* Circuit Judge of the United States Court of Appeals for the Eighth Circuit,

sitting by designation.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 96-60277

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

DWIGHT DIXON; STANLEY KNOX,

Defendants-Appellants.

_________________________

Appeals from the United States District Court

for the Northern District of Mississippi

_________________________

December 29, 1997

Before MAGILL, * SMITH, and DeMOSS, Circuit Judges.

MAGILL, Circuit Judge:

Appel lants Stanley Knox and Dwight Dixon were convicted of

various federal offenses related to their participation in a drug

trafficking conspiracy. Appellants appeal their convictions and

sentences, raising a torrent of legal challenges. We vacate Knox's

conviction for conspiracy and affirm the district court in all

other respects.

I.2

Between 1992 and 1995, appellant Stanley Knox operated a large

cocaine distribution organization in Tippah County, Mississippi.

Knox's organization consisted of over nine members who worked under

Knox's direction to obtain, transport, and distribu te crack and

powder cocaine. Knox used his own residence as the distribution

center and headquarters for the organization. Knox employed

several dealers, including appellant Dwight Dixon, to sell crack

cocaine from Knox's house and to deliver crack cocaine to customers

at other locations. Knox and his dealers sold crack cocaine

twenty-four hours per day, seven days per week.

Knox arranged, participated in, and directed several trips to

pick up cocaine from Memphis and Nashville, Tenness ee, for

distribution in Tippah County. These trips were taken several

times per week, and sometimes every other day, and Knox's

organization garnered between two and three ounce s of cocaine on

each trip. If Knox or his runners obtained powder cocaine on a

trip, then Knox would superv ise cooking the powder cocaine into

crack cocaine for future sale. Knox, himself, made at least four

trips to Nashville and picked up betwee n six and nine ounces of

cocaine on each trip. Dixon made at least one trip with Knox to

Memphis to pick up two ounces of cocaine. In July 1994 two of

Knox's runners, Mitchell Knox (Mitchell) and Barry Cook, were

arrested while returning from Memphis after obtaining three ounces

of cocaine for Knox. At the time, Cook and Mitchell were driving

Knox's white Mercedes, which disp layed a license plate for a

different vehicle registered to Dixon.1 The government dismissed three of these counts during trial.

2 The government dismissed these counts during trial.

3 The government dismissed one of these counts during trial.

3 Local, state, and federal authorities investigated Knox's and

Dixon's activities by using undercover agents and informers. The

a gents and informers made numerous controlled drug buys directly

from either Knox, Dixon, or other members of Knox's organization.

Most of the controlled drug buys were performed at Knox's house,

although some were performed at other locations in accordance with

Knox's directions.

On June 22, 1995, a grand jury issued a twenty-three count

indictm ent against ten defendants for various drug and firearm

violations. Dixon was charged with one count of conspiracy to

possess with intent to distribute cocaine base between 1991 and

1995, in violation of 21 U.S.C. § 846. Knox, in addition to being

charged with the conspiracy count, was charged with one count of

unlawfully engaging in a continuing criminal enterprise (CCE) from

1992 to March 1995, in violation of 21 U.S.C. § 848. Knox also was

charged with eight counts of possessing with intent to distribute

cocaine base, in violation of 21 U.S.C. § 841, 1 two counts of using

and carrying firearms in relation to drug trafficking, in violation

of 18 U.S.C. § 924(c), 2 ten count s of using the telephone to

facilitate th e commission of a felony under 21 U.S.C. § 841, in

violation o f 21 U.S.C. § 843, 3 and one count of attempted

possession of cocaine, in violation of 21 U.S.C. §§ 841 and 846.

After Knox and Dixon's indicted codefend ants entered plea4 Knox was sentenced to life imprisonment on the CCE count, and he received

concurrent sentences of various terms on his remaining convictions. The district

court initially also sentenced Knox to a concurrent 240-month sentence for the

conspiracy count, but specifically rescinded the sentence because the conspiracy

was a lesser included offense of the CCE.

