* District Judge of the Eastern District of Louisiana, sitting by designation.

** Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should

not be published and is not precedent except under the limited circumstances set forth in

5TH CIR. R. 47.5.4.

1

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-30252

UNITED STATES OF AMERICA

Plaintiff-Appellee-Cross-Appellant

v.

OTIS CHARLES JACKSON; TRINA RAUCHELL JACKSON

Defendants-Appellants-Cross-Appellees

JOHN TIMOTHY COTTON

Defendant-Appellant

Appeals from the United States District Court

for the Western District of Louisiana

USDC No. 6:00-CR-60029-1-3

Before DENNIS and PRADO, Circuit Judges, and ENGELHARDT, District

Judge.*

PER CURIAM:**

United States Court of Appeals

Fifth Circuit

F I L E D

November 20, 2007

Charles R. Fulbruge III

Clerk
No. 05-30252

1 The six co-defendants, who are not parties to this appeal, are Jerry Palmer, Leslie

Jackson, Thomas Latchie, Lester Davis, Hughy Brown, and Roberto Guzman Ortiz (“Roberto

Guzman”). The district court granted Jerry Palmer’s motion for mistrial, and the jury

acquitted Leslie Jackson. Thomas Latchie, Hughy Brown, and Roberto Guzman all pleaded

guilty, and the district court dismissed the conspiracy charge against Lester Davis on the

2

In this drug conspiracy case, Defendants-Appellants John Cotton, Trina

Jackson (Cotton’s wife), and Otis Jackson (Cotton’s father-in-law and Trina’s

father) (collectively, “Defendants”), challenge the district court’s denial of their

motions for new trial based on newly discovered evidence. In addition, Otis

Jackson challenges the district court’s denial of his motion for new trial under

Brady v. Maryland, 373 U.S. 83 (1963), as well as the sufficiency of the evidence

for his conspiracy conviction. Finally, the United States (“the government”)

cross-appeals the sentences imposed upon Trina Jackson and Otis Jackson,

contending that their sentences of 120 months are unreasonable. For the

reasons that follow, we hold that the district court properly denied Defendants’

motions for new trial and motions for hearings on their new trial motions. In

addition, we find sufficient evidence to support Otis Jackson’s conviction for

conspiracy to possess with intent to distribute over fifty grams of cocaine base

or crack. We conclude, however, that the district court applied sentences to

Trina Jackson and Otis Jackson that were unreasonable under 18 U.S.C.

§ 3553(a). Therefore, we affirm all Defendants’ convictions but vacate the

sentences of Trina Jackson and Otis Jackson and remand to the district courtfor

resentencing consistent with this court’s opinion.

I. FACTUAL AND PROCEDURAL HISTORY

By a superseding grand jury indictment returned on November 15, 2000,

Defendants John Timothy Cotton (“Cotton”), Trina Rauchell Jackson (“Trina”),

Otis Charles Jackson (“Otis”), and six co-defendants1 were charged in a five-
No. 05-30252

government’s motion. 

2 Prior to trial, the remaining counts of the indictment were dismissed on the motion

of the government.

3

count indictment in the Lafayette-Opelousas Division of the Western District of

Louisiana. The indictment alleged conduct spanning from 1990 to 2000 and

involving the procurement and transportation of cocaine and cocaine base from

Houston, Texas, the conversion of cocaine hydrochloride into cocaine base or

crack, and the distribution of cocaine base in Louisiana, Texas, Mississippi, and

Kansas. 

Cotton was charged in all five counts of the indictment: (1) conspiracy to

possess with intent to distribute over fifty grams of cocaine base or crack in

violation of 21 U.S.C. §§ 841(a)(1), 846 (count 1); (2) possession with intent to

distribute over fifty grams of cocaine base in violation of 21 U.S.C. § 841(a)(1),

(b)(1)(A), and 18 U.S.C. § 2 (count 2); (3) conspiracy to commit money laundering

involving the proceeds of drug trafficking activity in violation of 18 U.S.C.

§ 1956(h) (count 3); (4) continuing criminal enterprise (“CCE”) in violation of 21

U.S.C. § 848 (count 4); and (5) forfeiture of all property derived from drug

proceeds to the United States under 21 U.S.C. § 853 (count 5). Trina was

charged with conspiracy, money laundering, and forfeiture (counts 1, 3, 5). Only

the conspiracy and forfeiture charges (counts 1 and 5) implicated Otis.

Defendants pleaded not guilty to the charges against them. Between July

26, 2004, and August 12, 2004, a jury trial was conducted. The government tried

Trina and Otis on the conspiracy and forfeiture charges (counts 1 and 5) and

Cotton on the conspiracy, CCE, and forfeiture charges (counts 1, 4, 5).2

At trial, the government sought to show that Cotton operated a cocaine
No. 05-30252

4

trafficking business in Houston, Texas, in which he was assisted by his wife and

co-defendant, Trina, and his father-in-law and co-defendant, Otis. The

government’s case consisted of the testimony of 106 witnesses and the

presentation of over one thousand exhibits. The government presented the

following evidence:

Cotton’s drug trafficking operation took place at the Pickfair Apartments,

where Cotton lived with Trina and their five children. Cotton sold crack and

powder cocaine from his and Trina’s apartment. Cotton also “cooked” or

converted powder cocaine into crack cocaine at his apartment, with the

assistance of “Tank” Robicheaux. Cotton’s “cooking” technique permitted him

to stretch the powder cocaine so that a kilogram of powder cocaine would yield

approximately two kilograms of crack. Otis rented an apartment next to Cotton

and Trina’s apartment, and the drug proceeds were stored in a safe located in

Otis’s apartment. 

Cotton and his associates conducted their drug business in and around two

automobile body shops owned in whole or in part by Cotton. These shops were

known as “Houston Auto Works” and “Unified Auto Works.” Cotton started

Houston Auto Works at least in part with drug proceeds and started Unified

Auto Works with co-defendant Jerry Palmer. Cotton maintained as many as

eight “crack houses” used for the distribution of illegal narcotics in and around

Houston and employed between fifteen and twenty people at these houses to sell

drugs. 

Cotton maintained a number of key relationships to assist him in his drug

operation. David Thomas functioned as Cotton’s lead associate in the early

1990s. At that time, Thomas was living near Cotton in the Pickfair Apartments

with Leslie Jackson, who is Trina’s sister and Otis’s daughter, and their
No. 05-30252

3 At trial, Guzman testified that his true name is “Rafael Fulgencio” and that

“Guzman” is an alias he used in his drug business. 

4 Thomas testified that they quit dealing drugs together because he disagreed with

Cotton’s practice of involving his wife, Trina, in his drug business. 

5

children. Prior to his relationship with Cotton, Thomas had developed a

relationship with certain individuals in the Dominican Republic, including

Roberto Guzman,3 who was Thomas’s source for powder cocaine. Guzman

became Cotton’s supplier when Thomas and Cotton began trafficking drugs

together. Guzman supplied Cotton with twelve to fourteen kilograms of powder

cocaine each week. According to Guzman’s testimony, this quantity increased

after 1993 because Cotton had developed major clients outside of Houston.

Guzman also testified that he sold drugs to Cotton on credit. 

Guzman delivered the cocaine either to Cotton and Trina’s apartment or

to Thomas and Leslie’s apartment. He testified that sometimes when he

delivered the cocaine, he saw Trina at the apartment, and that if Cotton was

unavailable, he would leave the drugs with her. Guzman also testified that

when he went to the Pickfair Apartments to pick up his payment, Cotton

retrieved the money from a safe located inside Otis’s apartment. Otis was

present on at least one occasion when this happened. 

After Thomas and Cotton had a falling out and quit dealing drugs

together,4 Glenn “Slim” Bailey (“Bailey”) began assisting Cotton in his drug

operation. Bailey assisted Cotton with cooking the crack cocaine, conducting

transactions with buyers on his own or with Cotton, and picking up drug

couriers at the airport and transporting them either to Cotton’s apartment or to

Houston Auto Works for drug transactions. 

On December 9, 1993, Cotton and Bailey were stopped by Houston police
No. 05-30252

6

after narcotics officers observed them engage in hand-to-hand drug transactions.

As a result of the stop, officers found approximately $10,000 in cash, $7,500 in

traveler’s checks, two firearms, and 26.3 grams of cocaine. According to the

government, Cotton and Trina were concerned that Cotton would be

incarcerated for a significant period of time, so Bailey took responsibility for the

drugs. 

