IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-31046

UNITED STATES OF AMERICA,

Plaintiff–Appellee

v.

ANDRE HARRIS, also known as Pookie Harris; ARTHUR HARRIS, also 

known as Raymine Harris, also known as Black Harris,

Defendants–Appellants

Appeals from the United States District Court

for the Eastern District of Louisiana

Before SMITH, PRADO, and ELROD, Circuit Judges.

EDWARD C. PRADO, Circuit Judge:

In 2012, a jury convicted Defendants–Appellants Arthur Harris 

(“Arthur”) and Andre Harris (“Andre”) of (1) conspiracy to possess with intent 

to distribute crack cocaine; (2) conspiracy to possess firearms in furtherance of 

a drug-trafficking crime; (3) possession with intent to distribute crack cocaine; 

and (4) possession of firearms in furtherance of the drug-trafficking crimes 

listed above.1 Arthur was also convicted of (1) possession of 5 grams or more 

of crack cocaine with intent to distribute and (2) possession of a firearm in 

1 Because both Defendants–Appellants share the same last name, we refer to Arthur 

Harris and Andre Harris by their first names.

United States Court of Appeals

Fifth Circuit

FILED

January 10, 2014

Lyle W. Cayce

Clerk

 

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furtherance of the drug-trafficking crime. Arthur was sentenced to 481 

months’ imprisonment, and Andre was sentenced to 181 months’

imprisonment. On appeal, both allege a variety of errors were committed 

during their trial and at sentencing. For the reasons that follow, we affirm 

their convictions and sentences. 

I. BACKGROUND

A. Factual Background

The charges and convictions in this case stem from three different 

incidents—one in September 2008, one in June 2010, and one in February 

2011—and a series of recorded phone conversations between Andre and 

Arthur. 

In September 2008, New Orleans police obtained consent to search a 

home owned by the parent of one of Arthur’s friends, Casey Jones (“Jones”). 

Arthur was at the home at the time the police executed the search. Police 

focused their search on Jones’s bedroom, and inside they found several 

different types of ammunition, a mirror covered in white powder residue, a 

razor blade, and plastic baggies. The police also recovered several firearms 

that were stored underneath the home. Arthur, Jones, and another friend of 

theirs, Walter Conley, were arrested that night. 

Almost two years later, in June 2010, New Orleans police officers arrived 

at the home of Andre’s and Arthur’s mother to execute an arrest warrant for 

their sister on an unrelated battery charge. When police arrived, they saw 

contraband through a window and entered the house through the window. 

While the police were securing the house, they discovered several pieces of 

crack cocaine in a toilet. Police also confiscated “a wad of money” ($220) from 

Arthur’s person. The only individuals in the home during this incident were 

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Arthur and his younger brother, TH.2 After police obtained a search warrant, 

they also found several firearms in the home. Arthur was arrested and 

indicted on two charges that were later included in the 2011 superseding 

indictment, which led to the trial in this case. 

While Arthur was in jail following the September 2008 and June 2010 

incidents, he spoke on the phone many times with Andre.3 Those jailhouse 

phone calls were recorded, and agents used recordings of those calls in an 

attempt to gain insight into Andre’s and Arthur’s activity outside the jail.

Finally, in February 2011, New Orleans police officers and members of a 

U.S. Marshals task force went to Andre’s apartment to arrest TH for armed 

carjacking. When police arrived, they knocked on the front door and identified 

themselves. They continued knocking after seeing one of the individuals in the 

house try to exit through a window. The front door opened,4 and when police 

entered, they found Andre, Arthur, and TH inside. The police saw ammunition 

when they entered the apartment. After obtaining a search warrant, they 

found several firearms, rounds of ammunition, a red sight (a small laser that 

helps aim a gun), $2,473 in cash, binoculars, ski masks, a scale, and sixty small 

plastic bags containing what was later identified as 11.2 grams of cocaine base. 

Arthur, Andre, and TH were all arrested. 

2 Because he was a minor at the time these events took place, we refer to the younger 

brother only by his initials.

3 At trial, an Alcohol, Tobacco and Firearm agent, Agent Suzanne Pecora, testified 

that she had listened to “hundreds” of Arthur’s phone calls and “[n]ot hundreds, but a lot” of 

Andre’s phone calls. 

4 At trial, the officers testified that someone in Andre’s apartment opened the door, 

but they could not recall who opened the door. 

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B. Procedural Background

On February 24, 2011, Andre and Arthur were both indicted on four 

counts: 

(1) conspiracy to possess with the intent to distribute an unspecified amount 

of cocaine base in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), and § 846;

(2) conspiracy to possess firearms in furtherance of drug-trafficking crimes of 

(a) conspiracy to possess cocaine base with intent to distribute and (b) 

possession of cocaine base with intent to distribute in violation of 18 U.S.C. 

§ 924(o);

(3) possession with intent to distribute an unspecified quantity of cocaine base 

in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), and 18 U.S.C. § 2; and

(4) possession of four firearms in furtherance of drug-trafficking crimes of (a) 

conspiracy to possess cocaine base with intent to distribute and (b) 

possession of cocaine base with intent to distribute in violation of 18 U.S.C. 