4 bar gains with the government, the government proceeded to trial

against Knox and Dixon. The government dismissed several counts

against Knox during trial, and the jury ultimately returned

verdicts of guilty against both Knox and Dixon on all remaining

counts. The district court sentenced Knox to life imprisonment 4

and sentenced Dixon to 240 months imprisonment. Knox and Dixon

raise numerous issues on appeal concerning both their convictions

and their sentences.

II. DOUBLE JEOPARDY

Knox contends that his convictions for both participating in

a drug conspiracy and engaging in a CCE violate the Double Jeopardy

Clause of the Fifth Amendment. We review Knox's double jeopardy

claim de novo. S ee United States v. Fields

, 72 F.3d 1200, 1209

(5th Cir.), cert. denied , 117 S. Ct. 48 (1996).

Count one of the indictment charged Knox with participating in

a drug conspi racy under 21 U.S.C. § 846 and alleged that the

conspiracy existed from 1991 through 1995. Count two of the

indictment charged Knox with engaging in a CCE under 21 U.S.C.

§ 848 and alleged that the CCE existed from 1992 through 1995. The

jury convicted Knox on both counts, but the district court only

imposed sentence on Knox for his CCE conviction.

As the government concedes, a conviction under both the5 Knox contends that his CCE convi ction should also be vacated because

evidence introduced to prove Knox's participation in the conspiracy was

irrelevant to Knox's engagement in the CCE and was extremely prejudicial to Knox.

This contention is absurd. Evidence relevant to proving Knox's participation in

the conspiracy clearly is relevant to proving Knox's engagement in the CCE

because the conspiracy, as a lesser included offense of the CCE, comprises the

same enterprise as the CCE. S ee United States v. Fields

, 72 F.3d 1200, 1209-10

(5th Cir.), cert. denied , 117 S. Ct. 48 (1996).

5 conspiracy and the CCE statutes is unconstitutional where the

alleged CCE is the same enterprise as the conspiracy. See Rutledge

v. United States

, 116 S. Ct. 1241, 1247 (1996); Fields

, 72 F.3d at

1209-10. Because we agree that the alleged CCE is the same

enterprise as the conspiracy, this Court vacates Knox's conviction

for drug conspiracy under count one of the indictment

. 5 S ee

Fields

, 72 F.3d at 1209-10 (vacating drug conspiracy conviction

when defendant unconstitutionally convicted of both drug conspiracy

and engaging in a CCE).

Despite vacating Knox's drug conspiracy conviction, it is not

necessary to remand this case for resentencing. Where it is clear

that the drug conspiracy conviction did not lead the district court

to impose a harsher sentence on Knox for engaging in a CCE than it

would have in the absence of the drug conspiracy conviction, there

is no need to rem and for resentencing. See id . at 1210. Here,

Knox has not even been sentenced for the conspiracy co nviction.

Clearly, the conspiracy conviction did not affect Knox's sentence

for the CCE conviction.

III. EVIDENTIARY ISSUES

"Evaluating the admissibility of evidence is a matter within

the sound discretion of the district court." U nited States v.6

Sparks

, 2 F.3d 574, 582 (5th Cir. 1993). Accordingly, when a

defendant pro perly objects to the admission of evidence, the

district court's decision to admit such evidence is reviewed for an

abuse of discretion. See, e.g., United States v. Bermea , 30 F.3d

1539, 1574 (5th Cir. 1994); Wilson v. Zapata Off-Shore Co.

, 939

F.2d 260, 272 (5th Cir. 1991).

A. Knox's Possession of Firearms

Knox contends that the district court abused its discretion in

allowing the governme nt to introduce evidence that he possessed

firearms. This Circuit has explicitly "recognized that firearms

are 'tools of the trade' of those engaged in illegal drug

activities and are highly probative in pr oving criminal intent."

United States v. Martinez

, 808 F.2d 1050, 1057 (5th Cir. 1987); see

also United States v. Beverly

, 921 F.2d 559, 562 (5th Cir. 1991)

("[t]here is also no doubt that firearms are drug traffickers'

tools of trade"). Accordingly, we find that the district court did

not abuse its discretion in admitting this evidence.