Cotton and Trina were involved with “the Macara,” an organization in the

Dominican Republic that used “white magic” to invoke the protection and

guidance of “spirits.” Cotton became involved in the Macara through Guzman,

who introduced Cotton to Maria Peralta and her husband, Jose Matos. Cotton

and some other individuals involved in Cotton’s drug operation each paid $8,500

to join the Macara. As part of the initiation ritual held in Houston, Peralta

invoked the protection of the spirits for Cotton’s organization against certain

named law enforcement officers. Cotton and one of his co-conspirators, Dexter

Harmon (one of Cotton’s Louisiana buyers, discussed below), traveled to the

Dominican Republic to participate in a special Macara cleansing ceremony after

turmoil broke outin Cotton’s organization as a result of allegations by Trina that

a courier was stealing drug proceeds. In order to participate in the special

ceremony, Cotton and Harmon paid Peralta an additional $17,000. Sometime

subsequent to this special ceremony, Cotton, Trina, Guzman, Harmon, and one

of Harmon’s couriers named Oris “Soul Man” Boudreaux attended a festival in

the Dominican Republic held at Peralta’s house in honor of the Macara spirits.

Cotton had extensive clientele in Texas. Tron Washington purchased

cocaine from Cotton, initially in smaller quantities but later in amounts up to a

kilogram. In addition, Derrick Taylor began buying cocaine from Cotton in 1996

at the Pickfair Apartments and the body shops. On at least one occasion, Trina
No. 05-30252

7

facilitated a drug transaction between Taylor and Cotton; on another occasion,

Taylor negotiated with Otis for the purchase of a kilogram of powder cocaine, but

the deal never went through. 

Cotton’s Texas buyers also included Ronald Floyd, who bought eighteen

ounces of crack from Cotton at Houston Auto Works twice a month for a period

of six months in 1996, and Damien Porter from Pittsburgh, Texas, who on three

occasions in 2000 met Cotton in Huntsville, where Cotton converted a kilogram

of powder cocaine into 1.5 kilograms of crack. In addition, Cotton distributed

significant quantities of cocaine to individuals in Austin, Texas, including

Sedrick McArthur, who bought sixty-three ounces of crack cocaine from Cotton

in 1995 in four separate transactions, and Aubry Hart, who purchased ten

kilograms of cocaine from Cotton over the course of seven different transactions

in 1996. 

At least one of the individuals in Cotton’s organization dealt exclusively

with Trina. Regina Booker purchased crack from Trina on ten occasions in 1993

and 1994. The deals took place at the Pickfair Apartments, and each involved

Booker’s purchase of about twenty-eight grams of crack. 

In addition to Cotton’s Texas buyers, he maintained a significant drug

distribution network in Louisiana. Merrick Young headed up one of Cotton’s

networks in Morgan City, Louisiana. Young used several couriers (including

Eric Daniel, Patrick May, Adrienne May, Aldon Johnney, Marlon Haynes,

Robert Bourgeois, and Chad Jones) to transport drugs from Cotton’s Pickfair

apartment or body shops in Houston to Morgan City. 

Young used vehicles with hidden compartments to transport the drugs,

including a blue Cutlass and a 1986 Buick Riviera, the latter of which was

originally owned by Guzman. These vehicles were involved in various traffic
No. 05-30252

8

stops by Louisiana law enforcement. On June 27, 1994, police stopped Young

near Morgan City and, using a drug sniffing dog, found a hidden compartment

with $2,800 and a business card for Houston Auto Works. On November 16,

1995, police stopped Young’s blue Cutlass, which was being driven by Robert

Bourgeois, and found $23,760 in a secret compartment. On December 14, 1994,

police again stopped Young, this time driving a green and white Chevrolet

pickup truck, registered in Cotton’s name, which also contained a secret

compartment. 

Dexter Harmon was another one of Cotton’s significant drug customers in

Rayne, Louisiana. Harmon met Cotton in late 1994 through Cotton’s halfbrother, Edwin Cotton. Harmon initially purchased his drugs from Edwin, who

had obtained them from Cotton. However, after Cotton and Edwin had a falling

out, Harmon began purchasing his supply directly from Cotton. 

In early 1995, Cotton organized a meeting at Harmon’s house to discuss

setting up a drug transportation system along Interstate 10. Among those

present were Cotton, Harmon, Young, and Guzman. The parties agreed that one

of Young’s couriers, Robert Bourgeois, would pick up drugs for Harmon in

Houston and drop them off in Rayne. On the first trip, Bourgeois successfully

dropped off 1.5 kilograms of crack cocaine in Rayne that he had picked up in

Houston, but was stopped on the return trip by Louisiana police. The police

seized $23,760, Harmon’s payment to Cotton for the cocaine. Because of the loss

of his payment, Harmon stopped using the transportation system involving

Young’s courier. 

Harmon continued to buy cocaine from Cotton using his own courier,

Boudreaux. Boudreaux testified that he made monthly trips to Houston to pick

up kilograms of crack, which were, according to what Harmon told him, supplied
No. 05-30252

5 This is a large crack cookie that weighs approximately 4.5 ounces. 

9

by Cotton. Boudreaux picked up drugs at Houston Auto Works, where he would

drive around to the back of the shop and exchange cash for approximately two

kilograms of crack per trip. He received the drugs from one of four or five

different individuals who worked at the body shop. Although Boudreaux never

received cocaine directly from Cotton, he observed Cotton at the shop during

these transactions. 

As discussed above, Harmon participated in the Macara organization

activities along with Cotton, Trina, Guzman, and Boudreaux. At some point,

Cotton advised Harmon that Maria Peralta, the Macara spiritualist, had stolen

a large shipment of cocaine belonging to some Dominicans. Harmon received the

bulk of the 200 to 250 kilograms stolen from this shipment. He assisted Cotton

in delivering a portion of the proceeds from the sale of this stolen cocaine to

Peralta by collecting as many $100 bills as he could. Harmon later witnessed

this money being hidden in the roof of a Maxima automobile, which was later

shipped to the Dominican Republic. Harmon testified that on one of his trips to

the Dominican Republic, he saw the Maxima parked in Peralta’s driveway.

In addition to Young and Harmon, Cotton’s customers in Louisiana

included Frager Ford, a distributor in Shreveport, Louisiana, who bought “big

eight”5 quantities of crack cocaine once a month in 1995 from Cotton at his

apartment or Houston Auto Works, and Lester Davis, who distributed the drugs

he purchased from Cotton in Alexandria, Louisiana. 

Cotton also supplied drug dealers in Hammond, Louisiana, including Sam

and Jeffrey Michelli. Jeffrey Michelli testified that he would set up drug

transactions by calling Cotton and, on occasion, he would speak to Trina about
No. 05-30252

10

what he needed. The transactions themselves were conducted at Cotton and

Trina’s apartment. Jeff Michelli testified that he occasionally observed Otis

outside the apartment when he went to conduct his drug transactions. Trina

was present when Cotton counted the money and when the drugs were

exchanged. Jeffrey also testified that Trina took the counted money from Cotton

and put it away in a bedroom. In 1994, Sam Michelli was stopped and arrested

while he was transporting drugs he had obtained from Cotton. 

Some of the drug dealers in north and central Louisiana purchased their

drugs directly from Otis. Otis’s buyers included Todd Phillips, who purchased

a half kilogram of crack at the Pickfair Apartments twice in 1998, and Ellery

Elie, who regularly bought up to one kilogram of powder cocaine once or twice

a month from 1998 to 2000. 

In addition to theLouisiana clientele, Cotton had customers in Mississippi.

Luther Martin of Jackson, Mississippi, and Bruce Betts of Hattiesburg,

Mississippi, both purchased cocaine from Cotton. Martin used several drug

couriers to transport the drugs he bought from Cotton. When Martin purchased

large quantities of crack from Cotton, these transactions were consummated at

a motel on the south side of Houston. On several occasions, Trina delivered the

drugs to Martin or his courier at the motel. 

Betts became involved with Cotton through two of Martin’s couriers,

Buford Jefferson and Eddie McGee. Betts used Donna Burns and Kevin

Newsome as his drug couriers. On December 6, 1993, Burns and Betts were

arrested in the New Orleans airport after agents found twelve crack cocaine

cookies taped to Burns’s body. On May 26, 1995, Newsome was arrested in the

same airport after a 0.25 kilogram of cocaine was found in his boot. These drugs

came from Cotton. 
No. 05-30252

6 Brown came to know Cotton in an interesting way. While Brown was attending

college in Wichita, Kansas, he learned that Houston was a major source city for drugs by

conducting research at the school library. In 1994, he quit his job and drove to Houston to

find a new drug source. After pursuing a series of leads, he met Glenn Bailey, and at some

point, Bailey introduced Brown to Cotton. 

