U.S. v. Cooper

• Decision Date: 26 November 2001
• Docket Number: 00-30210 and 00-30450,00-30209,Nos. 00-30208,s. 00-30208
• Citation: 274 F.3d 230
• Parties: (5th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JALTHEUS COOPER, also known as Tweet Cooper, Defendant-Appellant, UNITED STATES OF AMERICA, Plaintiff-Appellee, v. EDWARD FAULK, also known as Lite Bread Faulk, Defendant-Appellant, UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ERNEST GREEN, also known as Serv-it Green, Defendant-Appellant, UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JAMES ALEXANDER, also known as Coco Alexander, Defendant-Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

Page 230

274 F.3d 230 (5th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JALTHEUS COOPER, also known as Tweet Cooper, Defendant-Appellant, UNITED STATES OF AMERICA, Plaintiff-Appellee, v. EDWARD FAULK, also known as Lite Bread Faulk, Defendant-Appellant, UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ERNEST GREEN, also known as Serv-it Green, Defendant-Appellant, UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JAMES ALEXANDER, also known as Coco Alexander, Defendant-Appellant.

Nos. 00-30208, 00-30209, 00-30210 and 00-30450

UNITED STATES COURT OF APPEALS FIFTH CIRCUIT

November 26, 2001

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

Before KING, Chief Judge, and DUHE and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

This direct criminal appeal involves four appellants who pleaded guilty to distribution of an unspecified quantity of heroin and conspiracy to possess with intent to distribute an unspecified quantity of heroin in violation of 21 U.S.C. §§ 841(a)(1) & 846. One appellant, Edward Faulk, also pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The appellants raise various sentencing errors. We conclude that the district court erroneously enhanced Edward Faulk's sentence for possession of a firearm under U.S.S.G. § 2D1.1(b)(1) and committed plain error as to Faulk's term of supervised release. Thus, we VACATE and REMAND Faulk's sentence. We AFFIRM the sentences of Jaltheus Cooper, Ernest Green, and James Alexander.

I. BACKGROUND

This consolidated appeal arises from heroin trafficking that occurred in the St. Thomas housing project in New Orleans. Appellants Jaltheus Cooper, Edward Faulk, Ernest Green, and James Alexander, along with codefendant Jacqueline Thompson (not party to this appeal), were charged in a five-count indictment with distribution of unspecified quantities of heroin in violation of 21 U.S.C. § 841(a)(1) and with conspiracy to possess with intent to distribute an unspecified quantity of heroin in violation of 21 U.S.C. §§ 841 (a)(1) and 846. In addition, Faulk was charged with possession of a firearm by a felon.

Cooper, Faulk, and Green, as well as Thompson, pleaded guilty and agreed to cooperate with the government in the case against Alexander. After his codefendants agreed to plead guilty, Alexander changed his plea to guilty on the day of his scheduled trial. Cooper, Faulk, and Green agreed to a factual basis which contained the following information. Thompson distributed 2.5 grams of heroin to an undercover agent and a cooperating witness. Green similarly distributed 4.2 grams. Faulk and Cooper distributed 6.9 grams to an undercover agent and a cooperating witness. Faulk possessed a firearm while previously having been convicted of a felony. The firearm was seized from a vehicle occupied by Faulk, and Faulk personally placed it inside a motor vehicle. Cooper, Faulk, and Green also agreed that they conspired with each other and Thompson "to possess with the intent to distribute not more than one (1) kilogram of heroin." Alexander agreed in a separate factual basis that he distributed 4.2 grams of heroin to an undercover cooperating witness. Alexander further agreed to the conspiracy to distribute "a quantity of heroin;" but he disputed the assertion that the amount of heroin involved was at least one kilogram.

The government submitted a notice with an accompanying affidavit from the case agent to establish that the quantity of heroin attributable to each of the co-conspirators was at least one kilogram over the course of the conspiracy. The presentence reports (PSR's) for each defendant calculated the base offense level as 32 based on one kilogram of heroin attributable to the defendants. One kilogram is the minimum amount necessary for a base offense level of 32 under U.S.S.G. § 2D1.1(c)(4).

Prior to the sentencing hearing for Cooper, Faulk, and Green on February 16, 2000, all defendants joined in objecting to the PSR's attributing one kilogram of heroin to them. The district court conducted an evidentiary hearing for the purpose of determining the drug quantity. ATF Agent Michael Eberhardt testified at the hearing, further elaborating on his affidavit.