§ 924(c)(1)(A) and 18 U.S.C. § 2. 

Arthur was also individually charged with possession with intent to distribute 

5 grams or more of cocaine base and possession of two firearms in furtherance 

of a drug-trafficking crime, both dating back to his arrest in June 2010. 

Following a three-day trial, a jury found Arthur and Andre guilty of all 

charges. After the preparation of a Presentence Investigation Report (“PSR”) 

for both Andre and Arthur, the district court imposed sentences. 

Arthur was sentenced to 481 months’ imprisonment. In determining the 

quantity of drugs, the court, citing the comments to United States Sentencing 

Guidelines Manual (“U.S.S.G.”) § 2D1.1, found that the amount seized did not 

reflect the scale of the offense and determined the quantity involved was 

greater than 28 grams, making his base level 26. The court also determined 

that Arthur was subject to a two-level enhancement under U.S.S.G. § 3B1.1 for 

being an organizer, leader, manager, or supervisor of his younger brother TH. 

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Because TH was a minor at the time, this also added another two-level 

enhancement under U.S.S.G. § 2D1.1(14)(B), leaving Arthur’s base level at 30. 

Given his category III criminal history, his guidelines range was 121–151 

months. Arthur was also subject to a thirty-year minimum sentence: not less 

than five years for possession of a firearm in furtherance of a drug-trafficking 

crime and not less than twenty-five years for a second conviction on that 

charge. After considering the 18 U.S.C. § 3553(a) factors, the court imposed a 

481-month sentence on Arthur. 

Andre was sentenced to 181 months. The court used the same drug 

quantity and the same enhancement for supervising TH, which left a base level 

of 30 and a range of 97–121 months based on his lack of criminal history. 

Andre was also subject to a minimum five-year sentence for his conviction for 

possession of a firearm in furtherance of a drug-trafficking crime. After 

considering the 3553(a) factors, the court imposed a 181-month sentence: the 

minimum 60 months and an additional 121 months based on the applicable 

range. Both Arthur and Andre timely appealed. 

II. JURISDICTION

This is an appeal of a final judgment and for review of a sentence, and so 

this Court has jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. 

III. DISCUSSION

Arthur and Andre allege that a variety of errors were committed during 

their trial and at sentencing. Arthur raises the following issues on appeal: (1) 

there was insufficient evidence to support his conviction for the conspiracy 

charges, the firearm possession charge, and the drug possession charge, all 

based on the February 2011 incident; (2) the district court erred in the jury 

instruction for the charge under 18 U.S.C. § 924(c), possession of a firearm in 

furtherance of a drug-trafficking crime; (3) the district court erred when it 

failed to instruct the jury that it could not consider Arthur’s juvenile conduct 

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in determining guilt; (4) the district court miscalculated Arthur’s guidelines

range by improperly calculating the amount of crack cocaine and by enhancing 

his sentence for supervising his younger brother TH; (5) his 40-year sentence 

was substantively unreasonable; and (6) the district court erred in allowing 

Agent Pecora’s extensive interpretation of the phone calls between Andre and 

Arthur. 

Andre raises the following issues on appeal: (1) there was insufficient 

evidence to support his conviction for the conspiracy charges stemming from 

the February 2011 incident; (2) the evidence was insufficient to support his 

convictions for possession of drugs and firearms; (3) the district court erred in 

the jury instruction for the charge under 18 U.S.C. § 924(c), possession of a 

firearm in furtherance of a drug-trafficking crime; (4) his 181-month sentence 

was substantively unreasonable; (5) the district court erred in allowing Agent 

Pecora’s extensive interpretation of the phone calls between Andre and Arthur; 

and (6) law enforcement officers violated his Fourth Amendment rights by 

entering his home without a search warrant. We address each of these 

concerns below. 

A. Sufficiency of the Evidence

1. Standard of Review

Both Arthur and Andre properly preserved this issue by moving for 

acquittal at the close of the Government’s case and at the close of all of the 

evidence. See United States v. Shum, 496 F.3d 390, 391 (5th Cir. 2007) (citation 

omitted). This Court reviews the sufficiency of the evidence de novo. Id. “In 

deciding whether the evidence was sufficient, we review all evidence in the 

light most favorable to the verdict to determine whether a rational trier of fact 

could have found that the evidence established the essential elements of the 

offense beyond a reasonable doubt.” Id. (citations omitted). 

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2. Analysis 

i. Sufficiency of the Evidence for the Conspiracy Charges

Arthur and Andre argue that the evidence was insufficient to support 

their convictions for conspiracy to possess drugs and conspiracy to possess 

firearms in furtherance of the drug-trafficking crime. Both argue that, during 

trial, the Government failed to prove that any agreement existed between the 

two of them to possess drugs or firearms. In response, the Government points 

to testimony throughout the three-day jury trial, physical evidence police 

recovered, and recorded conversations that, it claims, allowed the jury to find 

the required elements satisfied beyond a reasonable doubt. 