11

Cotton also maintained a drug operation in Kansas. Hughy Brown

traveled to Houston between one and three times a month.6 When he dealt

directly with Cotton,the drug transactions were conducted either atthe Pickfair

apartment, Houston Auto Works, or another house Cotton and Trina owned on

Bell Street. 

Brown testified that he dealt with Trina when Cotton was unavailable.

On these occasions, Trina would receive Brown’s payment or deliver the drugs,

either at the Pickfair Apartments or Houston Auto Works. Brown also testified

that on one occasion when he was at the Pickfair Apartments, he observed Otis

handling jars and beakers in which crack cocaine was being cooked. 

Brown testified that he paid cash the first year he bought drugs from

Cotton, but subsequently, Cotton sold drugs to him on partial credit. Brown

testified that he paid the balance by personally delivering payment or by sending

Cotton a cashier’s check. On one occasion, Brown wired $4,500 to Cotton using

Western Union. 

Photographs and telephone and wire transfer records supported the trial

testimony of numerous witnesses. According to the telephone records, 246 calls

were made between telephone numbers listed in Cotton’s name and numbers

listed in the name of Dexter Harmon or his business, and 246 calls were made

between numbers listed in Cotton’s name and those listed to either Hughy

Brown or Brown’s wife, Rhonetta Jones. The records also revealed fourteen calls

from Cotton to Oris Boudreaux (Harmon’s courier) and seventy-two calls from
No. 05-30252

7 Because of Cotton’s conviction on the CCE charge, the district court granted the

government’s motion to dismiss the conspiracy count against Cotton to avoid double

jeopardy issues.

12

Boudreaux to Cotton.

The wire transfer records confirmed that numerous individuals wired

money to Cotton, Trina, or Otis. Cotton received ten wire transfers in his name

totaling $26,938 from Dexter Harmon, Edwin Cotton, Merrick Young, Rhonetta

Jones (Hughy Brown’s wife), and others. Trina received six wires totaling

$11,060 from Rhonetta Jones, Lester Davis, Merrick Young, and other

individuals. Otis received fifteen wires totaling $42,160 from Jercy Davis, John

Jackson, Lester Davis, and others. 

On August 10, 2004, the government rested its case-in-chief. Defendants

orally moved for judgments of acquittal, which the district court denied.

On August 12, 2004, the jury returned guilty verdicts against Cotton,

Trina, and Otis on the conspiracy charge and a guilty verdict against Cotton on

the CCE charge.7 The jury also returned a forfeiture verdict against Cotton and

Trina in the amount of $12 million.

On August 18, 2004, Cotton filed a motion for a judgment of acquittal as

to the CCE count asserting insufficient evidence, and on August 19, 2004, he

filed a motion for new trial on the same ground. On August 19, 2004, Otis

moved for a judgment of acquittal, or alternatively for a new trial based on

insufficient evidence. The district court denied these motions.

On October 26, 2004, the probation office issued its pre-sentence report

(“PSR”). Using the November 5, 2003, version of the United States Sentencing

Guidelines (“U.S.S.G.”), the PSR concluded that Trina’s Criminal History

Category I and her offense level of 38 correlated to a sentencing range of 235 to
No. 05-30252

8 The district court initially convened a sentencing hearing on December 10, 2004,

but it recessed in order to wait for the Supreme Court’s anticipated ruling in United States

v. Booker, 543 U.S. 220 (2005).

9 On July 5, 2006, the Solicitor General granted written permission for the

government to pursue its cross-appeal. See 18 U.S.C. § 3742(b).

13

293 months. The PSR recommended a sentencing range of 262 to 327 months

for Otis based on his offense level of 38 and his Criminal History Category II.

Although Otis did not file any objections to the PSR, Trina objected on two

grounds. First, Trina asserted that she was entitled to a reduction under

U.S.S.G. § 3B1.2 for her minor or minimal role in the offense. Second, she

requested a downward departure from the Guidelines based on her lack of a

criminal record and her status as a mother. The probation officer recommended

that the district court overrule both of Trina’s objections.

On January 26, 2005,8the district court sentenced Cotton to life

imprisonment. After overruling Trina’s objections to the PSR, the district court

announced thatit was going to deviate from the sentencing ranges recommended

by the PSR for both Trina and Otis. The district court then sentenced both Trina

and Otis to serve 120 months in prison and five years of supervised release. The

government orally objected to both sentences.

On February 4, 2005, Cotton and Trina filed motions for new trial based

on newly discovered evidence in the form of affidavits from eight inmates at the

Federal Correction Center (“FCC”) in Beaumont, Texas. On February 24, 2005,

Otis filed a motion for new trial on the same ground. On August 1, 2005, the

district court denied Defendants’ motions for new trial. 

The parties filed timely notices of appeal.9 We have jurisdiction over these

appeals under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(b). 
No. 05-30252

10 The eight affiants are Albert Duvall, Gregory Lewis, Anthony Coleman, Marquez

Jones, Fedell Anderson, Purvis Cartwright, Brian Garrett, and Elluard Jackson. This new

evidence was allegedly discovered by Dick DeGuerin, counsel for Jerry Palmer, the former

co-defendant who was granted a mistrial. DeGuerin obtained the eight affidavits in

support of his claim for attorney’s fees under the Hyde Amendment. 

14

II. DISCUSSION

A. New Trial Motions: Newly Discovered Evidence

1. Parties’ Arguments

Defendants argue that the district court abused its discretion in denying

their motions for new trial based on newly discovered evidence under Federal

Rule of Criminal Procedure 33(b)(1). This “newly discovered evidence” consists

of affidavits by eight persons currently or formerly incarcerated in the FCC in

Beaumont, Texas.10 Collectively, the affidavits assert that a large group of

inmates at the Beaumont FCC known as the “Hot Boyz” falsely testified in

criminal trials in exchange for reduced sentences. According to the affidavits,

the Hot Boyz received photographs and background information on people who

were being investigated or who had been indicted from newspapers in the prison

library and through the mail. The affiants allege that the Hot Boyz shared this

information with other Hot Boyz, thereby permitting a Hot Boy to testify in a

trial even if he did not know the individual being prosecuted. The affidavits

maintain that the Hot Boyz contacted federal prosecutors and made up stories

on those being prosecuted. According to the affidavits, it was common

knowledge at the Beaumont FCC that the federal prosecutor in Lafayette,

Louisiana, was giving time cuts to people who testified for him in court. Among

the persons whom the affiants alleged to be Hot Boyz were David Thomas,

Ernest Hamilton, Kenneth Coleman, Huey Jones, Donald Bell, Bill Davis, James

Murphy, Tron Washington, Eric Daniels, and Bradford Earl Young. Seven of
No. 05-30252

11 Trina does not make this argument in her brief.

15

these men testified at Defendants’ trial.

Defendants argue that the testimony of the Hot Boyz witnesses was

crucialto the government’s case. Defendants assert that without this testimony,

the government would not have been able to prove the elements of the charges

against them. Both Cotton and Trina specifically object to the testimony of

David Thomas, an alleged Hot Boyz witness. Cotton argues that Thomas’s

testimony was critical in finding him guilty of engaging in a CCE because only

Thomas testified that Cotton had committed the alleged drug conspiracy in

concert with five or more persons, over whom he exercised a managerial or

supervisory role. Trina submits that Thomas’s testimony was critical in

convicting her of the alleged drug conspiracy because Thomas testified that he

disagreed with Cotton’s practice of involving his wife in his drug business.

Otis does not complain about any specific Hot Boyz witness, but generally

contends that the testimony introduced by the government was tainted, thus

entitling him to a new trial. In addition, both he and Cotton11 point out that the

district court granted a new trial in United States v. Colomb, 448 F. Supp. 2d

750 (W.D. La. 2006), an unrelated drug conspiracy case involving some of the

same Hot Boyz witnesses. There, the district court based its decision to grant

a new trial on a letter that an inmate had written to a federal prosecutor, in

which the inmate alleged that one of the government’s witnesses had offered to

sell him pictures of some of the defendants in Colomb for the sum of $2,200. Id.

at 753-56. The district court concluded that because the jury did not know about

the inmate’s letter, the jury did not have all the “information necessary to

evaluate the credibility ofthe governmentinmate witnesses” and as a result,the
No. 05-30252

16

defendants in Colomb were “denied their basic right to a fair trial.” Id. at 756.

In a postscript to its ruling, the district court noted that since trial, one of the

defendants had obtained an affidavit from another inmate alleging that some of

the witnesses called by the governmentto testify againstthe Colombs, including

Dexter Harmon (a government witness in this case), were sharing information

in the Colomb case. Id. at 756-57. Also in its postscript, the district court noted

that “[i]ssues that have arisen in this case—before trial, during trial and after

trial—are troubling. . . . [O]ccurrences in this case suggest that a systemic

problem may exist within the penal facilities operated by the Federal Bureau of

Prisons.” Id. at 757. Both Otis and Cotton argue that this case is similar

enough to Colomb and involves the same concerns about witness collusion (and

indeed a common witness, Dexter Harmon) expressed by the district court in

Colomb, to warrant a new trial.