B. Exhibit 26--Bag of Crack Cocaine

Knox also contends that the district court abused its

discretion in admitting a bag of crack cocaine--exhibit 26--because

the governmen t failed to establish the chain of custody with

respect to the bag. Two government witnesses, Captain Eddie

McCullough and Ag ent Jeff Palmer, each testified that they

delivered the bag of cocaine directly to the c rime lab. Palmer6 Knox also argues that the district court abused it s discretion by

admitting exhibit 32--a different bag of cocaine confiscated from Knox--because

of a break in the chain of custody. Knox relies on the admission by two

witnesses in the chain of custody that they never initialed the bag of cocaine

and thus could not be one hundred percent positive that the substance in the bag

was, in fact, the substance confiscated from Knox. Each witness did, however,

testify from whom they received the bag and to whom they provided the bag, and

established the ir respective links in the chain of custody. Accordingly, the

lack of initials does not render the bag of cocaine inadm issible. See United

States v. Sparks

, 2 F.3d 574, 581-82 (5th Cir. 1993) (district court did not

abuse discretion by admitting into evidence two bottles of crack despite

officer's testimony that he never initialed the bottles).

7 testified that McCullough delivered the bag directly to Palmer, and

that McCullough was mistaken when he testified that he delivered

the bag directly to the crime lab. Knox contends that this

contradictory testimony renders the b ag of cocaine inadmissible.

We disagree.

As this Circuit has explained, a "break in the chain of

custody simply goes to the weight of the evidence, not its

admissibility." S parks

, 2 F.3d at 582; see also Bermea

, 30 F.3d at

1574. Accordingly, even if the apparent contradiction between

Palmer's and McCullough's testimonies supports an inference of a

break in the chain of custody--a proposition we doubt--the district

court did not abuse its discretion in admitting the bag of

cocaine. 6

C. Exhibit 31--Tire Town, Inc.'s Business Records

Both Knox and Dixon contend that the district court abused its

discretion in admitting page r-rental records of Tire Town, Inc.

During cross-examination, Tir e Town's owner conceded that he did

not personally create the records and that he did not personally

know whether the records were true or accurate. Tire Town's owner8

did, however, substantiate that the records were business records

within the de finition of Federal Rule of Evidence 803(6) and

t estified that he relied on the accuracy of these records in the

ordinary course of business. This Court has held that

[a]ny person in a position to attest to the authenticity

of certain records is competent to lay the foundation for

the admissibility of the records; he need not have been

the preparer of the record, nor must he personally attest

to the accuracy of the information contained in the

records.

Rosenberg v. Collins

, 624 F.2d 659, 665 (5th Cir. 1980).

Accordingly, the district court di d not abuse its discretion in

admitting Tire Town's business records. S ee Bermea

, 30 F.3d at

1574 (holding that the district court not abuse its discretion by

admitting records under Fed. R. Evid. 803(6 ) even though the

custodian of records admitted "that she did not know whether the

records had been maintained in their original form or altered in

any way"); Wilson

, 939 F.2d at 272 (holding that the district court

did not abuse its discretion by admitting records under Fed. R.

Evid. 803(6) despite the custodian of records's failure to testify

that the records were accurate).

D. Tape Recorded Conversations Between Knox and Myrtle Bennett

Both Knox and Dixon contend that the district court abused its

discretion in admitting tape recordings made of telephone calls

between Knox and Myrtle Bennett, a previously cooperative

government informant, while arranging a controlled drug sale.

Appel lants argue that the tape recorded conversations are

inadmissible hearsay and, because Bennett refused to testify during7 Even if Bennett's recorded statements are hearsay, they are admissible

to put Knox's statements into context. See United States v. Cheramie , 51 F.3d

538, 541 (5th Cir. 1995); United States v. Gutierrez-Chavez

, 842 F.2d 77, 81 (5th

Cir. 1988).

