- 1 - United States Court of Appeals Fifth Circuit 

## FILED September 29, 2006 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________ No. 05-30811

__________________________ UNITED STATES OF AMERICA, Pl aint iff- Appellee,

versus

MELVIN LEE MAYS, Defendant-Appellant.

___________________________________________________ Appeal from the United States District Court fo r the Western District of Louisiana

___________________________________________________ Before SMITH, GARZA, and CLEMENT, Circuit Judges. EDITH BROWN CLEMENT, Circuit Judge: Melvin Lee Mays was convicted of five counts: (1) possession wit h int ent to distribute 50 or

mo re grams of cocaine base, (2) possession wit h int ent to distribute powder cocaine, (3) carrying a fir earm during a drug traf

ficking crime, (4) being a convicted felo n in possession of a fir earm, and (5) having been convicted of a crime of vio lence and being in possession of body armor. Mays was sentenced to life in prison. We affirm the conviction and sentence.- 2 - I. FACTS AND PROCEEDINGS Pol ice of ficers conducted two controlled purchases of “crack” c ocaine from an address in Shreveport, Loui siana. For the first transaction, a confidential informant allegedly purchased 0.3 grams of “crack” cocaine for $20 from a black male named “Melvin.” For the second transaction, the same info rmant purchased 0.3 grams of “crack” cocaine for $20 from a black female whom the info rmant identified as “Melvin’s mo ther.” Officer Bo Lummus of the Shreveport Police Department prepared an affidavit to apply fo r a search warrant. The magistrate judge found probable cause and issued the warrant. Pol ice fo und and seized approximately 25 grams of powder cocaine and 72 grams of “crack” cocaine, as well as fir earms, ammunit io n, a bullet proof vest, th ree digit al scales, and a measuring cup in a duffel bag identified as belo nging to Melvin Lee Mays. Mays was arrested. He filed a motion to suppress, alleging th at the search warrant was not supported by probable cause. He also filed an objection to the notice filed by the Government alleging two prior felo ny narcotics convictions and

one prior felo ny conviction fo r aggravated battery

. Mays further filed a motion to sever the felon-inpossession charges from the remaining charges and post-verdict mo tions fo r a new tri al and judgment of acquittal. Finally, Mays o bjected to an enhancement in his pre-sentence report based on a narcotics conviction he received when he was 17 years old but tried as an adult. The district court denied all of Mays’s mo tio ns and objections. Mays was convicted and sentenced to a mandatory life term on Count 1, 20 years on Count 2, five years on Count 3, ten years on Count 4, and three years on Count 5. May s timely appealed. II. DISCUSSION A. Mays’s sentence and Roper- 3 -

Mays was convicted of possession wit h int ent to distribute 50 grams or mo re of “crack” cocaine, or cocaine base, in vio lat io n of 21 U.S.C. §§ 841(a) and (b)(1)(A). Any person who violates these statutes “aft er two or m ore prior convictions for a felony drug offense have become final . . . shall be sentenced to a mandatory term of life impriso nment wit hout release.” I d. § 841(b)(1)(A). At sentencing, Mays objected to the use of his 1992 adult felo ny convictio n fo r possession of a Schedule II controlled substance, obtained in Loui siana state court when he was 17 years old, as a predicate offense for imposing a life sentence. He argues that use of this prior offense is cruel and unusual punishment under the Eighth Amendment as int erpreted in Roper v. Simmons , 543 U.S. 551 (2005). In Roper , the Supreme Court held th at the Eighth and Fourteenth Amendments prohibit impo sit io n of the death penalty on of fenders who were under 18 when their crimes were com mit ted. 543 U.S. at 578. The court reasoned in part th at the “o bjective immat urity , vulnerability, and lack of true depravity” of persons under the age of 18 made the death penalty inappropriate. I d. at 573. The Court based it s d ecision in large measure on the “special force” with which the Eighth Amendment applies when the state impo ses the ult imat e punishment of death. I d. at 568–69. Both the majo rity and dissent in Roper lo oked f or a “ national consensus” that the punishment imposed (death penalty for an individual who committed murder at age 17) contravened modern “standards of decency.” Roper , 543 U.S. at 563–67, 608–09. May s, however, has not proffered any evidence of a national consensus th at sentencing enhancements to life imprisonment based, in part, on juvenile convictions contravene mo dern standards of decency. In fact, at the federal level, sent ences are routinely enhanced under the sentencing guidelines based upon juvenile convictions, albeit no t necessarily to a life sentence. U.S. S ENTENCING G UIDELINES M ANUAL § 4A1.2(d)(2) (2004); see also- 4 -