2. Standard of Review

We review the district court’s denial of a motion for new trial based on

newly discovered evidence for abuse of discretion. United States v. Erwin, 277

F.3d 727, 731 (5th Cir. 2001). “Motions for new trial based on newly discovered

evidence are ‘disfavored and reviewed with great caution.’” United States v.

Wall, 389 F.3d 457, 467 (5th Cir. 2004) (quoting Erwin, 277 F.3d at 731). To

receive a new trialfor newly discovered evidence,the defendant must prove that:

(1) the evidence is newly discovered and was unknown to the

defendant at the time of trial; (2) failure to detect the evidence was

not due to a lack of diligence by the defendant; (3) the evidence is

not merely cumulative or impeaching; (4) the evidence is material;

and (5) the evidence introduced at a new trial would probably

produce an acquittal.

United States v. Infante, 404 F.3d 376, 387 (5th Cir. 2005) (internal quotation
No. 05-30252

17

marks omitted). “If the defendant fails to demonstrate any one of these factors,

the motion for new trial should be denied.” Wall, 389 F.3d at 467.

3. Analysis

The district court denied Defendants’ motions for new trial because it

determined that Defendants could not prove all of the factors necessary to

receive a new trial. Specifically, the district court concluded that the affidavits

were “merely impeachment evidence” and that“this impeachment evidence does

not have any tendency to undermine the outcome at trial.” The district court

further held “that in light of the overwhelming evidence presented at the threeweek trial of defendants, and the questionable credibility of the affiants’

proffered testimony, a new trial would probably not result in an acquittal of any

of these three defendants.”

We conclude that the district court did not abuse its discretion in denying

Defendants’ motions for new trial because Defendants cannot satisfy all five of

the factors required for a new trial based on newly discovered evidence. See

Wall, 389 F.3d at 467. Specifically, Defendants cannot prove that the evidence

is not merely cumulative or impeaching or that the evidence would probably

produce an acquittal if introduced at a new trial. See Infante, 404 F.3d at 387.

First, as the district court concluded and the government argues, these

affidavits are merely impeachment evidence. In reviewing the affidavits, it is

clear that they could be used to challenge only the veracity of the Hot Boyz

witnesses’testimony. The affidavits do not purport to exonerate Defendants, but

rather contain vague allegations about witness collusion. Further, none of the

affidavits specifically alleges that any of the Hot Boyz witnesses fabricated or
No. 05-30252

12 The only person identified in the affidavits by name against whom testimony was

supposedly fabricated was Jerry Palmer, whose case was severed from Cotton and the

Jacksons early in the trial and against whom charges were ultimately dismissed on the

motion of the government.

18

provided false testimony against Cotton, Trina, or Otis.12 Accordingly, this “new

evidence” is merely impeachment evidence and thus insufficient to entitle

Defendants to a new trial. See Wall, 389 F.3d at 470; see also United States v.

Pena, 949 F.2d 751, 758 (5th Cir. 1991) (“Evidence which merely discredits or

impeaches a witness’ testimony does not justify a new trial.”). 

Second, Defendants cannot show that the affidavits are not merely

cumulative evidence. The record reflects that all of the Hot Boyz witnesses who

testified at trial were cross-examined by at least one defense attorney—and

sometimes more than one—about various topics related to possible witness

collusion. The record reflects that these questions included (as summarized by

the government): 

whether they were ever housed at the same facility with other

[government] witnesses, whether they received a packet of grand

jury testimony or lineup photos from the prosecutor before trial, the

contents of which could be shared with or viewed by other witnesses,

whether they in fact discussed this case with fellow inmatewitnesses, whether they ever observed photographs of the

defendants being passed around the prison, and whether they had

ever heard other inmates talk about receiving sentence reductions

in exchange for testimony.

Thus, defense counsel already had an opportunity to cross-examine the alleged

Hot Boyz witnesses on these points, effectively putting the issue of witness

collusion before the jury. Any further exploration of these questions would be

cumulative.

Third, as the district court concluded and as the government argues,
No. 05-30252

13 Ernest Hamilton, another Hot Boy, testified only with regard to drug transactions

with Jerry Palmer and specifically denied ever dealing directly with Cotton.

19

Defendants cannot prove that the affidavits would have probably produced an

acquittal if introduced at a new trial. The testimony of the seven Hot Boyz

witnesses does not appear to be critical in sustaining Defendants’ convictions for

at least two reasons. First, the Hot Boyz witnesses either provided very limited

testimony or provided testimony limited to certain time periods of the alleged

ten-year conspiracy. Bradford Young, Eric Daniels, and Tron Washington

offered very limited testimony regarding transactions with Cotton, and they did

not testify against Trina or Otis.13 The testimony of Bill Davis and David

Thomas, who provided more substantial testimony against Defendants, was

limited to certain time periods of the alleged ten-year conspiracy (Bill Davis: six

months in 1994-95; David Thomas: stopped trafficking with Cotton in 1994).

Second, for those Hot Boyz who provided more substantial testimony, their

testimony was corroborated by the testimony of government witnesses who are

not alleged to be Hot Boyz. Derrick Taylor, Sam Michelli, Jeffrey Michelli, and

Roberto Guzman identified David Thomas as being involved in Cotton’s

operation. Similarly, Patrick May, Edwin Cotton, Willie Senegal, and Jason

Senegal confirmed Bill Davis’s involvementin the conspiracy. Thus, Defendants’

association with some of the alleged Hot Boyz witnesses was confirmed by

government witnesses who had nothing to do with the Hot Boyz. 

Even without the testimony of the Hot Boyz witnesses, there is

considerable evidence of Defendants’ guilt. Reflecting this fact, the district court

concluded that, “in light of the overwhelming evidence presented at the threeweek trial . . . a new trial would probably not result in an acquittal of any of
No. 05-30252

20

these three defendants.” A review of the evidence confirms the district court’s

conclusion that there is ample evidence even outside of the disputed testimony.

Cf. Wall, 389 F.3d at 471-72 (finding considerable evidence of the defendant’s

guilt outside of the disputed testimony). 

The essential elements of a drug conspiracy are that the defendant “(1)

agreed with at least one other person; (2) possessed with the intent to distribute

a controlled substance; (3) knew the conspiracy existed; and (4) participated

intentionally in the conspiracy.” United States v. German, 486 F.3d 849, 852

(5th Cir. 2007). For Trina’s conspiracy conviction, there is sufficient evidence of

Trina’s guilt even without David Thomas’s testimony. The government

presented evidence that Trina was at her shared apartment with Cotton when

cocaine was delivered and when drug purchases were consummated (testimony

of Roberto Guzman and Jeffrey Michelli), that Trina was there to receive the

drugs and drug money (testimony of Roberto Guzman, Jeffrey Michelli, and

Hughy Brown), and that if Cotton was unavailable, Trina filled in for him

(testimony of Roberto Guzman, Derrick Taylor, Jeffrey Michelli, Luther Martin,

Hughy Brown, and Aldon Johnney). In addition, Regina Booker testified that

she dealt exclusively with Trina and purchased crack from Trina at the Pickfair

Apartments on ten occasions in 1993 and 1994. This testimony was corroborated

by photographs of Trina with the witnesses,telephone records, and wire transfer

documents.

There is also sufficient evidence to support Otis’s conspiracy conviction,

even without the testimony of Hot Boyz witnesses. The government set forth

evidence that Otis was present atthePickfair Apartments when drug deals were

consummated (testimony of Roberto Guzman and Jeffrey Michelli), that on one

occasion, Otis was observed handling jars and beakers in which crack cocaine
No. 05-30252

21

was being cooked (testimony of Hughy Brown), and that the safe with the drug

proceeds was located inside of Otis’s apartment (testimony of Roberto Guzman).

Moreover, Todd Phillips and Stephen Taylor, neither of whom is an alleged Hot

Boy,testified thatthey purchased crack from Otis. Phillips testified that his two

transactions were consummated atthe Pickfair Apartments in 1998, and Taylor

testified that he purchased between eighteen ounces and one kilogram of crack

from Otis on four occasions in early 1997. This testimony was corroborated by

wire transfer documents, which confirmed that Otis received fifteen wires from

known co-conspirators. 