8 Because Bennett refused to testify on the basis of the Fifth Amendment,

she became "unavailable" within the definition of Federal Rule of Evidence

804(a).

9 trial, that the district court's admission of the tape recordings

v iolated their Sixth Amendment right to confront Bennett. We

disagree.

We first point out that neither Knox's nor Bennett's recorded

statement s are inadmissible hearsay. Knox's recorded statements

are not hearsay b ecause they constitute party admissions under

Federal Rule of Evidence 801(d)(2 )(A). S ee United States v.

Cheramie

, 51 F.3d 538, 541 (5th Cir. 1995); United States v.

Gutierrez-Chavez

, 842 F.2d 77, 81 (5th Cir. 1988). Bennett's

recorded statements, rather than offered to prove their truth, are

admissible to prove that they were uttered, and thus do not

constitute hearsay. 7 See Gutierrez-Chavez , 842 F.2d at 81.

With respect to appellants' Sixth A mendment concerns, this

Court recen tly held that tape recordings made of conversations

between an unavailable informant 8 and a defendant are admissible

and do not violate the Sixth Amendment confrontation clause if the

tapes are sup ported by adequate indicia of reliability. S ee

Cheramie

, 51 F.3d at 540-41; Gutierrez-Chavez

, 842 F.2d at 81. In

this case, the government provided adequate indicia of each

recording's reliability. First, Agent Rod Waller was present while

the conversations between Bennett and Knox occurred. Second,10

Waller was the person who dialed Knox's phone number for each

recorded phone call. Third, Waller testified that each recording

contained the same statemen ts that Bennett asserted during the

respective telephone conversations. Fourth, Waller identified

Knox's voice as the voice engaging in dialogue with Bennett during

the recorded telephone conversations. Fifth, a controlled drug

deal occurred in accordance with instructions provided by Knox to

Bennett during one of the recorded phone conversations. Under

these circumstances, we hold that the recordings are supported by

adequate indicia of reliability, s ee Cheramie

, 51 F.3d at 541

(listing fact ors supporting a finding of adequate indicia of

reliability), and that the district court did not abuse its

discretion in admitting the tapes into evidence.

E. Dru g Sale and Tape Recorded Conversation Between Dixon and

Dennis Roberson

Dixon also contends that the district court abused its

discretion in admitting evidence of a drug sale between Dixon and

Dennis Roberson, a government con fidential informant, and in

admitting a tape recording of the con versation between Dixon and

Roberson during the drug sale. Dixon argues on appeal that the

government failed to prove that the drug sale was relevant to his

participation in the drug conspiracy, and thus inadmissible, and

that the tape recording constitutes inadmissible hearsay. We

disagree.

Whether Dixon's sale of drugs to Roberson was an act in11

fur therance of the conspiracy charged in the indictment, rather

than an independent drug sale, is a question of fact for the jury.

See United States v. Morgan

, 117 F.3d 849, 858 (5th Cir.) (holding

that "[w]hether the evidence shows one or multiple conspiracies is

a question of fact for the jury"), cert. denied , 66 U.S.L.W. 3355

(U.S. Nov. 17, 1997) (No. 97-6370). The district court did not

abuse its discretion in admitting evidence of Dixon's drug sale to

Roberson.

With respect to t he tape recording's admissibility, Dixon's

recorded statements are admissible as a party admission under

Federal Rule of Evide nce 801(d)(2)(A), and Roberson's recorded

statements, even if considered hearsay, are admissible to put

Dixon's statements into context. S ee Cheramie

, 51 F.3d at 541;

Gutierrez-Chavez

, 842 F.2d at 81. Accordingly, the district court

did not abuse its discretion by admitting the tape recording.

IV. APPELLANTS' BRADY CLAIM

Knox and Dixon both contend that the government violated Brady

v. Maryland

, 373 U.S. 83 (1963), by failing to produce Knox's

financial records and car titles, which the government seized while

executing a search warrant. Knox argues that such evidence would

have helped him contest the government's allegation that Knox

derived substantial income from the sale of drugs, which is an

essential element of his CCE conviction. Dixon argues that such

evidence would have demonstrated his legitimate ownership of a

Suzuki Samurai Sidekick and that he would thus be exonerated.9 Neither Knox nor Dixon even argues that he could not have obtained the

information through his own due diligence.