“[T]he elements of the conspiracy may be established by circumstantial 

evidence and may be inferred from the development and collocation of 

circumstances.” United States v. Mendoza, 226 F.3d 340, 343 (5th Cir. 2000) 

(citation and internal quotation marks omitted). “An express, explicit 

agreement is not required; a tacit agreement will suffice.” United States v. 

Greenwood, 974 F.2d 1449, 1457 (5th Cir. 1992) (citation omitted). And, as this 

Court has previously recognized, “direct evidence of an agreement to deal in 

drugs rarely exists.” United States v. Ornelas–Rodriguez, 12 F.3d 1339, 1345 

(5th Cir. 1994). 

We hold that the evidence was sufficient to support Arthur’s and Andre’s 

convictions for conspiracy. First and foremost, police officers found Andre and 

Arthur together in Andre’s apartment in February 2011, when the police 

recovered more than 11 grams of crack cocaine separated into 60 baggies, 

firearms, a scale, and more than $2,000 in cash. In addition, the jury heard 

recordings and read transcripts of more than a dozen recorded phone calls 

between Arthur and Andre. During those phone calls, Arthur and Andre 

repeatedly discussed drugs, firearms, and money earned from selling drugs 

and gave each other advice. 

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For example, in the phone calls immediately following the September 

2008 incident, Andre told Arthur that “I told them ni--ers about leavin’ all them 

guns in they houses” and “I used to tell them, what you gone put that s--t 

in, what you got all that sh--t in the house for? That sh--t don’t supposed to be 

in no house.” Arthur and Andre also discussed how much to pay a woman 

named Bree: “I had to boost her up to seventy . . . she doin’ good”/“I might just 

give her five, fifty”/“Man, I’d give that ‘ho thirty-five man. She, she gone make 

a bill easy”/“But she, I’m lookin’ at the other point, I’m not out there, see what 

I’m sayin’.” Arthur also gave Andre advice, telling him “you better learn how 

to whip [i.e., convert powder cocaine into crack cocaine]. I ain’t f--kin’ with that 

s--t when I come home though, man.” In the same call, Arthur also told Andre 

that Andre “probably woulda been made about a hundred stacks [one stack is 

$1,000]” and telling him “if you plan before you do s--t, round, you’ll be stacked 

out.” Viewing the evidence in the light most favorable to the verdict, we hold 

that a reasonable trier of fact could have found the evidence proved the 

conspiracy charges beyond a reasonable doubt. 

ii. Sufficiency of the Evidence to Support Convictions for 

Possession of Drugs and Firearms Stemming from the 

February 2011 Incident

Andre argues that, if we reverse the conspiracy convictions as he urges 

us to do, we should also vacate his possession convictions because those 

convictions relied on co-conspirator evidence that would not have been 

admissible without the conspiracy. Arthur also claims that the evidence was 

insufficient to support his conviction for possession of crack cocaine with an 

intent to distribute and possession of a firearm based on the February 2011 

incident. He argues that no physical evidence linked him to the contraband 

and so he cannot be held responsible for the drugs and firearms that the police 

recovered from Andre’s apartment. 

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We hold that the evidence was sufficient to support these convictions. 

Andre’s only argument in favor of vacating his drug and firearms possession 

convictions rests on this Court reversing his conspiracy convictions. He claims 

that, because the conspiracy conviction should be reversed, statements of coconspirators should not have been admitted, and thus, we should vacate his 

possession convictions. Because we affirm his conspiracy convictions and the 

evidence supports his possession convictions, we affirm his convictions for 

possession of drugs and firearms. 

Arthur’s arguments also do not convince us that the evidence was 

insufficient to support his convictions for possession. His arguments ignore 

the fact that the jury was not required to find that Arthur actually possessed 

the contraband. He could have been found to have constructive possession of 

the drugs and firearms; he also could have been held liable for Andre’s 

substantive offenses during the conspiracy as a co-conspirator. See Ornelas–

Rodriguez, 12 F.3d at 1345–46 (affirming the conviction of a co-conspirator for 

possession of cocaine even when “much of the government’s evidence regarding 

the participation by [the defendant] may have been circumstantial”). Here, 

Arthur was found in Andre’s apartment along with Andre and TH, and police 

officers also found drugs, firearms, ammunition, a scale, plastic baggies, and 

cash in Andre’s apartment. Combined with the other evidence that supports 

the conspiracy conviction, such as the recorded phone calls discussed above, we 

hold that a reasonable trier of fact could have found beyond a reasonable doubt 

that Arthur possessed the contraband. 

B. Jury Instruction for Charge for Possession of a Firearm in 

Furtherance of a Drug-Trafficking Crime under 18 U.S.C. § 924(c)

1. Standard of Review 

The parties dispute the appropriate standard of review for this issue. 