For Cotton’s CCE conviction, the government must prove beyond a

reasonable doubt that, inter alia, Cotton organized, supervised, or managed at

least five persons who acted in concert with him. See 21 U.S.C. § 848(c); United

States v. Fuchs, 467 F.3d 889, 903 (5th Cir. 2006). “The ‘in concert with’

requirementimplies that the five individuals must have agreed to participate in

the criminal enterprise. Thus, an innocent participant acting without criminal

intent cannot be counted as one of the five individuals in the CCE.” Fuchs, 467

F.3d at 903 (internal citations omitted). 

The defendant may possess managerial authority over an individual for

purposes of the CCE statute even if that person worked for one of the

defendant’s subordinates: “The fact that [the defendant] did not directly control

the actions of many of these individuals is irrelevant; that their actions were

directly supervised or managed by individuals to whom [the defendant]

delegated authority indicates that [the defendant] organized, supervised, or

managed them for purposes of § 848.” United States v. Garcia Abrego, 141 F.3d

142, 165 (5th Cir. 1998).
No. 05-30252

22

In counting the five or more persons under the CCE statute, the

government must have shown that the defendant had more than a mere buyerseller relationship. See United States v. Bass, 310 F.3d 321, 327 (5th Cir. 2002).

“[D]efendants have been found to possess the level of control prescribed by the

CCE statute—and thus to go beyond a mere buyer-seller relationship—when

they rented vehicles for others selling drugs, used salesmen to distribute drugs,

used enforcers, used drug couriers, provided financial and logistical support to

suppliers and purchasers, and used collection agents to obtain drug payments.”

Id. (internal citations omitted).

We find ample support for the district court’s conclusion that a new trial

would probably not result in Cotton’s acquittal of his CCE conviction. In

addition to the disputed testimony of David Thomas, the government presented

the following evidence to show that Cotton directed the activities of five or more

individuals:(1) Trina acted on Cotton’s instructions and filled in for Cotton when

he was unavailable (testimony of Roberto Guzman, Derrick Taylor, Jeffrey

Michelli,Luther Martin, Hughy Brown, and Aldon Johnney); (2) Otis stored drug

proceeds for Cotton in his apartment, sold drugs supplied by Cotton, and

handled jars and beakers in which cocaine was being cooked (testimony of

Roberto Guzman and Hughy Brown); (3) “Tank” Robicheaux cooked cocaine at

Cotton’s direction (testimony of Roberto Guzman and Frager Ford); (4) Glenn

Bailey met drug couriers at the airport and transported them to the body shop

to pick up drugs from Cotton; and (5) Dexter Harmon traveled to Kansas on

behalf of Cotton to negotiate a new cocaine price with Hughy Brown, attended

a meeting that Cotton organized to set up a drug transportation system along

Interstate 10, and gathered money at Cotton’s direction to pay Maria Peralta for

stolen cocaine. The government submitted evidence that because Cotton
No. 05-30252

23

directed the activities of Dexter Harmon, Cotton also directed the activities of

Harmon’s subordinates, Oris Boudreaux, Bill Davis, Jason Senegal, and Willie

Senegal. See Garcia Abrego, 141 F.3d at 165. Finally, the government

introduced evidence that Cotton directed the activities of a number of unnamed

individuals based on the following evidence: (1) Oris Boudreaux testified that

when he went to Houston Auto Works to pick up drugs, one of four or five

different individuals would let him into the fenced area in the back of the body

shop and would exchange the drugs for cash; (2) Roberto Guzman testified that

Cotton maintained between seven and eight crack houses; (3) Kevin Newsome

testified that on one trip to pick up drugs, he was met at the hotel by a woman

other than Trina; (4) Bruce Betts testified that when he called the body shop to

place an order for drugs, he would speak to different individuals; and (5)

Anthony Burgess testified that on his first trip to the body shop, he observed

multiple individuals hanging around Cotton and helping him cook crack. In

light of all of this evidence, there is sufficient support for Cotton’s CCE

conviction, even withoutthe testimony of David Thomas and the other Hot Boyz

witnesses.

Finally, Cotton and Otis’s argument regarding the district court’s ruling

in Colomb does not lend any additional support to their argument that the

district court abused its discretion. In Colomb, the district court based its

decision to grant a new trial on the existence of an inmate letter containing

specific information about a government witness. Colomb, 448 F. Supp. 2d at

753-56. There is no inmate letter in this case, and the inmate affidavits, as

discussed above, do not contain any allegations that the government witnesses

in this case fabricated or falsified testimony or shared information against
No. 05-30252

14 The government notes that Harmon’s testimony in this case is corroborated by

that of his courier, Oris Boudreaux, and other witnesses such as Roberto Guzman, Willie

Senegal, Jason Senegal, Robert Bourgeois, and Edwin Cotton, and with photographs,

money orders, wire transfers, passport entries, and telephone records.

24

Cotton, Trina, or Otis specifically. 

In addition, although the district court’s postscript in Colomb mentions

Dexter Harmon (a witness in this case) as one of the government witnesses

sharing information, the district court in Colomb did not make any specific

findings on Harmon or indicate whether he was involved in information sharing

in any other case, including this one. Id. at 756-58.14

Even if this court were to consider the proceedings in an unrelated

prosecution as “new evidence” to support Defendants’ motion for new trial,

Defendants still have not established that these proceedings, if introduced at a

new trial, would probably produce an acquittal. Accordingly, we hold that the

district court did not abuse its discretion in denying Defendants’ motions for new

trial based on newly discovered evidence. 

B. New Trial Motions: Denial of Hearing

Trina summarily asserts in her brief that the district court abused its

discretion in denying a hearing on her motion for new trial. In his brief, Cotton

adopts the arguments of his co-defendants, so presumably he is making this

same argument. 

We review the district court’s decision to deny a motion for new trial

without a hearing for abuse of discretion. United States v. Blackthorne, 378F.3d

449, 455 (5th Cir. 2004). “Generally, a motion for new trial may be decided upon

affidavits without an evidentiary hearing.” Id. at 455-56 (internal quotation

marks omitted). The need for a hearing is especially diminished when the judge
No. 05-30252

25

who rules on the motion for new trial is the same judge who presided over the

trial and observed the witnesses testify. See id. at 456 n.10.

The district court here tried the case and heard the post-trial motions, so

it had familiarity with the witnesses and the evidence, which amounts to

personal knowledge that can ordinarily substitute for an evidentiary hearing.

Cf. id. at 456. Because Trina and Cotton have offered no argument to justify

deviation from this general rule, we conclude that the district court did not

abuse its discretion in denying a hearing on the motions for new trial.

See United States v. Runyan, 290 F.3d 223, 248 (5th Cir. 2002).

C. New Trial Motion: Otis Jackson’s Brady Claim

In his reply brief, Otis characterizes the newly discovered evidence

underlying his motion for new trial as evidence that should have been produced

by the government under Brady v. Maryland, 373 U.S. 83 (1963), and Kyles v.

Whitley, 514 U.S. 419 (1995). According to Otis, the federal prosecutor in this

case knew that the testifying inmates were circulating information about

pending prosecutions, including photographs of the defendants, line-ups, and

indictments. Otis argues that the government had a constitutional obligation

under Brady to disclose any communications with jailhouse informants. Otis

contends that before ruling on his motion for new trial, the district court should

have conducted an in camera inspection ofthe government’s files for letters from

prisoners offering their testimony in exchange for reduced sentences. The

government did not respond to this argument in either of its briefs, but at oral

argument, the government’s attorney denied that prosecutors had any

knowledge, at the time of trial, of improper communications involving

government witnesses.
No. 05-30252

26

This court reviews the district court’s denial of a motion for new trial de

novo if the reason for the new trial motion is an alleged Brady violation.

Runyan, 290 F.3d at 247. Brady claims are reviewed using a three-part test,

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

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

evidence was materialto either guilt or punishment.” Id.(citing Brady, 373 U.S.

at 87). “Evidence is material under Brady when there is a ‘reasonable

probability’ that the outcome of the trial would have been different if the

evidence had been disclosed to the defendant.” Id. (citing United States v.

Bagley, 473 U.S. 667, 682 (1985)). “A ‘reasonable probability’ is established

when the failure to disclose the suppressed evidence ‘could reasonably be taken

to put the whole case in such a different light as to undermine confidence in the

verdict.’” Id. (quoting Kyles, 514 U.S. at 435). Accordingly, in order to prevail

on this claim,“the defendant must establish that the suppression of exculpatory

evidence by the government undermines confidence in the outcome of the trial.”

Id. (internal quotation marks omitted).

Otis maintains that there can be no doubt that the government’s files

contain communications with inmate witnesses because the inmate witnesses

admitted to writing the prosecutor and offering their testimony. Even if Otis’s

speculation about the contents of the government’s files turned out to be true,

his Brady claim still lacks merit.

