U.S. v. Moody, 07-11222.

• Decision Date: 06 April 2009
• Docket Number: No. 07-11222.,07-11222.
• Citation: 564 F.3d 754
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Louis MOODY, also known as Youngsta; Detroit Hines, also known as Li'l Nut; Derrick Woodard, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

564 F.3d 754

UNITED STATES of America, Plaintiff-Appellee, v. Louis MOODY, also known as Youngsta; Detroit Hines, also known as Li'l Nut; Derrick Woodard, Defendants-Appellants.

No. 07-11222.

United States Court of Appeals, Fifth Circuit.

April 6, 2009.

Renee Harris Toliver (argued), Fort Worth, TX, for U.S.

Andrew Ottaway (argued) (Court-Appointed), Ottaway Law Office, Granbury, TX, for Moody.

Catherine R. Dunnavant (argued) (Court-Appointed), Dunnavant & Associates, PLLC, Fort Worth, TX, for Hines.

Robert J. Kersey (argued) (Court-Appointed), Law Offices of Robert J. Kersey, Granbury, TX, for Woodard.

Appeal from the United States District Court for the Northern District of Texas.

Before SMITH and SOUTHWICK, Circuit Judges, and ENGELHARDT, District Judge.^*

JERRY E. SMITH, Circuit Judge:

Louis Moody, Detroit Hines, and Derrick Woodard were convicted of crimes related to illegal drug sales. They appeal, and we affirm.

I.

The defendants were involved in crack cocaine sales in the "Fish Bowl,"¹ a part of the Poly neighborhood located in east Fort Worth, Texas. The Fort Worth Police Department ("FWPD") had difficulty policing the Fish Bowl, which served as a base for several drug dealers.

One of these was Holmes, who sold crack in Fort Worth from 2004 to 2006. Initially, he worked for a drug partnership consisting of defendant Hines, his brother Darryl Hines, and Michael Lewis. Holmes later started his own drug business and partnered with Darryl and Detroit Hines. Woodard also sold drugs for Holmes. Moody, at least on one known occasion, referred customers to Hines and Holmes. All three defendants—as well as the other dealers in the Fish Bowl—were members of the Five-Duce Crips, Four-Trey Crips, and a subset of the Five-Duce Crips known as the Polywood Crips.

The FWPD started their investigation into the Fish Bowl drug ring with the help of Michael Nunally, a former drug dealer turned confidential informant. Working with FWPD Officer Teagan Broadwater, Nunally helped identify participants. On one identification trip, Moody joined Nunally and Broadwater; Moody was unaware that Broadwater was a police officer or that Nunally was acting as an informant. Broadwater asked Moody where he could buy crack, and Moody told him to go to a house in the Poly neighborhood. At the house, Nunally and Moody approached Holmes and told him they had a customer who wanted to purchase "a hundred piece," or roughly four grams of crack.

Because Moody vouched for Broadwater, Holmes agreed to the deal. Broadwater gave Holmes $100, and Holmes gave Nunally the crack in exchange. Broadwater gave Moody $10 for helping broker the sale.

Later, Broadwater and Nunally returned to the house to buy more drugs. Nunally pointed out that "Li'l Nut,"² was standing in front of the home. Nunally attempted to set up a drug buy between Li'l Nut and Broadwater, but Li'l Nut declined. Broadwater then gave Nunally $100 to complete the deal himself. Nunally approached the house, gave Li'l Nut the money, and went inside, where Holmes gave him a baggie containing crack. After this drug buy, Broadwater searched the FWPD mug shot files for the alias Li'l Nut and discovered that that alias belonged to Hines. Broadwater continued his investigation into the Fish Bowl drug conspiracy, eventually cooperating with the FBI, specifically Special Agent Coffindaffer. This began what became known as Operation Fish Bowl.

About five months later, FWPD Officer Martinez saw Hines "peel out" in his car in a neighborhood north of the Fish Bowl. Martinez pursued Hines, who threw a metal object out of his car during the pursuit. Hines crashed his car into a wall and was arrested. Martinez later found the metal object Hines had thrown, which was a handgun. Martinez did not inventory the car but had it towed to the FWPD lot. Coffindaffer eventually heard that the police were storing Hines's car, and he searched it without a warrant six days after the initial chase, locating three cell phones, receipts, and bills.

Two months later, the FWPD issued a search warrant for the home of another drug dealer, Calvin Smith. When the warrant was executed, Hines was inside Smith's house. After surrounding the house, the FWPD told the occupants to leave, but they refused. Eventually, the police fired tear gas into the house, which forced everyone outside. Inside they found an AR15 assault rifle, a hand-gun, a glass pot with a fork in it,³ two boxes of ammunition, crack cocaine residue, documents relating to Hines, and a rap song.

Hines, Woodard, Moody, and a variety of others swept up in Operation Fish Bowl investigation were arrested and tried on drug-related charges. The three defendants were found guilty and appeal their convictions or sentences.