Arthur argues that the Court should review the jury charge on the violation of 

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18 U.S.C. § 924(c)(1)(A) de novo. He claims that he properly objected at trial,

and he acknowledges that this Court typically reviews a failure to give a 

requested jury instruction for an abuse of discretion. But, Arthur cites United 

States v. Wright, 634 F.3d 770 (5th Cir. 2011), for the proposition that “when a 

jury instruction hinges on a question of statutory construction, [this Court’s] 

review is de novo.” Id. at 774. While Andre acknowledges that his attorney 

did not object at trial, he cites United States v. Sanchez–Sotelo, 8 F.3d 202, 210 

(5th Cir. 1993), to show that Arthur’s objection preserves the error for him as 

well. Andre also agrees with Arthur that the standard of review should be de 

novo. The Government, however, responds that plain error review is 

appropriate because Arthur failed to adequately object and that “at best” his 

attorney’s objection was “vague.”

We agree with Arthur and Andre that we review the jury instruction de 

novo. Arthur’s attorney asked the district court for clarification of the jury 

instruction and requested that the court use his suggested language for the 

jury instruction instead, thereby preserving his argument for appeal. See 

United States v. Trice, 823 F.2d 80, 91 n.11 (5th Cir. 1987) (holding that a 

similarly worded objection, although not “a model of clarity,” was minimally 

sufficient to alert the court to the substance of the objection). Further, the 

objection to the jury instruction hinges on a question of statutory 

interpretation. Arthur and Andre claim the jury instruction was improper 

because it did not correctly encapsulate the statutory requirements for the 

crime of possession of a firearm in furtherance of a drug-trafficking crime 

under § 924(c). Thus, we review the jury instructions for possession of a 

firearm in furtherance of a drug-trafficking crime de novo. 

2. Analysis 

Arthur argues that the § 924(c) jury instruction allowed the jury to 

convict him without finding the necessary elements of the § 924(c) offense. He 

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claims that, under the given instruction, the jury could have found him guilty 

so long as it found that the firearms in question furthered the drug-trafficking 

offense, even if the jury did not believe that his possession of the firearms 

actually did so. Andre adopts this argument and further argues that the jury 

instruction removed the requirement of subjective intent that is inherent in 

the statute. The Government, pointing out that the district court followed this 

Court’s pattern jury instructions for an alleged offense under §924(c), argues 

that the instructions required the Government to prove precisely what the 

statute requires.

We hold that the 18 U.S.C. § 924(c) jury instruction was correct. First, 

the Government is correct that the § 924(c) jury instruction given in this case 

mirrors the Fifth Circuit pattern jury instructions almost exactly.5 Second, 

both the pattern jury instructions and the jury instructions in this case follow 

the language in § 924(c) and courts’ interpretations of that language. See 18 

U.S.C. § 924(c)(1)(A) (“any person who, . . . in furtherance of any [drugtrafficking crime], possesses a firearm”); see also Dean v. United States, 556 

U.S. 568, 571–74 (2009) (interpreting § 924(c)(1)(A)); United States v. Ceballos–

5 The jury instructions in this case were as follows: 

The second element is that the defendant knowingly possessed a 

firearm in furtherance of the defendant’s alleged commission of the crimes as 

charged in Counts 1, 3 and/or 5. 

To prove that the defendant possessed a firearm in furtherance of the 

drug-trafficking offense, the government must prove that the defendant 

possessed a firearm that furthers, advances or helps forward the drugtrafficking crime. 

The Fifth Circuit pattern jury instructions read: 

Second; That the defendant knowingly possessed a firearm in 

furtherance of the defendant’s commission of the crime charged in Count ___.

To prove the defendant possessed a firearm “in furtherance,” the 

government must prove that the defendant possessed a firearm that furthers, 

advances, or helps forward the drug trafficking crime. 

Fifth Circuit Pattern Jury Instructions (Criminal) § 2.48 (2012). 

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Torres, 218 F.3d 409, 415 (5th Cir. 2000) (interpreting the possession element 

of § 924(c) and holding that “firearm possession that furthers, advances, or 

helps forward the drug trafficking offense violates the statute”). Finally, this 

Court has previously upheld these pattern jury instructions as correctly 

stating the law. See United States v. Montes, 602 F.3d 381, 386–87 (5th Cir. 

2010) (holding that the § 924(c)(1) instructions “correctly stated the law” where 

the defendant–appellant had challenged them as “convoluted” and “hard to 

understand”).6 Thus, we hold that the district court did not err in instructing 

the jury on the count of possession of a firearm in furtherance of a drugtrafficking crime charged under 18 U.S.C. § 924(c).

C. Failure to Instruct the Jury to Disregard the Offenses Arthur 

Committed as a Minor

1. Standard of Review 

Both parties agree that Arthur did not raise this issue before the district 

court, and thus, we review only for plain error. Under plain error review, the 

Defendant–Appellant “must show: (1) an error, (2) that is plain, (3) and that 

affected his substantial rights.” United States v. Garcia–Gonzalez, 714 F.3d 

306, 315 (5th Cir. 2013) (citation omitted). Even if the Defendant–Appellant 

satisfies those criteria, this Court “will exercise discretion to correct the error 

only if the error seriously affect[s] the fairness, integrity or public reputation 

of judicial proceedings.” Id. (alteration in original) (citation and internal 

quotation marks omitted). 

