e a p o n , i t was not clearly improbable that it was c onnected to the drug offense. B. Gage’s Career Offender Enhancement We review a district court’s determination that a d efendant is a career offender under U.S.S.G. § 4B1.1 de novo . 5 1 G age contends th at the district court erred in applying a career-offender e nhancement un d e r U

. S.S.G. § 4 B1.1(a) because he argues that his t wo prior felony convictions were r elated and should have counted a s a single prior conviction for sentencing e nhancement purposes. A career-offender enhancement applies under U. S

. S

. G

. § 4B1.1(a) if, among other things, “the defendant has at least two prior felony convictions of either a crime o f violence o r a controlled substance offense.” The Guidelines instruct that “[p]rior sentences always a re counted separately if the sentences were imposed for offenses that were separated by an intervening arrest (i.e., the defendant is arrested for the first offense prior to committing the second offense).” 5 2

5 0 U. S. S. G. § 2D 1. 1(b) ( 1) , ap p lication note 11(A)

.
5 1 U ni ted Sta tes v . Brew ster , 137 F. 3d 853, 858 ( 5th Cir. 1998)

.
5 2 U

. S. S. G. § 4A1. 2( a) ( 2)

. 28 Case: 12-40515 Document: 00512575405 Page: 28 Date Filed: 03/27/2014No. 12-40515

The district court senten c e d Gage as a career o ffender under U.S.S.G. § 4B1.1(a) ba s e d o n G a g e’s two prior convictions: o ne, for a n arrest on April 27, 2003, f or Possession of a Controlled Substance with Intent to Deliver, and two,

o n May 27, 2003, for Delivery of a Controlled S ubstance. Gage was se n t e n c e d for both these offenses on the same day, November 11, 2003. Al t h o u gh he acknowledges that the offenses were separated by an intervening arrest, Gage argues that the Court nevertheless should t r e a t t h e m as related because they b oth occurred within a month of e ach other in the same town and the secon d offense (delivery) was the c ompletion of the conduct underlying the first offense (possession with inten t t o deliver). But Gage points to no in-circuit authority that suggests t h e d i s t r ict court should overlook the c lear language of U.S.S.G. § 4A1.2(a)(2) o n t h e s e grounds, and we d e cline t o do so here. Accordingly, we hold that the c alculation of Gage’s sentence under § 4B1.1(a) a nd § 4A1.2(a)(2)
was proper. C. Drug Quantities and Booker It is well established that “[o]ther than the fact of a prior conviction, any fact that i ncreases the penalty for a crime b eyond the pre s c r ib e d s tatutory maximum must b e submitted to a jury, and proved beyond a reasonable doubt” because i t i s , b y definition, an element of the offense. 5 3 Likewise, as the Supreme C ourt held in A lleyne v. U n ited States , 5 4 any fact that in c r e a s e s t he mandatory minimum i s an element and must be submitted to the jury. Af t er Alleyne and its predecessor Blakely , 5 5 th en, b o t h a defendant’s mandatory minimum and maximum sentence must b e det e r m i ned according to the drug quantity found by a j ury. “For a defendant involved in a drug tra f f i c k i n g

5 3 A p p rendi v . N

ew Jersey , 530 U

. S. 465, 490 ( 2000) ; see a lso A l leyne v . U ni ted Sta t es , 133 S. Ct. 2151, 2158 ( 2013)

.

5 4 133 S. Ct. 1251, 1258 ( 2013)

.
5 5 Bla kel y v . Wa shi ngton , 542 U

. S. 296, 303 ( 2004)

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conspiracy, the quantity includes b oth the drugs with which the defendant was directly involved and the drugs that can b e attributed to him th rough the conspiracy.” 5 6 “ ‘[O]nce the j ury has determine d t h a t the conspiracy involved a type and quantity of drugs s ufficient to justif y a sentence above the default statutory maximum and has found a particular d efendant guilty of p a rticipation in the conspiracy, the judge lawfully may determine the dr u g quantity attributable to that defendant and sentence him accordingly.’” 5 7 I. Akins By special verdict, the jury attributed to Akins five kilograms or more of cocaine, 50 grams or more of cocaine base, and less than 50 grams of marijuana. 21 U.S.C. § 841(b)(1)(A) provides that a violation involving 5 kilograms or more of cocaine, or 280 grams or more of crack, is subject to a s t atutory punishment of ten years to life imprisonment. Where a person c o m m i t s a violation of this section a fter two or more prior convictions for felony drug offenses, the offender “shall be sentenced t o a mandatory term of life imprisonment without release.” 5 8 Section 841(b)(1)(B), on the other hand, provides for a minimum term of ten years and a maximum term of life impris o nment f or a violation involving 28 grams or more of crack for a defendant with prior c onvictions f o r f e l o ny drug offenses. The Government filed an Information of S entence Enhancement which indicated that it sought t o enhance Akins’ sentence p ursuant to 21 U.S.C. § 841 and § 851 based on two felony convictions for “Manufacture/Delivery Controlled Substance,” committed on December 17, 1998 and December 18, 1999.

5 6 Bri to , 136 F. 3d at 415 ( citing U n i t e d Sta t es v . Pui

g- Inf ante , 19 F. 3d 929, 942 ( 5th Cir. 1994) ) ; U

. S. S. G

. § 1B1. 3( a) ( 1)

.