United States v. Smith , 440 F.3d 704, 709 (5th Cir. 2006) (holding th at, since Roper concerned the Eighth Amendment ’s application to capital punishment of mino rs, it did not preclude a sentenc ing enhancement based upon juvenile convictions). There is not a national consensus that a sentencing enhancement to life imprisonment based, in part, upon a juvenile conviction contravenes modern standards of decency. Roper , therefore, is inapposite. B. Motion to sever Mays also appeals the district court’s denial of his mo tion to seve r the felon-in-possession charges. We review the denial of a mo ti on to sev er charges for abuse of discretion. S ee United States v. Bullock , 71 F.3d 171, 174 (5th Cir. 1995). Rule 8(a) of the Federal Rules of Criminal Procedure provides th at two or mo re of fenses may be charged in the same indict ment or info rmation in a separate count fo r each offense if the offenses charged “are of the same or similar character, or

are based on the same act or transaction, or are connected wi th or consti

tute parts of a com

mo n scheme or plan.” We have construed Rule 8(a) liberally to effectuate its policy of permitting initial jo inder of the defendant’s charges. United States v. Butler , 429 F.3d 140, 146–47 (5th Cir. 2005); Bullock , 71 F.3d at 174 (“Joinder of charges is the rule rather than the exception and Rule 8 is construed liberally in favor of init ial jo inder.”). Even if it is shown that initial joinder was improper,

a defendant must also demonstrate “clear, specific and com pelling prejudice th at resulted in an unfair tri al” in o rder to dem

onstrate reversible error. Bullock , 71 F.3d at 174. Our caselaw has fo cused on the requirement in Rule 8(a) th at the charged of fenses be part of the “same act or transaction,” and we have found abuse where that nexus was lacking. See Butler , 429 F.3d at 146–47 (holding th at a “t ransaction” fo r purposes of Rule 8(a) “may com prehend a series of many o ccurrences, depending not so much upon the immediat eness of their connection as upon- 5 -

their lo gical relationship”). We fo und no abuse in B ullock when a weapon was fo und in the trunk of the getaway car hours aft er a robbery. S ee 71 F.3d at 175. We reasoned that “a factfinder could infer t hat Bullock had the gun so that it would be available to him during the robbery and escape.” I d. When fir earms are fo und during the invest igation of an of fense, jo inder of the gun charges is appropri ate. S ee id. at 175 (citing United States v. Fortenberry , 919 F.2d 923, 926 (5th Cir. 1990); United States v. Park , 531 F.2d 754, 761 (5th Cir. 1976)). The transactional relationship between the charges is particularly strong here because the pol ice fo und the cocaine, firearms, ammunition, and bulletproof vest pursuant to the same search warrant. Joinder was proper. C. Sufficiency of the evidence When reviewing fo r sufficiency of the evidence, we ask whether, viewing the evidence in the light mo st favorable to the Government, a rational factfinder could have fo und the defendant guilt y beyo nd a reasonable doubt of the elements of the of fense. S ee United States v. Cain , 440 F.3d 672, 675 (5th Cir. 2006). Mays argues th at the Government did not provide sufficient evidence of int ent to distribute. The evidence presented by the Government, however, is plainly sufficient fo r a reasonable jury to find th at Mays int ended to distribute the confiscated drugs. The firearms, body armor, scales, measuring cup, and baggies all qualify as “t ool s of the trade” th at indicate th at Mays did not int end to keep the cocaine base fo r personal use. See, e.g. , United States v. Martinez , 808 F.2d 1050, 1057 (5th Cir. 1987) (noting th at “firearms are ‘tool s of the trade’ of th ose engaged in illegal drug activit ies and are highly probative in proving criminal int ent”); United States v. Munoz , 957 F.2d 171, 174 (5th Cir. 1992) (stating th at int ent to distribute may be inferred from, inter alia , the “presence of distribution paraphernalia”). Furthermore, “[t ]he form and amount of the cocaine base recovered is some- 6 -