Eberhardt testified that the investigation of this matter was conducted by agents and officers of the Bureau of Alcohol, Tobacco, and Firearms, and the New Orleans Police Department over the course of 18 to 24 months beginning in March 1997, and that the quantity of heroin involved in the conspiracy was "more than 850 grams." He further testified that his investigation began when a reliable confidential informant identified Cooper, Faulk, Green, Alexander, and Thompson as individuals distributing heroin in the St. Thomas housing project. Eberhardt determined the total amount of heroin involved in the conspiracy by adding various quantities discovered from source information to estimated quantities from personal observation of heroin transactions.

Eberhardt first learned that in November 1996 the Jefferson Parish Sheriff's Office seized from the mail a package sent from New York addressed to Claude Robinson in Marrero, Louisiana. The package contained approximately 59 "bundles" of heroin. Robinson told Eberhardt that the package had been arranged for and belonged to Faulk and Cooper. He further said that he had received a total of nine similar packages of heroin. Eberhardt used a conservative estimate of 0.5 grams of heroin contained in each bundle. The total amount of heroin received by Robinson on behalf of Faulk and Cooper was estimated to be 265.5 grams. Eberhardt testified that the seized heroin was unique in the way it was packaged in wax papers with the number "911" or the word "Amazing" stamped in red on the wax paper.

During the course of the investigation Eberhardt also interviewed a person named Darryl Fisher, who identified himself as a "runner" for Green, meaning that he made hand-to-hand sales of heroin for Green. According to Fisher, he distributed approximately one bundle of heroin per day for ten months, or a total of 140 grams of heroin. Fisher also related to Eberhardt that Cooper, Faulk, Green, and Alexander were distributing heroin in St. Thomas.

Codefendant Thompson told Eberhardt that she sold heroin for Cooper and Faulk for approximately ten months. She also had knowledge that Green and Alexander were selling for Cooper and Faulk. Thompson sold approximately two bundles per day for ten months, or a total of approximately 300 grams of heroin.

Another source of information was a New York heroin supplier named Victor Castro. Castro told Eberhardt that on two separate occasions Cooper and Faulk had met with him in New York and purchased a total of $20,000 worth of heroin. Using the street value of the heroin in New Orleans, which is conservative compared to heroin in New York, Eberhardt estimated that Cooper and Faulk had purchased 40 grams of heroin from Castro.

Eberhardt further discovered that the U.S. Postal Service had seized a package originating from a "target return address" in New York containing 65 bundles of heroin. This package was sent to Lionel Greer, who Eberhardt knew to be involved with the conspiracy. During an interview with Eberhardt, Greer admitted that the heroin was for people in the St. Thomas project, but he did not give any names. The heroin was packaged in wax paper with "911" or "Amazing" stamped on it, which Eberhardt testified was unique to the Cooper and Faulk group. The total amount of heroin was approximately 32.5 grams.

The last specific source of information was Warren Woody, who Eberhardt had determined was Cooper and Faulk's main supplier in New York. Woody was arrested by New York police in late 1997 while in possession of 200 bundles of heroin, each packaged in wax paper and stamped with "911" or "Amazing." Woody also possessed a bus ticket to New Orleans at the time of his arrest, and Woody's girlfriend told police that he had planned to meet friends in New Orleans. The amount of heroin attributed to the Cooper and Faulk organization from Woody was estimated to be 100 grams. The total amount of heroin derived from Robinson, Fisher, Castro, Cooper, and Woody was 878 grams.

Eberhardt also testified that beginning in March 1997, he spent approximately 700 hours doing surveillance at the St. Thomas housing project and participating in traffic stops. He personally witnessed numerous heroin transactions involving Green. He also stated that during the traffic stops people would be found with small amounts of heroin, such as two or three bundles, that they had just purchased. Based on the 878 grams of heroin identified from other sources and the quantities from his own personal observation during surveillance and traffic stops, Eberhardt testified that one kilogram was a conservative estimate of the amount of heroin involved in the conspiracy from November 1996 through May 1999.

Based on Eberhardt's affidavit and testimony and the factual basis stating that "not more than one (1) kilogram" of heroin was involved, the district court overruled the defendants' objections to the amount of heroin. The district court found that the evidence showed enough activity in the conspiracy that the defendants could have reasonably foreseen the amount of drugs distributed to be at least one kilogram.

The government filed a motion for downward departure with respect to Cooper, Faulk, and Green based on their substantial assistance, recommending a downward departure of ten percent of their respective sentences. The district court granted the motion. The court sentenced: (1) Cooper to 151 months and 5 years supervised release; (2) Faulk to 211 months and 5 years supervised release; (3) Green to 136 months and 5 years supervised release; and (4) Alexander to 140...