II.

A.

Moody appeals his conviction of conspiracy and aiding and abetting, alleging that the court erred in not granting his motion for judgment of acquittal based on insufficient evidence. "We review the district court's denial of a motion for judgment of acquittal de novo." United States v. Klein, 543 F.3d 206, 212 (5th Cir.2008) (citation omitted), cert. denied, ___ U.S. ___, 129 S.Ct. 1384, ___ L.Ed.2d ___ (2009). "Our review for sufficiency of the evidence following a conviction is narrow. We will affirm if a rational trier of fact could have found that the evidence established the essential elements of the offense beyond a reasonable doubt." Id. (citation omitted). All reasonable inferences are drawn in the light most favorable to the prosecution. Id. "[O]ur standard of review does not change if the evidence that sustains the conviction is circumstantial rather than direct." United States v. Morgan, 505 F.3d 332, 341 (5th Cir.2007) (citation omitted).

Moody was convicted, under 28 U.S.C. § 841, of aiding and abetting the distribution of cocaine. "To prove that a defendant aided and abetted, the Government must prove that the ... elements of the substantive offense occurred and that the defendant associated with the criminal venture, purposefully participated in the criminal activity, and sought by his actions to make the venture succeed." United States v. Jimenez, 509 F.3d 682, 689 (5th Cir.2007) (citations omitted), cert. denied, ___ U.S. ___, 128 S.Ct. 2924, 171 L.Ed.2d 856 (2008). "The essential elements of a violation of Section 841(a)(1) [for cocaine distribution] include: (1) knowledge, (2) possession, and (3) intent to distribute [cocaine]." United States v. Patino-Prado, 533 F.3d 304, 309 (5th Cir.) (citation omitted), cert. denied, ___ U.S. ___, 129 S.Ct. 328, 172 L.Ed.2d 236 (2008). The underlying offense occurred when Broadwater bought drugs from Holmes. Moody knowingly directed customers to Holmes, an activity associating with the criminal venture performed for the venture to succeed. Ample evidence exists for this conviction.

There is also substantial evidence to support Moody's conspiracy conviction. To convict under 21 U.S.C. § 846, the government must prove "(1) the existence of an agreement between two or more persons to violate the narcotics laws, (2) that each alleged conspirator knew of the conspiracy and intended to join it, and (3) that each alleged conspirator did participate in the conspiracy." United States v. Cantwell, 470 F.3d 1087, 1090 (5th Cir.2006) (citation omitted).

Moody asserts, as a defense, that he was such a drug addict that he "could not be trusted by anyone to distribute drugs," because if he got them, "he smoked them up himself." Regardless of how drug addicted Moody was, however, Holmes testified that Moody was a member of the Fish Bowl conspiracy. This testimony alone is sufficient to support Moody's conviction.

B.

Woodard was convicted, under 21 U.S.C. §§ 846 and 841(a)(1) and (b)(1)(A) and (C), of conspiracy to sell crack. He alleges that the court erred in sentencing when it found that a previous crime constituted a separate offense for sentencing purposes. Sentencing guideline decisions are reviewed for abuse of discretion. See United States v. Rowan, 530 F.3d 379, 381 (5th Cir.2008). "Though we review a sentence for abuse of discretion, we review the district court's application of the guidelines de novo and its findings of fact at sentencing for clear error." Klein, 543 F.3d at 213 (citation omitted). "An error in applying the guidelines is a significant procedural error that constitutes an abuse of discretion." Id. (citation omitted).

Under § 841, a defendant must be sentenced to a minimum of ten years for cases, as here, involving fifty grams or more of cocaine; if he has a prior final drug conviction, however, the minimum jumps to twenty years. Woodard was convicted in 2001 in state court for felony drug possession; the court found that that conviction involved drugs, so it enhanced the sentenced to 240 months. Woodard argues that the prior conviction was part of the same conspiracy and therefore cannot be used to enhance his sentence.

We uphold the use of the prior conviction to enhance, but on different grounds.⁴ Our sister circuits have held that prior convictions for conduct in furtherance of a conspiracy can be used to enhance the statutory penalty for a later arrest under the same conspiracy.⁵ We agree and also conclude that an earlier conviction from the same conspiracy can be used to enhance mandatory minimums. A defendant should not benefit in sentencing because he continued in a criminal enterprise even after he was already arrested and convicted for the same enterprise. "[T]he purpose of the mandatory minimum enhancement is to target recidivism ..., [and] it is more appropriate to focus on the degree of criminal activity that occurs after a defendant's conviction for drug-related activity is final rather than when the conspiracy began." United States v. Garcia, 32 F.3d 1017, 1019-20 (7th Cir.1994) (citation omitted). The court did not err in enhancing.

Woodard also alleges that the court erred in sentencing him based on the presentence report ("PSR")...