evidence of an int ent to di stri bute.” Cain , 440 F.3d at 675. Here, the police seized approximately 25 grams of powder cocaine and 72 grams of “crack” cocaine. The powder cocaine was found divided and in plastic bags. The orchestrated purchases yielded 0.3 grams of cocaine base for $20. Assuming Mays could sell all 72 grams at th at price, the total value of the cocaine base he possessed would be $4,800. S ee United States v. Valdiosera-Godinez , 932 F.2d 1093, 1096 (5th Cir. 1991) (inferring intent from drug’s quantity, purity, and value). We have held in t he past that the mere possession of a quantity of drugs inconsistent with personal use will suffice fo r the jury to find intent to distribute. S ee United States v. Prieto-Tejas , 779 F.2d 1098, 1101 (5th Cir. 1986) (“Intent to distribute a controlled substance may generally be inferred solely from possession of a large amo unt of the sub stance.”). In P rieto-Tejas , we fo und 27.79 grams of 82 percent pure cocaine and 2.89 grams of 73 percent pure cocaine sufficient to give ri se to an inference of intent to distribute. S ee id. (int ernal quotation om it ted). Here the defendant possessed enough cocaine to make over 200 transactions similar to th e controlled buys. The Government has provided sufficient evidence fo r a reasonable jury to conclude that it has met its burden of proving intent to distribute beyond a reasonable doubt. D. Lesser-included-offense instructions A defendant is entitled to a lesser-included-offense inst ruction if “1) the elements of the lesser of fense are a subset of the elements of th e charged offense (statutory elements test), and 2) the evidence at tri al permits a rational jury to find the defendant guilt y of the lesser of fense yet acquit him of the greater.” U

nited States v. Avants , 367 F.3d 433, 450 (5th Cir. 2004). The first prong of this test, examining the elements, is reviewed de novo , while the second prong, evaluating the sufficiency of the evidence fo r a finding of guilt on the lesser-included of fense, is reviewed fo r abuse of- 7 -

discretion. See id. Mays argues th at failing t o include a lesser-included-offense instruction with respect to the quantity of drugs vio lat es Booker and United States v. Mares , 402 F.3d 511 (5th Cir. 2005), because the drug quantity represents a factual finding that the jury would need to find beyo nd a reasonable doubt. This is incorrect. A constitutional problem would arise only if the court failed to instruct the jury th at it needed to find th at the defendant possessed 50 or mo re grams of “crack” cocaine, as th at is the only element necessary fo r conviction under the statute. Here the j ury inst ructions included sufficient language. “For you to find the defendant guilty of this crime, you must be convinced that the government has proved each of the fo llo wing beyo nd a reasonable doubt

. . . Fourth: That the quantity of the substance was at least 50 g rams.” Consequentl y, the district court did not err in declining t o give a lesser-included-offense instruction as to drug quantity. Mays also argues th at he was entitled to a lesser-included-offense inst ruction for simple possession. Since Mays did not raise this objection before the trial court, we review for plain error. United States v. Arnold , 416 F.3d 349, 355 (5th Cir. 2005). For us to reverse on plain error review requires (1) error (2) th at is plain, (3) affects the substantial rights of the defendant, and (4) “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id. Possession of a controlled substance is undeniably a lesser-included of fense of possession wit h int ent to distribute. S ee United States v. Garcia-Duarte , 718 F.2d 42, 47 (5th Cir. 1983). Therefore,

we need only consider whether “the evidence would permit a jury rationally to find [the defendant] guilt y of the lesser of

fense and acquit of the greater.” I d. (quoting Keeble v. United States , 412 U.S. 205, 208 (1973)). Under plain error review, we will not reverse a conviction for failure to give a lesser-included-offense inst ruction if defense counsel’s decision in not requesting such an inst ruction- 8 -

was strategic. S ee United States v. Estrada-Fernandez , 150 F.3d 491, 495–97 (5th Cir. 1998) (noting th at, at a tri al fo r assault wit h a “dangerous weapon,” the defense fo cused totally on an alibi, rather th an on whether the weapon used was a dangerous weapon). “In deciding whether to request [a lesser-included-offense] inst ruction, defense counsel must make a strategic choice: giving the inst ruction may decrease the chance th at the jury will convict fo r the greater of fense, but it also may decrease the chance of an outright acquittal.” Estrada-Fernandez , 150 F. 3d at 496 (al teration in original and int ernal quo tati on omit ted). Here May s’s counsel made such a strategic choice and argued fo r outright acquittal. The failure to give lesser-included-offense instructions was not error. E. Motion to suppress On appeal of the denial of a mo tion to suppress evidence, we review findings of fact fo r clear