6 Specifically, Arthur and Andre argue that the instruction is currently ambiguous as 

to whether the firearm or the possession of that firearm must be “in furtherance” of the crime. 

We agree with the Government’s interpretation and think that the instruction correctly 

states the law. Nonetheless, the pattern jury instruction may warrant future revision to 

provide greater grammatical clarity.

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2. Analysis

Arthur argues that the district court erred by failing to instruct the jury 

that it could not consider the events that took place when he was under 

eighteen years old. He points out that he was seventeen at the time of the 

September 2008 incident, and yet the jury was able to evaluate his conduct as 

a juvenile in conjunction with the other incidents that occurred when he was 

an adult (in June 2010 and February 2011) and the recorded phone calls. 

“The circuits are split on whether the district court must instruct the 

jury to disregard evidence of pre-eighteen conduct when assessing guilt” in a 

continuing crime, such as a conspiracy. United States v. Tolliver, 61 F.3d 1189, 

1199–1200 (5th Cir. 1995), vacated on other grounds sub nom. Moore v. United 

States, 519 U.S. 802 (1996). Although we acknowledged this circuit split in

Tolliver, we left unanswered the question of whether the failure to give such a 

limiting instruction is error. This Court reasoned that, because the “posteighteenth birthday evidence was sufficient to support the jury’s verdict,” the 

defendant could not establish plain error. Id. at 1200–01. Arthur argues that 

his case is distinguishable from Tolliver, because, in his case, the post-eighteen 

conduct is insufficient to support the verdict. But, as we have previously 

discussed, see supra Part III(A)(2), the jury saw a great deal of post-eighteen 

evidence on which it could have based Arthur’s guilty verdict. Thus, Arthur’s 

case is not factually distinguishable from Tolliver.

We therefore hold that the district court’s failure to give an instruction 

limiting the jury’s reliance on Arthur’s juvenile conduct was not plainly

erroneous. Under Henderson v. United States, 133 S. Ct. 1121 (2013), “a 

substantive legal question that was unsettled at the time the trial court acted 

. . . foreclose[s] the possibility that an error could have been ‘plain’” unless it 

becomes settled by the time of appellate review. Id. at 1124–25. Here, the 

substantive legal question of whether the district court was required to 

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instruct the jury to disregard Arthur’s pre-eighteen conduct was unanswered 

at the time of the trial. This Court still has not resolved this question, and 

given the sufficiency of the evidence of post-eighteen conduct, we need not 

answer it today. Thus, the district court did not plainly err in failing to give 

this instruction. 

D. Calculation of Arthur’s Guidelines Range

1. Standard of Review

Under Gall v. United States, 552 U.S. 38 (2007), appellate courts take a 

two-step approach to reviewing sentences. Id. at 51. This Court must first

review a sentence to ensure that it is procedurally sound and, assuming that 

it is, then consider the substantive reasonableness of the sentence under an 

abuse of discretion standard. Id. Nothing in this analysis under Gall, though,

“alter[s] our review of the district court’s construction of the Guidelines or 

findings of fact.” United States v. Cisneros–Gutierrez, 517 F.3d 751, 764 (5th 

Cir. 2008). Thus, we still review factual findings related to sentencing for clear 

error. Id. (citation omitted). Drug quantity determinations are factual 

determinations, United States v. Ramirez, 271 F.3d 611, 612 (5th Cir. 2001)

(citation omitted), as is the determination of whether a defendant is a § 3B1.1 

leader or organizer, United States v. Valencia, 44 F.3d 269, 272 (5th Cir. 1995). 

“If the district court’s account of the evidence is plausible in light of the record 

viewed in its entirety, [this Court] may not reverse,” even if, had we been 

sitting as trier of fact, we might have weighed the evidence differently. 

Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573–74 (1985). “Where 

there are two permissible views of the evidence, the factfinder’s choice between 

them cannot be clearly erroneous.” Id. at 574. 

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2. Analysis 

i. Calculation of the Drug Quantity

Arthur argues that he should only be held responsible for 15.7 grams of 

crack cocaine, the actual amount that police seized in the three incidents. The 

Government, though, claims that the district court did not clearly err in finding 

Arthur responsible for at least 28 grams of crack cocaine. For support, the 

Government points to the comments to U.S.S.G. § 2D1.1, which allow the 

district court to approximate the quantity of the controlled substance when the 

“amount seized does not reflect the scale of the offense.” U.S.S.G. § 2D1.1 cmt. 

n.5. Thus, the Government argues, the district court did not err in relying on 

the amount of cash the police seized and the recorded phone calls to estimate 

that Arthur was responsible for at least 28 grams.