5 7 U ni ted Sta tes v . Turner , 319 F. 3d 716, 722 (5th Cir. 2003) ( quoting Derm a n v . U ni ted Sta tes , 298 F. 3d 34, 42–43 ( 1s t Cir. 2002) )

.

5 8 Id. 30 Case: 12-40515 Document: 00512575405 Page: 30 Date Filed: 03/27/2014No. 12-40515

Here, the jury’s f

inding that Akins was responsible f or five kilog r a m s o r

more of powder c ocaine, together with Akins’ two p rior convictions, makes him eligible f

or a mandatory life sentence without p a r o l e u nder § 841(b)(1)(A). Nevertheless, Akins argues that the sentencing judge set aside the jury’s finding that Akins was responsible for five kilograms of powder coca i n e a nd instead sentenced Ak i ns i n accordance with the judge’s own finding that Akins was responsible for 280 grams or more of crack cocaine, which wa s i n excess of the jury’s attribution of 50 grams of crack c ocaine to both Akins and the conspiracy

as a whol e a nd which triggered a higher mandatory sentence, in violation of Booker

. We agree with Akins that the s entencing judge was i n error i nsofar as he looked to a crack cocaine calculation that was in excess of the jury’s finding and that would t rigger a higher sentence than the quantity found by the jury–in this case, the high e r m a ndatory life sentence triggered by 280 grams of crack cocaine rather than the ten years to life sentence that a ccompanies 50 grams for

a repeat offender. But we a re not persuaded a f t e r a careful reading of the sente n cing transcript that the sentencing j udge s et aside or o therwise disregarded the jury’s finding that Akins was responsible for five kilograms or

more of crack cocaine. Although the judge l o oked to the evidence supporting Akins’ involvement with crack cocaine p u rsuant to defense counsel’s “assertion that there’s absolutely no e vidence to support

. . . five kilogra m s of powder cocaine being attributed to Mr. Akins,” the judge never found the j ury’s special verdict regarding powder c ocaine t o b e unsupported by the e v i d e n ce at trial. And any error committed by the sentencing j udge in looking to the higher crack cocaine calculation of 280 grams is harmless under th e scenario here, where the

same m andatory life sentence a pplies to Akins p ursuant to the j ury’s finding t hat Akins a nd the conspiracy as a whole i s responsible for five kilogr a m s o r

more of powder cocaine. H aving previously rejected Ak i n s ’ argument that he cannot b e held responsible for the five kilograms o r more of powder cocaine

31 Case: 12-40515 Document: 00512575405 Page: 31 Date Filed: 03/27/2014No. 12-40515

distributed b y the conspiracy as a whole, we affirm the district court’s sentence.

ii. Marco Perkins Marco Perkins argues that the sentencing judge violated United States v. Booker 5 9 because in calculating the G u idelines range, the judge a ccepted the PSR’s finding that Marco Perkin s w a s r esponsible for more than 300 grams of crack cocaine–an amount i n excess of the jury’s finding, by special verdict, that Perkins was responsible f or less than 500 grams of powder c ocaine and 50 grams

or m ore of c r a c k c o c a i n e . Based on the facts f ound by the j ury and Marco Perkins’ career criminal enhancement, the statutory m inimum and m a ximum sentence under § 841(b)(1)(B) for 28 grams or more of crack cocaine is t en years to life. The sentencing judge adopted the facts set forth in the PSR and, based

on total o f

f e n s e level and criminal history, found the Guidelines range in accordance with the Fair Sentencing Act to be 168 to 210 months incarceration. Marco Perkins was sentenced to 180 months. No error under the Booker line of cases occurred here. T he judge’s finding that Marco Perkins was responsible f or more than 300 grams of c r a c k cocaine did not increase the maximum or the minimum penalty to which Perkins could be subjected based on the jury’s findings and P erkins’ prior convictions, as required for a violation o f e i t h e r Apprendi or A l leyne

. T he judge simply calculated an intermediate a dvisory Guidelines range based o n hi s own findings,

as permitted by Booker and its progeny. T hese f i n d i n g s , moreover, were supported by th e evidence and n ot clearly erroneous, and we hold there is no basis for overturning them here. 6 0

VII. Prior Felony Drug Convictions

5 9 543 U

. S. 220 (2005)

.
6 0 Ca ntu- Ra m i rez , 669 F. 3d at 629 ( exp laining the s tand ard of review )

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Finall y , Akins a rgues that the district court violated Apprendi 6 1 by increasing hi s m axi m u m sentence based on his two p rior felony drug c onvictions. Specifica lly, Akins claims that enhancing his s entence to a mandatory term of life imprisonment based on h is two prior c o nvictions, both for Possession with Intent t o Deliver a C o ntr o ll e d S ub s tance within a School Zone, violated Apprendi and the Sixth Amendment by not being pleaded in the Superseding Indictment and determined by a jury. Akins admits that at least where the r ecidivist issue is not contested, as here, the fact of prior conviction is a sentencing factor that need not be submitted to a j ury. 6 2 Akins’ argument i s foreclosed by S upreme Court precedent and we do not revisit it here. VIII. We affirm.

6 1 See A p p rendi , 530 U. S. 466.

6 2 Id. at 489–90 ( d is cus s ing A l m enda rez - Torres v . U ni t ed Sta tes , 523 U. S. 224 ( 1998) )

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