12 This Court reviews the district court's Brady determination de

novo. S ee United States v. Green

, 46 F.3d 461, 464 (5th Cir.

1995). To establish a due process violation under B rady

, a

defendant must show that: (1) evidence was suppressed; (2) the

suppressed evidence was favorable to the defense; and (3) the

suppressed evidence was material either to guilt or to punishment.

See Brady

, 373 U.S. at 87; United States v. Aubin

, 87 F.3d 141, 148

(5th Cir. 1996), c ert. denied

, 117 S. Ct. 965 (1997). However,

Brady do es not obligate the government "to produce for [a

defendant] evidence or information already known to him, or that he

could have obtained from other sources by exercising reaso nable

diligence." B rown v. Cain

, 104 F.3d 744, 750 (5th Cir.), c ert.

denied , 117 S. Ct. 1489 (1997). Accordingly, to prevail in their

Brady claim, Knox and Dixon must show that the allegedly suppressed

information was not available to them through due diligence. See

Aubin , 87 F.3d at 149.

Neither Knox nor Dixon has demonstrated that the information

contained in Knox's financial records and car titles was not

available to him through his own due diligence. 9 Knox asserts that

the seized evidence contained information about the income he

received from buying and selling used cars. This is information

about which Knox should have known, and Knox has not shown that

this information was not available to him through due diligence.

Dixon asserts that the suppressed evidence contained information13

about his ownership of the Suzuki. As with Knox, this is

information about which Dixon should have known, and Dixon has not

shown that this information was not available to him through due

diligence. Accordingly, the government did not violate Brady

.

V. SUFFICIENCY OF THE EVIDENCE

When reviewing a claim for insufficiency of the evidence, this

Court must determine whether, based on the totality of the evidence

presented at trial, a rational jury could have found that the

government proved the essential elements of t he crimes charged

b eyond a reasonable doubt. S ee United States v. Davis

, 61 F.3d

291, 296 (5th Cir. 1995). While making this determination, this

Court must consider the evidence in the light most favorable to the

government, including all reasonable inferences that may be drawn

therefrom. S ee United States v. Bermea

, 30 F.3d 1539, 1551 (5th

Cir. 1994).

A. The CCE Conviction

Knox challenges the sufficiency of the evidence to support his

CCE conviction. A person engages in a CCE if:

(1) he violates any provision of [title 21] the

punishment for which is a felony, and

(2) such violation is part of a continuing series of

violations of [title 21] --

(A) which are undertaken by such persons in

concert with five or more o ther persons with

respect to whom such person occupies a position of organizer, a supervisory position,

or any other position of management, and14 (B) from which such person obtains substantial

income or resources.

21 U.S.C. § 848(c).

The testimony at trial established that Knox was the leader of

a large crack and powder cocaine distribution conspiracy that

operated between 1992 and 1995, employed more than five people at

any given time, and made significant sums of money from the

conspiracy. While much of the testimony implicating Knox was from

coconspirators who accepted plea bargains from the government,

"[i]t is well-settled that credibility determinations are the sole

province of the jury." D avis

, 61 F.3d at 297. Indeed, "'[a]

conviction may rest solely on the uncorroborated testimony of one

accomplice if the t estimony is not insubstantial on its face.'"

Id. (quoting United States v. Gibson , 55 F.3d 173, 181 (5th Cir.

1995)). In this case, each of the witnesses testified to numerous

drug runs and drug deals. Moreover, much of the testimony was

corroborated by undercover agents, government informants, and taped

telephone conversations. The bountiful evidence describing Knox's

role in the conspiracy and the substantial income he derived

therefrom was sufficient to support his CCE conviction.