error and the ult imat e legal conclusion of constitutionality de novo

. See Ornelas v. United States , 517 U.S. 690, 699 (1996). Our deference on matters of fact extends to credibilit y judgments made by the magistrate judge and accepted by the district court. S ee United States v. Gibbs , 421 F.3d 352, 357 (5th Cir. 2005). We apply a two-step test to determ ine whether to apply the exclusionary rule: first, we ask whether the good-faith exception to the rule applies, and second, we ask whether the warrant was supported by probable cause. See United States v. Laury , 985 F.2d 1293, 1311 (5th Cir. 1993). If the good-f

ait h exception applies, then we need not inquire whether probable cause existed, unless the case presents a “novel question of law whose resol ution is necessary to guide future action by law enforcement of

ficers and magistrates.” I d. (int ernal quotation om it ted). No such novel question exists here. The Supreme Court has held th at “evidence obt ained by officers in objectively reasonable- 9 -

good-f ait h reliance upon a search warrant is admissible, even though the warrant was unsupported by probable c ause.” I

d. (citing United States v. Leon , 468 U.S. 897, 922–23 (1984)). We will uphold an officer’s good-faith reliance on a warrant unless one of four conditions apply: (1) the issuing-judge “was misled by info rmation in an affidavit th at the affiant knew was false or woul d have known was false except for his reckless disregard of the truth”; (2) the issuing-

judge “wholl

y abandoned his judicial role” in such a manner th at “no reasonably well trained of ficer should rely on the warrant”; (3) the underlying affidavit is “bare bones” (“so lacking in indicia of probable cause as to render of ficial belief in it s existence entirely un reasonable”); or (4) the warrant is “so facially deficient . . . that the executing officers cannot reasonably presume it to b e valid[.]” Gibbs , 421 F.3d at 358 (quoting Leon , 468 U.S. at 923). Mays argues for the first condition based

on testimo ny from Mays’s mo ther at the suppression hearing th at it was impo ssible fo r h er to be behind the second controlled transaction at his residence, because she lived at a separate address, was disabled, did not deal drugs, and was not present at the residence at the time. In evaluating this argument, we apply the standard from Franks v. Delaw are , 438 U.S. 154 (1978), which requires a defendant to show th at “(1) allegations in a supporting affidavit were deliberate falsehoods or made with a reckless disregard fo r the truth, and (2) the remaining portion of the affidavit is not sufficient to support a finding of probable cause.” U nited States v. Brow

n , 298 F.3d 392, 395 (5th Cir. 2002). The second prong is often decisive, because even if the defendant proves th at a statem

ent was deliberately false or made wit h reckless disregard of it s truth, he would still not prevail if the remainder of the affidavit s et f orth sufficient facts for a finding of probable

cause. See id. There is ample other evidence here–th e recorded audio transmission, the informant’s exchange of $20 fo r 0.3 grams of “crack” cocaine–that a second controlled buy occurred at the residence. Mays argues th at the confidenti al info rmant never entered the residence nor did he identify drugs- 10 -

inside the residence. However, at the suppression hearing, the magistrate judge reasonably concluded th at two controlled purchases of “crack” cocaine at the back door of a residence give ri se to probable cause to believe that contraband will be found inside. Mays also argues that the affidavit for a warrant did not contain sufficient indicia of the confidential info rmant’s credibilit y. We employ a four-part test to determine whether anonymous (or pseudonymous) information is reliable under the totality of the circumstances, including: (1) the nature of the information; (2) whether there has been an opportunity fo r the pol ice to see or hear the mat ter reported; ( 3) the v eracity and the basis of the knowledge of the info rmant; [and] (4) whether there has been any independent verification of the matters reported through police investigation. United States v. Morales , 171 F.3d 978, 981–82 (5th Cir. 1999). Here the informant told the police th at Mays’s residence was a narcotics distribution center. The controlled buys later proved this info rmation to be true, and Officer Lummus independently corroborated it th rough audio surveillance. The total it y of the circumstances suggests that the affidavit contained sufficient indication of the info rmant’s reliabilit y. Therefore, the magistrate judge correctly denied Mays’s motion to suppress. III. CONCLUSION For the above-stated reasons, Mays’s conviction and sentence are AFFIRMED.