First, at least one government inmate witness (Stephen Taylor) admitted

at trial to writing the federal prosecutor and offering to testify. Accordingly,

Otis’s defense counsel could have obtained the information contained in any

inmate-government correspondence by further cross-examining the government
No. 05-30252

15 We observe that Otis did not raise this argument in his opening brief, cf. United

States v. Fields, 483 F.3d 313, 352 n.36 (5th Cir. 2007) (concluding that since the defendant

did not raise his attorney misconduct-accusation claim in his opening brief, it “is effectively

waived”) (citing United States v. Jackson, 426 F.3d 301, 304 n.2 (5th Cir. 2005)), but he did

make this argument in his February 24, 2005, motion for new trial before the district court. 

Because we find this claim lacks merit, we need not decide whether it was waived.

27

inmate witnesses on the stand. Cf. United States v. Dixon, 132 F.3d 192, 199

(5th Cir. 1997) (“Brady does 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 reasonable diligence.”) (internal

quotation marks omitted). 

Second, even assuming that the government’s files did contain

correspondence that it was obliged to disclose under Brady, Otis has not shown

that these allegedly suppressed communications are material under the Brady

standard because he has not demonstrated thatthere is a reasonable probability

that, had the evidence been disclosed to the defense, the result would have been

different. See United States v. Maloof, 205 F.3d 819, 827 (5th Cir. 2000) (citing

Bagley, 473 U.S. at 682-83). Stated differently, Otis has not shown that the

suppression of the alleged inmate-government correspondence undermines

confidence in the outcome of the trial. See Runyan, 290 F.3d at 247 (citing Kyles,

514 U.S. at 434); see also United States v. Kates, 174 F.3d 580, 583 (5th Cir.

1999) (“‘The mere possibility that an item of undisclosed information might have

helped the defense, or might have affected the outcome of the trial, does not

establish ‘materiality’ in the constitutional sense.’”) (quoting United States v.

Agurs, 427 U.S. 97, 109-10 (1978)). 

Thus, we hold that the district court did not err in denying Otis’s motion

for new trial based on Brady.

15
No. 05-30252

28

D. Sufficiency of the Evidence to Support Otis Jackson’s Conspiracy

Conviction

Otis challenges the sufficiency of the evidence underlying his conviction

for conspiracy to possess with intentto distribute over fifty grams of cocaine base

or crack. According to Otis, the evidence supporting his conviction was

insufficient to show any overt act on his part or any sort of agreement between

him and his co-defendants to distribute cocaine base or crack, two essential

elements of the conspiracy offense. Otis maintains that his familial association

with Cotton and Trina and his mere presence at the Pickfair Apartments are not

enough to prove his involvement in the conspiracy. 

We review a challenge to the sufficiency of the evidence supporting a

conviction de novo, considering whether a rational trier of fact could have found

the essential elements of the offense beyond a reasonable doubt. See German,

486 F.3d at 852. All reasonable inferences from the evidence must be construed

in favor of the jury verdict, and the determination of witness credibility is the

province of the jury. Id. “The evidence need not exclude every reasonable

hypothesis of innocence or be wholly inconsistent with every conclusion except

that of guilt, and the jury is free to choose among reasonable constructions ofthe

evidence.” Infante, 404 F.3d at 384-85 (internal quotation marks omitted).

To prove the offense of conspiracy to possess with intent to distribute a

controlled substance, the government must establish: “(1) the existence of an

agreement between two or more persons to violate narcotics laws, (2) the

defendant’s knowledge of the conspiracy, and (3) the defendant’s voluntary

participation in the conspiracy.” Fuchs, 467F.3d at 908. “An express agreement

is not required; a tacit, mutual agreement with common purpose, design, and

understanding will suffice.” Infante, 404 F.3d at 385. “Moreover, because
No. 05-30252

29

secrecy is the norm in drug conspiracies, each element of the crime may be

established by circumstantial evidence.” Id.

Although “[t]he defendant’s knowledge of and participation in the

conspiracy may be inferred from a collection of circumstances,”“[m]ere presence

or association alone . . . [is] not sufficient to prove participation in a conspiracy.”

Fuchs, 467 F.3d at 908 (internal quotation marks and citations omitted).

However, to be convicted of engaging in a criminal conspiracy, the defendant

“need not know all the details of the unlawful enterprise or know the exact

number or identity of all the co-conspirators, so long as he knowingly

participates in some fashion in the larger objectives of the conspiracy.” Garcia

Abrego, 141 F.3d at 155 (internal quotation marks omitted). In addition, “a

conviction may be sustained solely on the basis of the testimony of a

coconspirator—even a coconspirator who testifies on the basis of a plea bargain

or promise of leniency—so long as that testimony is not incredible as a matter

of law—that is, so long as it does not defy the laws of nature or relate to matters

that the witness could not have observed.” Id. at 155-56. 

The record contains sufficient evidence to support the jury’s conclusion

that Otis engaged in a conspiracy to possess with intent to distribute over fifty

grams of cocaine base or crack. As detailed above, the government introduced

the testimony of individuals who alleged thatthey purchased crack cocaine from

Otis on various occasions during the time period of the conspiracy (testimony of

Todd Phillips and Stephen Taylor), or who alleged that they observed Otis

outside of the Pickfair Apartments when drug transactions were taking place

(testimony of Roberto Guzman and Jeffrey Michelli). In addition, the

government presented the testimony of Glenn Bailey, who alleged that he sold
No. 05-30252

30

crack to Otis; Hughy Brown, who alleged that he observed Otis handling jars

and beakers in which crack cocaine was being cooked; and Roberto Guzman, who

alleged that the safe Cotton used for drug proceeds was located inside of Otis’s

apartment and that Otis was present on at least one occasion when Cotton

retrieved money from the safe. This testimony, when viewed in the light most

favorable to the prosecution, sufficiently supports the jury’s verdict.

Moreover, some of the witnesses’ accounts were corroborated by the wire

transfer records showing a connection between Otis and known drug dealers.

These records reveal that Otis received fifteen wires totaling $42,160 from Jercy

Davis, Lester Davis, John Jackson, and others. Jercy Davis is the spouse of

Lester Davis, a drug dealer who sometimes used the alias “John Jackson” when

wiring money to Otis. The government also introduced evidence that Otis

subsequently endorsed some of the Western Union checks over to Cotton.

Accordingly,the jury could have reasonably inferred that Otis was paying Cotton

for the drugs he had purchased. Cf. Infante, 404 F.3d at 386 (finding testimony

of co-conspirator was corroborated by telephone records). 

Finally, although Otis correctly asserts that his conspiracy conviction

cannot be based solely on the existence of familial relationships or upon his mere

presence, “[i]nferences drawn from familial relationships or mere knowing

presence . . . may be combined with other circumstantial evidence to support a

conspiracy conviction.” United States v. Broussard, 80 F.3d 1025, 1031 (5th Cir.

1996). The government presented evidence not only of Otis’s relationship to

Cotton and Trina, but also that he lived in the Pickfair Apartments next to

Cotton and Trina. There was evidence that drug transactions were routinely

conducted at the Pickfair Apartments. In addition, the jury heard evidence that

Cotton had access to Otis’s apartment and the safe located therein, even when
No. 05-30252

31

Otis was not there. Finally, the government set forth Roberto Guzman’s

testimony that he overheard Otis and Cotton atthe body shop discussing a drugrelated trip Otis had made to south Louisiana. 

Given all of this evidence, the jury could have concluded that Otis was a

knowing member of the conspiracy, instead of a solo dealer in drugs.

Accordingly, we hold thatthere is sufficient evidence to supportthe jury’s verdict

on Otis’s conspiracy conviction.

E. Reasonableness of Sentences for Trina Jackson and Otis Jackson

under 18 U.S.C. § 3553(a)

1. Parties’ Arguments

In its cross-appeal, the government challenges the non-Guidelines

sentences imposed upon Trina and Otis by the district court as being

unreasonable under the factors in 18 U.S.C. § 3553(a). According to the

government, these sentences are unreasonable because the district court focused

on impermissible factors and failed to properly consider the factors specified in

§ 3553(a). The government argues that the 120-month sentences imposed upon

Trina and Otis are 49% and 54% deviations, respectively, from the low end ofthe

advisory Guidelines ranges. In addition, the government contends that the

district court’s sentencing decisions are not informed by the decisions of this

circuit both before and after Booker. 

Trina and Otis counter that the district court sufficiently considered the

§ 3553(a) factors and did so in haec verba. According to Trina and Otis, the

district court thoroughly articulated its reasons for deviating below the

sentencing ranges assigned by the PSR.