We agree that the district court’s finding that Arthur was responsible for 

at least 28 grams of crack cocaine was not clearly erroneous. This Court has 

previously affirmed sentences where the district court, citing the comments to 

U.S.S.G. § 2D1.1, estimated the drug quantity when the amount actually 

seized did not reflect the scale of the offense, see United States v. Robins, 978 

F.2d 881, 889–90 (5th Cir. 1992), and we see no error in the district court using 

the same approach in this case. During sentencing, the district court judge 

stated that given Arthur’s and Andre’s “extensive dealings” there was 

“sufficient evidence that their conspiracy and drug dealing greatly exceeded at 

least 28 grams.” Our review of the record shows that the evidence supports 

this finding. The district court relied on (1) a phone call where Andre talked 

about having “a zone” (an ounce, or 28 grams of crack cocaine); (2) a phone call 

during which Arthur told Andre that if he kept going, he would “make a 100 

stacks, meaning $100,000”; and (3) the $2,473 in cash that police found during 

the February 2011 incident. The record, viewed as a whole, makes the 

estimate of at least 28 grams plausible and not clearly erroneous. 

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ii. Sentence Enhancement for Being a Leader of a Minor

Arthur also argues that the district court improperly found that he 

supervised his younger brother TH. To argue that this factual finding is clearly 

erroneous, Arthur points to a recorded phone call where he asked TH to 

retrieve drugs and TH refused. While he acknowledges that a police officer 

testified at trial that Arthur’s mother had told the officer that Arthur made TH

a drug mule, Arthur emphasizes that his mother testified at trial that she did 

not remember making that statement.

After reviewing the record, we hold that the district court’s finding that 

Arthur supervised TH was not clearly erroneous. In the recorded phone calls, 

Arthur stated that, during the June 2010 incident, he told TH to answer the 

door when police arrived; he discussed TH taking responsibility for the drugs 

found during the same incident; and he told his mother to ask TH to lie if the 

police questioned him about the June 2010 arrest. Perhaps most importantly, 

at Arthur’s trial, a police officer testified that Arthur’s mother had told the 

officer that she threw Arthur out of her house and “had [Arthur] arrested 

before for fighting, bullying . . . [TH], for making him mule,” which the officer 

understood to mean “to transport drugs.” And while Arthur is correct that his 

mother testified at trial that she did not remember making that statement, 

“[w]here there are two permissible views of the evidence, the factfinder’s choice 

between them cannot be clearly erroneous.” Anderson, 470 U.S. at 574. The 

district court had the opportunity to evaluate the credibility of both the police 

officer and Arthur’s mother, and we must respect that determination. See 

Amadeo v. Zant, 486 U.S. 214, 223 (1988). Taking all of these facts together, 

we hold that the district court’s finding that Arthur supervised TH was not 

clearly erroneous. 

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E. Substantive Reasonableness of Arthur’s and Andre’s Sentences

1. Standard of Review

This Court reviews the substantive reasonableness of a sentence under 

an abuse of discretion standard. See Gall, 522 U.S. at 51. We apply a 

presumption of reasonableness if the sentence is within the guidelines range. 

United States v. Gutierrez–Hernandez, 581 F.3d 251, 254 (5th Cir. 2009) 

(citation omitted). “The presumption is rebutted only upon a showing that the 

sentence does not account for a factor that should receive significant weight, it 

gives significant weight to an irrelevant or improper factor, or it represents a 

clear error of judgment in balancing sentencing factors.” United States v. 

Cooks, 589 F.3d 173, 186 (5th Cir. 2009) (citation omitted).

2. Substantive Reasonableness of the Sentences 

i. Substantive Reasonableness of Arthur’s 481-Month Sentence

Arthur argues that his sentence “was greater than necessary to 

accomplish the proper goals of imprisonment under § 3553(a)(2) and therefore 

was unlawful.” Specifically, he mentions that he was a minor at the time of 

some of the offenses and that he “has struggled emotionally since childhood.” 

He also claims that the district court “gave too much weight to the Guidelines 

in refusing [his] request for a downward variance.” The Government disagrees, 

pointing out that the district court imposed a sentence that was at the bottom 

of the guidelines range. 

We hold that Arthur’s sentence is not substantively unreasonable. 

First, his sentence was within the guidelines: his guidelines range was 121–

151 months, and he was sentenced to 121 months’ imprisonment to be served 

consecutively with the mandatory thirty-year sentence. Thus, a presumption 

of reasonableness attaches, see Gutierrez–Hernandez, 581 F.3d at 254, a 

presumption that Arthur has failed to rebut. The district court considered the 

§ 3553(a) factors, and while recognizing that “[i]t’s a very long sentence 

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obviously,” the court also noted that Arthur is “a person that should not be 

returned to the streets any time soon because [he is] . . . a menace to [him]self 

and to society.” There is no evidence that the district court gave undue weight 

to any factors, failed to consider factors that it should have, or made a clear 

error in balancing sentencing factors. Finally, as this Court has previously 

observed, “it will be rare for a reviewing court to say . . . a sentence [at the 

bottom of the guidelines range] is ‘unreasonable,’” United States v. Mares, 402 

F.3d 511, 519 (5th Cir. 2005), and we see no reason to do so in this case. See 

also United States v. Alonzo, 435 F.3d 551, 554–55 (5th Cir. 2006) (holding that 

defendant–appellant had “failed to demonstrate that his properly calculated 

Guidelines sentence, which was at the lowest end of the range, was 

unreasonable”). 

ii. Substantive Reasonableness of Andre’s 181-Month Sentence

Andre argues that his sentence is substantively unreasonable for two 

main reasons. First, he alleges that the district court did not give sufficient 

weight to his positive character traits despite his difficult upbringing. He 

points out that he had a legal job, and he cites to a recorded conversation 

between himself and Arthur that he claims demonstrates that he has a “strong 

sense of fairness.” Second, he claims that the firearms he possessed were 

necessary for protection and that “there is a moral distinction between people 

who initiate violence to advance their own ends and people who are caught up 

in the ensuing maelstrom,” as he was. The Government rejects the idea that 

Andre’s sentence failed to account for factors that should be given significant 

weight and also rejects the idea that Andre’s need for guns for personal 

protection because of his drug-trafficking activity supports a variance.