B. Use of a Communication Facility

Knox also challenges the sufficie ncy of the evidence to

support two of his convictions under 21 U.S.C. § 843(b) for using

a communication facility to facilitate the attempted distribution

of cocaine. Knox contends that his convictions under counts

twenty-two and twenty-three are improper becaus e no drug15

transactions occurred as a result of either of the predicate act

telephone calls. We disagree.

T o secure a conviction under 21 U.S.C. § 843(b), the

government must establish that the defendant knowingly and

intention ally used a telephone to facilitate the commission of a

narcotics offense. S ee United States v. Gonz alez-Rodriguez , 966

F.2d 918, 921 (5th Cir. 1992).

In orde r to establish the facilitation element, the

Government must show that the telephone call comes within

the common meaning of facilitate--to make easier or less

difficult, or to assist or aid. It is sufficient if a

defendant's use of a telephone to facilitate the

possession or distribution of controlled substances

facilitates either his own or another person's possession

or distribution.

Id. (quotations and citations omitted). Because counts twenty-two

and twenty-three of the ind ictment specifically charge Knox with

using a communication facility to fa cilitate the "attempted

distribution" of cocaine, the government on ly is required to

establish that Knox used the telephone to facilitate an attempt to

distribute drugs. S ee United States v. Rey

, 641 F.2d 222, 224 n.6

(5th Cir. Unit A Mar. 1981) ("[w]hen the underlying offense is an

inchoate one such as attempt or conspiracy, then the attempt or

conspiracy is all that must be shown

. . . , and it is not

necessary to show completion of the objective of that inchoate

crime").

In this case, we conclude that the evidence is sufficient to

support Knox's convictions under both counts twenty-two and twentythree. During the first telephone call on February 10, 1995 (count

twenty-two), Wanda Henry, a government witness, asked Knox to sell16

her some drugs. To complete the sale, Knox directed Henry to meet

him at a store at which he sold her drugs on the previous day.

Knox subsequently met Henry at the store, but did not sell her any

dru gs. Rather, and because he was concerned that he was being

followed, Knox directed Henry to page him twenty minutes after

leaving the store. Henry subsequently left the store and paged

Knox approximately twenty minutes la ter. Knox responded to the

page (count twenty-three) and directed Henry to meet him at a WalMart to complete the sale. Knox, however, never showed up at the

Wal-Mart. This evidence is sufficient for a reasonable jury to

determine that Knox twice attempted to sell drugs to Henry, and

that Knox used the telephone to facilitate each attempt.

C. The Drug Conspiracy Conviction

Dixon challenges the suffic iency of the evidence to support

his drug conspiracy conviction. To support a drug conspiracy

conviction, the government must establish "(1) the existence of an

agreement between two or more persons to violate narcotics law; (2)

the defendant's knowledge of the agreement; and (3) the defendant's

voluntary par ticipation in the agreement." U nited States v.

Gonzalez

, 76 F.3d 1339, 1346 (5th Cir. 1996). "A jury may infer

the elements of a c onspiracy conviction from circumstantial

evidence: An agre ement to violate narcotics laws may be inferred

from concert of action. Knowledge of the conspiracy may be

inferred from a collection of circumstances." United States v.

Leal

, 74 F.3d 600, 606 (5th Cir. 1996) (quotations and citations1 0 Dixon argues that many of the witnesses who testified against him were

coconspirators who received plea bargains, whose testimony was not credible, and

some of whose testimony was not corroborated by non-coconspirators. As explained

above, however, "[i]t is well-settled that credibi lity determinations are the

sole province of the jury." U nited States v. Davis

, 61 F.3d 291, 297 (5th Cir.

1995). Accordingly, "non-credibility is generally not a sound basis for alleging

insufficiency of the evidence; it is the jury's function to determine

credi bility." U nited States v. Payne

, 99 F.3d 1273, 1278 (5th Cir. 1996)

(quotations and citations omitted).

17 omitted). In addition, "[a]lthough mere presence at the scene of

the crime or close association with a coconspirator will not

support an inference of participation in a conspi racy, a

defendant's voluntary participation may be inferred from a

development and a collocation of circumstances." U nited States v.