2. Analysis

This court reviews the district court’s factual findings in connection with
No. 05-30252

32

sentencing for clear error and the application of the Guidelines de novo. See

United States v. Guidry, 462 F.3d 373, 375 (5th Cir. 2006). We review the

ultimate sentence imposed by the district court for “unreasonableness,” an

inquiry guided by the factors in § 3553(a). See United States v. Smith, 440 F.3d

704, 706 (5th Cir. 2006). These factors include:

(1) the nature and circumstances of the offense and the history

and characteristics of the defendant;

(2) the need for the sentence imposed—

(A) to reflect the seriousness of the offense, to promote

respect for the law, and to provide just punishment for

the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the

defendant; and

(D) to provide the defendant with needed educational or

vocational training, medical care, or other correctional

treatment in the most effective manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range established

for—

(A) the applicable category of offense committed by the

applicable category of defendant as set forth in the

guidelines . . .;

(5) any pertinent policy statement—

(A) issued by the Sentencing Commission . . .;

(6) the need to avoid unwarranted sentence disparities among

defendants with similar records who have been found guilty

of similar conduct; and

(7) the need to provide restitution to any victims of the offense.

18 U.S.C. § 3553(a). A sentence within the statutory Guidelines supports a

presumption of reasonableness on appellate review. Rita v. United States, 127

S. Ct. 2456, 2462-66 (2007); United States v. Mares, 402 F.3d 511, 519-20 (5th

Cir. 2005). However, a non-Guidelines sentence does not support a presumption
No. 05-30252

16 A number of other circuits apply this “proportionality” approach, see Rita, 127

S. Ct. at 2467 (citing the First, Fourth, Fifth, Sixth, Seventh, Eighth, Tenth, and Eleventh

Circuits), and the Supreme Court is currently considering a case involving the question of

whether federal appellate courts may require stronger justifications for greater deviations

from the Guidelines. See Gall v. United States, 127 S. Ct. 2933 (2007) (argued October 2,

2007).

33

of unreasonableness. Rita, 127 S. Ct. at 2467. 

“Where, as here, a district court imposes a post-Booker non-Guidelines

sentence . . . we conduct our reasonableness review through an

abuse-of-discretion lens, paying particular attention to the specific reasons given

for deviating from the Guidelines.” United States v. Armendariz, 451 F.3d 352,

358 (5th Cir. 2006) (citing United States v. Reinhart, 442 F.3d 857, 862 (5th Cir.

2006)); see also Rita, 127 S. Ct. at 2472 (“Guided by [the] § 3553(a) factors,

Booker’s abuse-of-discretion standard directs appellate courts to evaluate what

motivated the District Judge’s individualized sentencing decision.”). 

“The sentencing judge should set forth enough to satisfy the appellate

court that he has considered the parties’ arguments and has a reasoned basis for

exercising his own legal decisionmaking authority.” Rita, 127 S. Ct. at 2468.

“Sometimes the circumstances will call for a brief explanation; sometimes they

will call for a lengthier explanation. Where the judge imposes a sentence outside

the Guidelines, the judge will explain why he has done so.” Id. “When the

district court imposes a non-Guideline sentence, it ‘must more thoroughly

articulate its reasons’ for doing so, and the greater the difference between the

sentence and the Guideline range, ‘the more compelling the justification based

on factors in section 3553(a) must be.’” Guidry, 462 F.3d at 376 (quoting Smith,

440 F.3d at 707).16

In the Fifth Circuit, a non-Guidelines sentence is unreasonable if it: “(1)
No. 05-30252

17 But see Rita, 127 S. Ct. at 2473 (Stevens, J., concurring) (“Matters such as age,

education, mental or emotional condition, medical condition (including drug or alcohol

addiction), employment history, lack of guidance as a youth, family ties, or military, civic,

charitable, or public service are not ordinarily considered under the Guidelines. These are,

however, matters that § 3553(a) authorizes the sentencing judge to consider. As such, they

are factors that an appellate court must consider under Booker’s abuse-of-discretion

standard.”) (internal citations omitted).

34

does not account for a factor that should have received significant weight, (2)

gives significant weight to an irrelevant or improper factor, or (3) represents a

clear error of judgment in balancing the sentencing factors.” Smith, 440 F.3d at

708.17

a. Trina Jackson’s Sentence

i. District Court’s Sentencing

In sentencing Trina,the district court found that the applicable Guideline

range was 235 to 293 months. The district court then began its sentencing

colloquy by stating thatit would not only consider the Sentencing Guidelines but

that it would give them considerable weight. The district court then proceeded

to point out a number of issues with the case that it found “disturbing.” First,

the district court noted thatTrina’s relative culpability was minor in comparison

to Cotton’s culpability. Second, the district court noted that Trina has five

children, and that it had just sentenced her husband and the children’s father,

Cotton, to life imprisonment. Finally, the district court noted that Trina had no

criminal history record and no substance abuse problem. The district judge

reasoned that

based on everything that I’ve heard, that the guidelines of 235 to

293 months is not an appropriate sentence . . . . [I]t seems to me

that a sentence of 120 months would be appropriate for this

defendant. It would serve society’s purpose in punishing her. It
No. 05-30252

18 The district court denied Trina’s request for a mitigating role reduction under

U.S.S.G. § 3B1.2 on the ground that “relative to Mr. Cotton, she’s minor, but as far as the

law is concerned, I don’t find her to be minor.”

35

would tend to deter conduct of others who might want to get

involved with this kind of thing. It’s not a little thing when you say

ten years.

After again alluding to Trina’s culpability as compared to Cotton’s and Trina’s

status as a mother, the district judge concluded that

it just seems appropriate under all the circumstances in my duty as

a judge to fashion an appropriate sentence in keeping with Booker

and Fanfan. So I will deviate from the [U.S.S.G.] for the reasons

that I’ve stated and I’m going to go ahead and impose a sentence of

120 months.

ii. Discussion

Under this circuit’s post-Booker precedent, the district court’s nonGuidelines sentence of 120 months for Trina is unreasonable because it relies on

improper or irrelevant factors and failed to take into account relevant statutory

factors. The district court assigned significant weight to improper or irrelevant

factors, including:

• Relative culpability: Although the district court denied Trina’s

objection that she was entitled to a reduction under U.S.S.G. § 3B1.2 for her

minor or minimal role in the offense,18 the district court still proceeded to deviate

from the Guidelines in part because Trina’s culpability was minor compared to

that of Cotton. The district court should have explained its apparently

contradictory position on the culpability issue. Cf. United States v. Duhon, 440

F.3d 711, 717 (5th Cir. 2006) (noting that the district court should have

explained why it relied on the defendant’s back injury for its sentencing

deviation, where it had earlier acknowledged that the Guidelines would not
No. 05-30252

36

permit a departure based on the defendant’s physical condition).

• Criminal history: In deviating from the Guidelines range in part

because Trina had no criminal history, the district court (1) failed to

acknowledge that Trina’s criminal history was already taken into account in the

calculation of her Guidelines range, and (2) failed to articulate why placing extra

weight on a factor already taken into account by the Guidelines was appropriate

in this case. Cf. United States v. Perrin, 478 F.3d 672, 678 (5th Cir. 2007)

(concluding that it was inappropriate for the district court to consider factors

that were already accounted for in determining the Guidelines range).

Moreover, the district court failed to acknowledge U.S.S.G. § 4A1.3(b)(2)(A),

which prohibits the court from departing from the lower limit of the applicable

Guidelines range when the defendant has a criminal history score of Category

I. Cf. Armendariz, 451 F.3d at 359 (concluding that a sentence was

unreasonable where the district court did not, among other things, account for

pertinent policy statements in the Guidelines) (citing 18 U.S.C. § 3553(a)(5)). 

• Family circumstances: The district court also justified Trina’s

sentence in significant part on the fact that Trina has five children and that her

husband and the father of the children, Cotton, had been sentenced to life

imprisonment. Family responsibilities are a discouraged factor under the

Guidelines. See U.S.S.G. § 5H1.6 (“[F]amily ties and responsibilities are not

ordinarily relevant in determining whether a departure may be warranted.”).

In considering Trina’s family circumstances,the district court erroneously failed

to acknowledge and consider the policy statement in § 5H1.6. See Guidry, 462

F.3d at 377 (noting that the district court “failed to acknowledge the [§ 5H1.6]

policy statement or to give any indication that Guidry’s family ties are somehow
No. 05-30252

37

extraordinary such that the policy statement would not apply”). 