We hold that Andre’s sentence is not substantively unreasonable. He

was sentenced within the guidelines, see supra Part I(B), and so a presumption 

of reasonableness attaches to his sentence. See Gutierrez–Hernandez, 581 F.3d 

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at 254. Andre has failed to rebut this presumption. The district court 

considered the factors in § 3553(a) in imposing his sentence. While Andre 

claims the district court did not properly weigh his employment or consider 

that he needed the firearms for protection, he has not cited any authority to 

support his claim that those factors rebut the presumption of reasonableness, 

nor have we located any authority that would support that position. Given the 

fact that the district court gave a sentence within guidelines and considered 

relevant factors without giving undue weight to improper factors, we cannot 

say that the district court abused its discretion in sentencing Andre. See 

United States v. Duarte, 569 F.3d 528, 530 (5th Cir. 2009) (rejecting the 

argument that the sentence was substantively unreasonable where the district 

court judge had “considered [the defendant’s] case carefully”). 

F. Alcohol, Tobacco, and Firearm Agent’s Testimony 

1. Standard of Review

The parties dispute the standard of review that applies to this issue, 

because they disagree about whether the issue was adequately preserved for 

appeal. Andre and Arthur argue that this Court should review the admission 

of all of Agent Pecora’s testimony for an abuse of discretion.7 They point out 

that Andre’s attorney objected near the beginning of Agent Pecora’s testimony, 

and, when the court overruled the objection, “[t]he ground for the ruling 

assumed that Pecora was allowed to interpret the tapes so long as her 

interpretation was reasonable,” thus making any further objection “futile.” 

While the Government agrees that this Court should review the specifically 

objected-to question and answer for an abuse of discretion, the Government 

claims that the rest of Agent Pecora’s testimony should only be reviewed for 

7 In a letter filed pursuant to Federal Rule of Appellate Procedure 28(i), Arthur 

adopted Andre’s arguments on this issue, and so we refer to Andre and Arthur as making 

these arguments together. 

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plain error. The Government argues that the record does not support Arthur’s 

and Andre’s claim that further objection would be futile and that nothing about 

the objection suggested it applied to the testimony that followed.

Under certain circumstances, a party can preserve error without a 

formal objection. See United States v. Gerezano–Rosales, 692 F.3d 393, 399 

(5th Cir. 2012). This can occur when “(1) ‘[t]he essential substance of the 

objection is obvious and was made known to the district court’ and (2) the 

‘context of the [informal] objection and ruling’ suggests that ‘counsel was 

entitled to believe that further explanation would not be welcomed or 

entertained by the district court.’” Id. (alterations in original) (quoting United 

States v. Mendiola, 42 F.3d 259, 261 n.2 (5th Cir. 1994)). 

Neither of those circumstances is present here. First, the language of 

the objection and the court’s ruling only applied to that particular question and 

answer. Andre’s objection specifically stated “especially a sentence like that,” 

and the court’s ruling referred to Agent Pecora’s interpretation of “that” 

sentence as “a fair statement.” Andre’s objection also did not make the 

essential substance of all of his objections to Agent Pecora’s testimony obvious. 

He objected before the district court that “the words speak for themselves,” but 

on appeal, he argues that Agent Pecora’s testimony “went far beyond 

interpreting code” and “was improper and prejudicial.” Second, there is no 

evidence that the district court would not have entertained further explanation 

or objection in this case. But see United States v. Castillo, 430 F.3d 230, 241–

43 (5th Cir. 2005) (holding that a formal objection was not required where the 

district court’s “evident anger” and “its unusual hostility toward the 

prosecutor” would have made further objection futile). Thus, we will review 

the admission of the objected-to question and answer for an abuse of discretion, 

see United States v. El–Mezain, 664 F.3d 467, 511 (5th Cir. 2011), and the 

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decision to admit the rest of the testimony for plain error, see Garcia–Gonzalez, 

714 F.3d at 315 (citation omitted). 

2. Analysis 

Andre and Arthur argue that Agent Pecora’s testimony went far beyond 

interpreting drug code and invaded the province of the jury. The Government 

responds that Agent Pecora’s testimony was properly admitted under Federal 

Rule of Evidence 701. In support, the Government points to case law from this 

Circuit, in particular El–Mezain, 664 F.3d 467, and United States v. Miranda, 

248 F.3d 434 (5th Cir. 2001), that, it argues, allows the type of testimony Agent 

Pecora gave in this case. 