Vergara

, 687 F.2d 57, 61 (5th Cir. 1982) (quotations and citations

omitted).

In this case, there is abundant evidence supporting the

existence of a drug conspiracy. The case also teems with evidence

showing that Dixon knew of and voluntarily participated in the

conspiracy. Several witnesses 1 0 testified that Dixon work ed in

Knox's organization, buying, delivering, and selling crack and

powder cocaine. For example, Scott Riddle, one of Knox's cousins

and drug sellers, testified that Dixon sold crack cocaine at Knox's

h ouse and that Dixon made trips to pick up cocaine fo r Knox.

Rhonda Simmons, a coconspirator, testified that Dixon delivered

crack cocaine for Knox. James Rutherford testified that he had

de alt with Dixon when purchasing crack cocaine at Knox's house.

Virginia Cowan testified that she bought crack cocaine from Dixon

at Knox's house. Diane Graham, whose husband bought and sold drugs

for Knox, testified that Dixon worked for Knox. In addition, Knox18

provided a pager to Dixon, and Dixon's license plate was affixed to

Knox's car when two of Knox's drug runners were a rrested.

Furthermore, Dixon traveled with Knox on at least one occasion to

Mississippi to pick up several ounces of cocaine. This evidence is

sufficient to support Dixon's conspiracy conviction.

VI. SENTENCING ISSUES

Knox and Dixon appeal the sentences imposed by the district

court under the United St ates Sentencing Guidelines. This Court

reviews the district court's application of the Sentencing

Guidelines de novo and the distri ct court's factual findings for

clear error. S ee United States v. West

, 58 F.3d 133, 137 (5th Cir.

1995). "A factual finding is not clearly erroneous as long as it

is plausible in light of the record as a whole." U nited States v.

Tho mas , 12 F.3d 1350, 1368 (5th Cir. 1994) (quotations and

citations omitted).

A. Firearm Enhancement

Knox and Dixon both contend that the district court's twolevel enhancement for possession or use of a dangerous weapon,

under U.S.S.G. § 2D1.1(b)(1), was clearly erroneous. The

enhancement is appropriate if a firearm "was possessed during the

course of manufac turing, importing, exporting, or trafficking in

narcotics, including attempting or conspiring to do s o." United

States v. Gaytan

, 74 F.3d 545, 559 (5th Cir.), cert. denied

, 117 S.

Ct. 77, and cert. denied

, 117 S. Ct. 506 (1996). The district19

court's decision to enhance the sentence level for firearms is a

factual determination reviewed for clear error, see United States

v. Brown , 985 F.2d 766, 769 (5th Cir. 1993), and may be supported

by "any relevant evidence that has su fficient indicia of

reliabili ty to support its probable accuracy." U nited States v.

Buchanan

, 70 F.3d 818, 828 (5th Cir. 1995) (quotations and

citations omitted). However, the applicability of the enhancement

must be proved by a preponderance of the evidence. United States

v. Devine , 934 F.2d 1325, 1339 (5th Cir. 1991).

In this case, the evi dence clearly indicates that Knox

possessed firearms during the course of the CCE. Virginia Crum,

Knox's former girlfriend, testified that Knox traveled to Memphis

two to three times each week to pick up cocaine and that Knox

carried a gun on nearly every trip. In addition, both Larry Cox,

one of Knox's coconspirators, and Diane Graham, the wife of one of

Knox's coconspirators, te stified that guns were kept at Knox's

house. Furthermore, Mike Edlemon, a government investigator,

te stified that he saw firearms carried by Knox's coconspirators

while they were selling drugs to customers in Knox's driveway.

The evidence also clearly indicates that the district court

d id not err in enhancing Dixon's sentence under U.S.S.G.

§ 2D1.1(b)(1). A defendant's sentence may properly be enhanced

under U.S.S.G. § 2D1.1(b)(1) if the possession of a firearm by one

of his coconspirators was reasonably foreseeable. See Gaytan , 74

F.3d at 559. This Court has explained that "[o]rdinarily, one coconspirator's use of a firearm will be foreseeable because firearms20

are 'tools of the trade' in drug conspiracies." United States v.