Also, the district court failed to consider other factors in § 3553(a), which

this court has concluded are relevant:

• Culpability: In light of the considerable testimony at trial

regarding Trina’s involvement in the conspiracy, the district court’s sentence

failed to give sufficient weight to “the nature and circumstances of the offense”

under § 3553(a)(1). Cf. Guidry, 462 F.3d at 377 (concluding that the district

court’s finding that Guidry was not a full-time drug dealer was belied by the

evidence in the record and testimony at trial). Here, the sentence imposed by

the district court is commensurate with the Guidelines sentence applicable to

someone who has trafficked only thirty-five to fifty grams of crack; the amount

that Trina personally sold to Regina Booker alone is more than five times this

amount.

• Disparity: The district court failed to consider that the sentence

it imposed, which constituted a 49% reduction from the Guidelines minimum,

would create significant disparity between Trina and other defendants with

similar criminal histories convicted of similar offenses. See Guidry, 462 F.3d at

378 (holding that the district court’s failure to give consideration to the

sentencing disparity that would result was another reason the defendant’s

sentence was unreasonable); cf. Rita, 127 S. Ct. at 2464-65 (“[I]tis fair to assume

that the Guidelines, insofar as practicable, reflect a rough approximation of

sentences that might achieve § 3553(a)’s objectives.”).

Trina’s sentence is unreasonable because the district judge considered

disfavored factors and ignored relevant ones. Therefore, we vacate and remand

for resentencing. 
No. 05-30252

19 The district court later emphasized that Otis’s marijuana conviction in 2003 for

the 63.5 pounds of marijuana was a factor it considered.

38

b. Otis Jackson’s Sentence

i. District Court’s Sentencing

In sentencing Otis, the district court first noted that the applicable

sentencing range was 262 to 327 months. The district judge then stated, 

I’m not only going to consider [the Guidelines], but I’m going to give

significant weight to those guidelines, but I’m also going to follow

the mandate that I was given, I believe, as the district judge to

tailor each sentence based upon the particular facts of the case and

the real conduct, real criminal conduct that the Court finds.

In fashioning Otis’s sentence, the district court provided three reasons for

deviating from the Guideline range. First, the district court expressed concern

over the effect on the jury of its decision to admit evidence of Otis’s other crimes

under Federal Rule of Evidence 404(b). The district judge explained:

I made a ruling over the objection, I believe, of defense counsel

about the allowance of 60 pounds or 62.5 pounds or whatever of

marijuana . . . [t]hat the defendant was convicted of

possessing. . . . And I allowed the jury to know about that over the

defendant’s objection, I believe. And I think it was the right

decision on the law, but I am struck in my view that without that,

the jury not having notice of that conviction during this

period . . . and I can’t say that the jury wouldn’t have found him

guilty because there was other evidence there. I think that’s clear.

But when we get back, it would have been more interesting probably

or more difficult . . . for the jury to do whatever the jury was going

to do.19

Second, the district court justified its sentence based on Otis’s criminal

conduct as compared to Cotton’s, calling the comparison “apples and oranges.”

Third, the district court noted that if it sentenced Otis within the Guidelines,
No. 05-30252

39

although he was “apparently in good health at this time,” “he would be 76 to 78

years old when he got out if he lived that long.” The district court explained that

this consideration was important because “the older prisoners get, the more

expensive they get to house with the medical condition.” Based on these

considerations, the district judge concluded that the Guideline range did not

represent an “appropriate” sentence for Otis:

I don’t think that’s an appropriate sentence when I consider the

nature and circumstances of the offense and the history and the

characteristics of the defendant; when I consider the need for the

sentence to reflect the seriousness of the offense; to promote respect

for the law; and to provide just punishment for the offense; and to

afford adequate deterrence to criminal conduct and to protect the

public from further crimes of the defendant.

Accordingly, the district court deviated from the Guideline range and sentenced

Otis to 120 months in prison.

ii. Discussion

Like Trina’s sentence, Otis’s non-Guidelines sentence is unreasonable

because it is based on irrelevant or impermissible factors and because it fails to

give sufficient weight to relevant factors. The irrelevant or impermissible

factors include:

• Other crimes evidence admitted under FED.R.EVID.404(b):

The district court should not have considered the possible effect on the jury’s

deliberative process of the court’s decision to admit at trial Rule 404(b) evidence

of marijuana trafficking by Otis. No aspect of § 3553(a) authorizes the

sentencing court to speculate about the effect on the jury’s deliberations of

certain evidence admitted attrial. Cf. United States v. Meacham, 115 F.3d 1488,

1498 (10th Cir. 1997) (vacating a downward departure sentence based on the

district court’s concerns that the evidence supporting the conviction was weak
No. 05-30252

40

because of witness credibility); United States v. Haut, 107 F.3d 213, 219 (3d Cir.

1997) (concluding that it was inappropriate for the district court to justify its

downward departure based on the ground thatthe witnesses for the prosecution

lacked credibility).

• Age: When considering Otis’s age as one of the factors for its

sentence, the district court failed to acknowledge or reconcile its view with the

policy statement in U.S.S.G. § 5H1.1, which provides that age is not ordinarily

relevant in determining whether a departure is warranted. Although § 5H1.1

states that age may be a reason to depart downward in a case in which the

defendant is elderly and infirm, this cannot be a reason to deviate in this case

because the district court found that Otis is “apparently in good health.” The

district court should have acknowledged § 5H1.1 and explained why the policy

statement should not apply in Otis’s case. See United States v. Simmons, 470

F.3d 1115, 1131 (5th Cir. 2006) (“Although consideration of age appears not to

be per se unreasonable post-Booker . . . a district court should acknowledge

[§ 5H1.1] and explain why the prohibited or discouraged factor, as it relates to

the defendant, is so extraordinary that the policy statement should not apply.”).

The factors that the district court overlooked or did not fully consider

include:

• Criminal history and recidivism: The district court failed to

acknowledge Otis’s propensity for recidivism. While Otis was under indictment

in the instant case and on pre-trial release, he committed and was convicted of

felony possession of 63.5 pounds of marijuana. The district court should have

considered this factor. Cf. Guidry, 462 F.3d at 376-77 (determining that the

district court’s focus on the defendant’s scant criminal history “failed to
No. 05-30252

41

acknowledge that Guidry has a history of recidivism in that he was on state

parole for a drug conviction at the time of many of the events charged in the

indictment”); United States v. Goldsmith, 192 F. App’x 261, 266 (5th Cir. 2006)

(unpublished) (finding that the district court failed to give the defendant’s

criminal history the negative significance it deserved under § 3553(a)(1), in part

because of the defendant’s potential for recidivism).

• Disparity: Just as it did with Trina’s sentence, the district court

did not consider thatthe sentence itimposed upon Otis, which constituted a 54%

deviation from the low end of the Guidelines range, would create significant

disparity between Otis and other defendants with similar criminal histories

convicted of similar offenses. See Guidry, 462 F.3d at 378.

• Culpability: The district court deviated from the Guidelines

based in part on Otis’s criminal conduct without commenting on the policy

statement in U.S.S.G. § 5H1.7, which states that “[a] defendant’s role in the

offense is relevant in determining the applicable guideline range . . . but is not

a basis for departing from that range.” In addition to failing to consider the

relevant policy statement, the district court’s sentence does not account for the

seriousness of Otis’s offense. The quantity of crack that Otis sold to Stephen

Taylor alone (3 kilograms) is twice that required to trigger the maximum offense

level of 38. See U.S.S.G. § 2D1.1(c)(1) (providing a maximum offense level of 38

for offenses involving 1.5 kilograms or more of cocaine base). Yet, the 120-month

sentence imposed by the district court is commensurate with the Guidelines

sentence of someone with an offense level of 30, which is the offense level

applicable to a crack cocaine offense involving thirty-five to fifty grams of crack.

See id. § 2D1.1(c)(5). In addition, although, as the district court noted, Otis’s
No. 05-30252

42

culpability compared to Cotton’s was “apples and oranges,” any disparity

between Otis’s and Cotton’s criminal activities is accounted for by the fact that

Cotton faced a mandatory term of life imprisonment and by a Guidelines

provision that would have permitted the district court to reduce Otis’s offense

level based on a finding that Otis played a mitigating role in the offense under

U.S.S.G. § 3B1.2. Otis never sought a mitigating role adjustment under § 3B1.2,

nor did the district court contemplate giving him one. 

Accordingly,the district court’s non-Guidelines sentence of 120 months for

Otis is unreasonable, and this court therefore vacates and remands for

resentencing.

III. CONCLUSION

For the reasons given above, we AFFIRM the district court’s denial of

Defendants’ new trial motions and denial of a hearing on those motions, and we

AFFIRM Otis Jackson’s conspiracy conviction. Because we find the sentences

of Trina Jackson and Otis Jackson unreasonable under 18 U.S.C. § 3553(a), we

VACATE those sentences and REMAND to the district court for resentencing.