As an initial matter, we reject the Government’s claims that El–Mezain

and Miranda allow testimony like the testimony Agent Pecora gave in this 

case. The Government is wrong to rely on the properly admitted, more limited 

testimony in those cases as support for Agent Pecora’s much more extensive 

testimony in this case. Agent Pecora’s testimony exceeds anything we may 

have permitted in El–Mezain or Miranda. Nevertheless, because the objection 

to the bulk of the testimony was not preserved for appeal, we can only review 

its admission for plain error. 

After careful review, we hold that the district court did not plainly err in 

admitting the bulk of Agent Pecora’s testimony. In his brief, Andre states that 

this Court “has not discussed in a published opinion when a law enforcement 

officer’s testimony goes beyond interpreting drug traffickers’ jargon”; the 

Government agrees, explaining that it was unable to find “a published Fifth 

Circuit opinion addressing admissibility of inferences drawn from recorded 

conversations.” We have also been unable to find a binding case that offers 

guidance as to the admissibility of testimony like the testimony Agent Pecora 

gave in this case. Because this question was unanswered at the time of trial 

and remains unanswered now, the district court’s decision to admit the agent’s 

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testimony was not plainly erroneous. See Henderson, 133 S. Ct. at 1124–25; 

see also Puckett v. United States, 556 U.S. 129, 135 (2009) (explaining that for 

plain error to apply, “the legal error must be clear or obvious, rather than 

subject to reasonable dispute”). 

We turn next to the objected-to portion of Agent Pecora’s testimony. 

Even assuming without deciding that the court abused its discretion in 

admitting that specific testimony, any error that may have occurred was 

harmless. See United States v. Morin, 627 F.3d 985, 994 (5th Cir. 2010) 

(explaining that harmless error analysis applies even when the defendant 

objects to the district court’s decision to admit testimony). Beyond the one 

sentence of objected-to testimony, the jury considered a substantial amount of 

evidence, including the audio recordings and transcripts of the telephone calls 

that Agent Pecora interpreted before the jury. This unobjected-to evidence 

provided a more than adequate basis to support the jury’s decision in this case. 

See supra Part III(A)(2). 

Thus, we hold that the district court did not plainly err in admitting the 

bulk of Agent Pecora’s testimony and that any error in admitting the objectedto testimony was harmless. 

G. Alleged Fourth Amendment Violation

1. Standard of Review

The parties dispute whether Andre’s claimed Fourth Amendment 

violation is reviewable on appeal. While acknowledging that circuit precedent

bars him from raising his alleged Fourth Amendment violation for the first 

time on appeal without showing cause, Andre claims that cause exists for two 

reasons. First, he states that he sent a pro se letter to the district court 

explaining that he had asked his attorney to file a motion to suppress but that 

the attorney did not do so. Alternatively, he argues cause exists because his 

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trial counsel provided ineffective assistance. At the very least, Andre argues,

his Fourth Amendment claim should be reviewed for plain error.

The Government disagrees and argues that Andre’s Fourth Amendment 

claim is procedurally barred and substantively undeveloped. The Government, 

relying on United States v. Chavez–Valencia, 116 F.3d 127 (5th Cir. 1997), 

claims that Andre cannot show cause for failing to raise the suppression issue 

before the district court. In fact, the Government argues, Chavez–Valencia

specifically rejects the two grounds Andre asserts for cause.

We hold that Andre’s allegation of a Fourth Amendment violation is 

unreviewable. Despite Andre’s arguments to the contrary, Chavez–Valencia

forecloses review of his claim. In Chavez–Valencia, we held that “the failure to 

raise a suppression issue at trial forecloses a defendant from raising the issue 

for the first time on appeal.” Id. at 129. Our decision in Chavez–Valencia

specifically considered—and rejected—the two arguments Andre raises as 

cause: (1) that the waiver was not voluntary and (2) ineffective assistance of 

counsel. As to the first issue, we observed that failing to follow Rule 12 

typically is “not an intentional abandonment of the right to suppression,” but 

that waiver nevertheless had “its usual legal consequences.” Id. at 130. As to 

the second issue, we rejected the idea that ineffective assistance of counsel 

made the defendant’s Fourth Amendment claim reviewable. Id. at 134. 

“Failure to file a suppression motion does not constitute per se ineffective 

assistance of counsel,” and absent more information about why the attorney 

did not file the motion, we could not review the claim. Id. 

There is nothing in Andre’s brief that alters the rule articulated in 

Chavez–Valencia or makes it inapplicable here. While Andre filed a letter with 

the district court stating that he had asked his lawyer to file a motion to 

suppress, he sent that letter to the district court on December 30, 2011—two 

weeks after the jury had already returned a guilty verdict. Thus, the district 

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court did not have the opportunity to consider the suppression issue during the 

course of the trial. As in Chavez–Valencia, we also decline to review Andre’s 

claim that he received ineffective assistance of counsel. Though he complained 

of his counsel’s performance in his letters to the district court and during his 

sentencing hearing, the record is insufficiently developed to permit accurate 

review of this claim. 

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the district court. 

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