Mergerson

, 4 F.3d 337, 350 (5th Cir. 1993) (citation omitted). In

this case, the evidence demonstrates that Dixon distributed drugs

at Knox's house, and that firearms were kept and carried in Knox's

house in connection with drug activities. In addition, Dixon

traveled to Memphis with Knox on at least one occasion to pick up

drugs, and Knox carried firearms on nearly every trip to Memphis.

B. Constitutionality of 21 U.S.C. § 860(a)

Knox argues that 21 U.S.C . § 860(a) is an unconstitutional

extension of Congress's regulatory powers under the Commerce

Clause, and that his convictions under § 860(a) should thus be

vacated. This Court, however, has already rejected this argument.

See United States v. Clark

, 67 F.3d 1154, 1165-66 (5th Cir. 1995),

vacated in part on other grounds sub nom. Coffman v. United States

,

117 S. Ct. 40 (1996); see also United States v. Allen

, 106 F.3d

695, 701 (6th Cir.) (agreeing with Clark that 21 U.S.C. § 860 is

within Congress's commerce po wer), c ert. denied

, 117 S. Ct. 2467

( 1997); U nited States v. Lopez

, 2 F.3d 1342, 1366 n.50 (5th Cir.

1993) (indica ting that 21 U.S.C. § 860 is based on the "federal

authority o ver intrastate as well as interstate narcotics

trafficking"), aff'd , 514 U.S. 549 (1995).

VII. OTHER ISSUES

Knox and Dixon ra ise numerous other issues in this appeal.

Knox contends that the district court erred by (1) quashing his21

subpoena to Probation Officer Darrell Doss, (2) limiting his crossexamination of Barry Cook and Barry Cox, (3) seating Peggy Dudley

a s a juror, (4) refusing to give one of Knox's propos ed jury

instructions, (5) merging jury instructions for different counts of

the indictment, (6) refus ing to grant a mistrial because Myrtle

Bennett pleaded the Fifth Amendment while on the witness stand, (7)

r efusing to grant a mistrial because of the government's

introduction of improper and prejudicial evidence, (8) refusing to

grant Knox's motion for a new trial, (9) refusing to grant Knox's

motion to suppress evidence concerning his possession of firearms,

(10) admitting variou s testimony, (11) refusing to require the

government to identify a non-testifying confidential informant,

(12 ) attributing 15.65 kilograms of crack cocaine to Knox for

sentencing pu rposes, and (13) refusing to find that Knox was

subject to sentencing entrapment for selling drugs within 1000 feet

of a high school. Dixon incorporates each of Knox's allegations of

error by reference and furth er contends that the district court

erred by (1) refusing to grant Dixon's motion for a new trial, (2)

refusing to give Dixon's proposed jury instructions, (3) limiting

Dixon's objec tions, (4) attributing 11.79 kilograms of crack

cocaine to Dixon for sentencing purposes, (5) refu sing to grant

Dixon a downward departure as a minimal or minor participant, (6)

refusing to grant Dixon a downwar d departure because his

coconspirators, who cooperated with the government, received

lighter s entences, (7) refusing to reduce Dixon's offense level

based on Dixon's acceptance of responsibility, and (8) refusing to22

hol d that the disparity between sentences for crack cocaine and

powder cocaine is unconstitutional. After carefully reviewing the

record, we determine that each of the arguments is meritless under

the established law of this Circuit and does not require

discussio n. See United States v. Allen , 76 F.3d 1348, 1357 (5th

Cir.) (summarily affirming district court and refusing to discuss

meritless arguments), cert. denied , 117 S. Ct. 121 (1996).

VIII. CONCLUSION

For the foregoing reasons, we VACATE Stanley Knox's conviction

on count one (conspiracy), and AFFIRM the district court in all

other respects.

VACATED IN PART AND AFFIRMED IN PART.