U.S. v. Mays

• Decision Date: 29 September 2006
• Docket Number: No. 05-30811.,05-30811.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Melvin Lee MAYS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

466 F.3d 335

UNITED STATES of America, Plaintiff-Appellee, v. Melvin Lee MAYS, Defendant-Appellant.

No. 05-30811.

United States Court of Appeals, Fifth Circuit.

September 29, 2006.

Josette Louise Cassiere (argued) and Donald E. Hathaway, Jr., Asst. U.S. Attys., Shreveport, LA, for U.S.

Stephen A. Glassell (argued), Shreveport, LA, for Mays.

Appeal from the United States District Court for 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 with intent to distribute 50 or more grams of cocaine base, (2) possession with intent to distribute powder cocaine, (3) carrying a firearm during a drug trafficking crime, (4) being a convicted felon in possession of a firearm, and (5) having been convicted of a crime of violence and being in possession of body armor. Mays was sentenced to life in prison. We affirm the conviction and sentence.

I. FACTS AND PROCEEDINGS

Police officers conducted two controlled purchases of "crack" cocaine from an address in Shreveport, Louisiana. 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 informant purchased 0.3 grams of "crack" cocaine for $20 from a black female whom the informant identified as "Melvin's mother." Officer Bo Lummus of the Shreveport Police Department prepared an affidavit to apply for a search warrant. The magistrate judge found probable cause and issued the warrant.

Police found and seized approximately 25 grams of powder cocaine and 72 grams of "crack" cocaine, as well as firearms, ammunition, a bulletproof vest, three digital scales, and a measuring cup in a duffel bag identified as belonging to Melvin Lee Mays. Mays was arrested. He filed a motion to suppress, alleging that the search warrant was not supported by probable cause. He also filed an objection to the notice filed by the Government alleging two prior felony narcotics convictions and one prior felony conviction for aggravated battery. Mays further filed a motion to sever the felon-in-possession charges from the remaining charges and post-verdict motions for a new trial and judgment of acquittal. Finally, Mays objected 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 motions 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. Mays timely appealed.

II. DISCUSSION

A. Mays's sentence and Roper

Mays was convicted of possession with intent to distribute 50 grams or more of "crack" cocaine, or cocaine base, in violation of 21 U.S.C. §§ 841(a) and (b)(1)(A). Any person who violates these statutes "after two or more prior convictions for a felony drug offense have become final ... shall be sentenced to a mandatory term of life imprisonment without release." Id. § 841(b)(1)(A). At sentencing, Mays objected to the use of his 1992 adult felony conviction for possession of a Schedule II controlled substance, obtained in Louisiana 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 interpreted in Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005).

In Roper, the Supreme Court held that the Eighth and Fourteenth Amendments prohibit imposition of the death penalty on offenders who were under 18 when their crimes were committed. 543 U.S. at 578, 125 S.Ct. 1183. The court reasoned in part that the "objective immaturity, vulnerability, and lack of true depravity" of persons under the age of 18 made the death penalty inappropriate. Id. at 573, 125 S.Ct. 1183. The Court based its decision in large measure on the "special force" with which the Eighth Amendment applies when the state imposes the ultimate punishment of death. Id. at 568-69, 125 S.Ct. 1183. Both the majority and dissent in Roper looked for 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, 125 S.Ct. 1183. Mays, however, has not proffered any evidence of a national consensus that sentencing enhancements to life imprisonment based, in part, on juvenile convictions contravene modern standards of decency. In fact, at the federal level, sentences are routinely enhanced under the sentencing guidelines based upon juvenile convictions, albeit not necessarily to a life sentence. U.S. SENTENCING GUIDELINES MANUAL § 4A1.2(d)(2) (2004); see also United States v. Smith, 440 F.3d 704, 709 (5th Cir.2006) (holding that, since Roper concerned the Eighth Amendment's application to capital punishment of minors, it did not preclude a sentencing 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 motion to sever the felon-in-possession charges. We review the denial of a motion to sever charges for abuse of discretion. See United States v. Bullock, 71 F.3d 171, 174 (5th Cir.1995). Rule 8(a) of the Federal Rules of Criminal Procedure provides that two or more offenses may be charged in the same indictment or information in a separate count for 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 with or constitute parts of a common scheme or plan." We have construed Rule 8(a) liberally to effectuate its policy of permitting initial joinder 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 initial joinder."). Even if it is shown that initial joinder was improper, a defendant must also demonstrate "clear, specific and compelling prejudice that resulted in an unfair trial" in order to demonstrate reversible error. Bullock, 71 F.3d at 174.

Our caselaw has focused on the requirement in Rule 8(a) that the charged offenses 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 that a "transaction" for purposes of Rule 8(a) "may comprehend a series of many occurrences, depending not so much upon the immediateness of their connection as upon their logical relationship"). We found no abuse in Bullock when a weapon was found in the trunk of the getaway car hours after a robbery. See 71 F.3d at 175. We reasoned that "a factfinder could infer that Bullock had the gun so that it would be available to him during the robbery and escape." Id. When firearms are found during the investigation of an offense, joinder of the gun charges is appropriate. See 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 police found the cocaine, firearms, ammunition, and bulletproof vest pursuant to the same search warrant. Joinder was proper.

C. Sufficiency of the evidence

When reviewing for sufficiency of the evidence, we ask whether, viewing the evidence in the light most favorable to the Government, a rational factfinder could have found the defendant guilty beyond a reasonable doubt of the elements of the offense. See United States v. Cain, 440 F.3d 672, 675 (5th Cir.2006).

Mays argues that the Government did not provide sufficient evidence of intent to distribute. The evidence presented by the Government, however, is plainly sufficient for a reasonable jury to find that Mays intended to distribute the confiscated drugs. The firearms, body armor, scales, measuring cup, and baggies all qualify as "tools of the trade" that indicate that Mays did not intend to keep the cocaine base for personal use. See, e.g., United States v. Martinez, 808 F.2d 1050, 1057 (5th Cir.1987) (noting that "firearms are `tools of the trade' of those engaged in illegal drug activities and are highly probative in proving criminal intent"); United States v. Munoz, 957 F.2d 171, 174 (5th Cir.1992) (stating that intent 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 evidence of an intent to distribute." 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 that price, the total value of the cocaine base he possessed would be $4,800. See 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 the past that the mere possession of a quantity of drugs inconsistent with personal use will suffice for the jury to find intent to distribute. See 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 amount of the substance."). In Prieto-Tejas, we found 27.79 grams of 82 percent pure cocaine and 2.89 grams of 73 percent pure cocaine sufficient to give rise to an inference of intent to distribute. See i...