U.S. v. Rose

• Decision Date: 06 November 2009
• Docket Number: No. 08-10813.,08-10813.
• Citation: 587 F.3d 695
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Cedric ROSE, also known as John Wayne, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

587 F.3d 695

UNITED STATES of America, Plaintiff-Appellee, v. Cedric ROSE, also known as John Wayne, Defendant-Appellant.

No. 08-10813.

United States Court of Appeals, Fifth Circuit.

November 6, 2009.

Matthew Joseph Kacsmaryk (argued), Dallas, TX, Renee Harris Toliver, Fort Worth, TX, for U.S.

Kevin Joel Page (argued) Fed. Pub. Def., Dallas, TX, for Rose.

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

Before KING, DAVIS and BENAVIDES, Circuit Judges.

PER CURIAM:

Cedric Rose was convicted of one count of possession of crack cocaine with intent to distribute, one count of possession of a firearm in furtherance of a drug trafficking offense, and two counts of possession of a firearm by a convicted felon. He appeals his concurrent sentences of 360 months and his consecutive life sentence, claiming constitutional errors and insufficient evidence. We affirm.

I. BACKGROUND

Just after midnight on February 9, 2007, Officers Burke and Riede of the Dallas Police Department observed a vehicle arrive at a known drug house. The officers, who were standing next to their marked police car while watching the house, saw the vehicle remain parked outside the house for several minutes before it pulled off and began driving toward them. When the vehicle approached the police car, it stopped, backed up, turned around, and drove off in the opposite direction. The officers entered their car and followed the vehicle; when they saw that it was missing a rear license plate, they initiated a traffic stop.

Officer Riede approached the vehicle on the driver's side, while Officer Burke approached from the passenger's side. Aeisha Mitchell was driving, and Cedric Rose was sitting in the front passenger seat. Officer Burke shone a flashlight into the vehicle's window and observed a baggie of marijuana and crack cocaine between Rose's legs. When Officer Burke opened the door, Rose threw the baggie out of the vehicle, beyond the officer's reach. Officer Burke attempted to handcuff Rose, but Rose resisted. During the ensuing struggle, Rose stated that he "need[ed his] chips" while he repeatedly tried to reach under the front passenger seat; there was a bag of potato chips in the vehicle's center console. After he was subdued, Rose told the officers that there was a firearm under the front passenger seat; Officer Burke then found a loaded .38-caliber handgun with an obliterated serial number in the area Rose had tried to reach. A brief search of the passenger area and glove compartment did not uncover any drug paraphernalia. Officer Burke later retrieved the baggie Rose had thrown, which was sent to the Southwest Institute of Forensic Sciences (SWIFS) for testing. The officers did not arrest Mitchell, and they did not impound the vehicle.

Rose was charged by a four-count superseding indictment. The four counts were one count of possession with intent to distribute five grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii); one count of possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A); and two counts of possession of firearms subsequent to a felony conviction, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1).¹ The government filed a sentencing enhancement information alerting the court that it would seek a life sentence under 18 U.S.C. § 3559(c) for the charge of possession of a firearm in furtherance of a drug trafficking crime. Rose waived his constitutional right to be tried by jury, and the district court conducted a bench trial.

After Officer Burke testified to the facts surrounding the traffic stop and arrest, the government called Monica Lopez, the supervisor of the drug laboratory at SWIFS. Lopez testified as an expert witness about the analysis that her laboratory had conducted on the crack cocaine Rose had thrown from the vehicle. SWIFS determined that the sample contained 15.5 grams of crack cocaine. Lopez identified the laboratory report that SWIFS had prepared; she was not listed as the "Analyst," but she signed the lab report as a "Reviewer." Lopez testified that the analyst had generated the report. Rose did not object to Lopez's testimony or to the report; the report was admitted into evidence. Rose's cross-examination of Lopez focused exclusively on the calibration of the testing equipment.

The government's next witness was Special Agent Dan Kaase of the Bureau of Alcohol, Tobacco, Firearms, and Explosives. He testified as an expert witness that drug dealers typically carry small handguns that can be concealed. He further testified that the street value of 15.5 grams of crack cocaine was approximately $1,500, which was inconsistent with possession for personal use. According to Kaase, the fact that numerous smaller baggies containing crack cocaine were packaged inside a larger bag suggested that the drugs were intended for resale; Kaase also cited the lack of any drug paraphernalia to support that conclusion.

The government called Mitchell, the driver of the vehicle, to describe the events of that night as she recalled them. She testified that she did not know Rose had a gun with him that night and that she had seen Rose with the .38 before. She further testified that she overheard Rose tell the officers both that there was a gun in the vehicle and that she did not know it was there.

To support the two counts of possession of a firearm subsequent to a felony conviction, the government introduced records of Rose's convictions for unauthorized use of a motor vehicle, felony theft, burglary of a building, aggravated robbery (on four occasions), and aggravated sexual assault. With regard to the fourth count in the superseding indictment, which was unrelated to Rose's arrest on February 9, 2007, the government called Officer Erin Kaschalk of the Dallas Police Department. Officer Kaschalk testified to arresting Rose for driving a stolen vehicle at 4:30 a.m. on July 30, 2007; a .22-caliber handgun, manufactured in Utah, was found between the driver's seat and the center console during a search of the vehicle.

To explain the circumstances of Rose's July 30 arrest, the government called Jose Guevara to the stand. Guevara testified he and his coworker, Raul Castaneda, had visited a strip club on July 20, 2007, in Castaneda's car—the one Rose was driving when he was arrested by Officer Kaschalk. Guevara drove the car to his home when Castaneda was arrested for public intoxication. While in the process of returning the car the following morning, Guevara encountered Rose and attempted to purchase powder cocaine. When Guevara declined to accept crack cocaine, Rose became frustrated and asked for the money anyway; when Guevara refused, Rose shot him in the leg, then pointed the gun at Guevara's face. Guevara fled the car and collapsed; the car was gone when he looked back. When presented with a photograph of the .22-caliber handgun, Guevara testified that it looked like the gun Rose used to shoot him. Castaneda testified that the .22-caliber handgun was not in his car on the night of July 20 and that he reported the car stolen after learning that Guevara had been shot.

The district court denied the defense's motion for judgment of acquittal after the government rested its case in chief. The defense called Rose's brother as a character witness before resting. The district court rendered a verdict of guilty on all four counts, then denied the defense's renewed motion for judgment of acquittal. Rose made an objection to the initial presentence report limited to the factual statements it contained, while the government objected that the report did not address the career offender statute, 18 U.S.C. § 3559(c)(1). An addendum addressed the government's objection; Rose raised constitutional objections to application of § 3559(c)(1), but otherwise simply reiterated his objections to the initial presentence report. Rose was sentenced to concurrent terms of 360 months' imprisonment for the count of possession with intent to distribute and the counts of being a felon in possession of a firearm. On the count of possession of a firearm in furtherance of a drug trafficking crime, the district court applied § 3559(c)(1) and imposed a consecutive sentence of life imprisonment. A consecutive five-year period of supervised release and a $400 special assessment were also imposed. Rose now appeals.

II. DISCUSSION

Rose makes five arguments on appeal: (1) admission of the lab report without the testimony of the authoring analyst violated his rights under the Confrontation Clause of the Sixth Amendment; (2) there was insufficient evidence to convict him of possessing a firearm in furtherance of a drug trafficking offense; (3) the district court erred when it found his prior convictions for aggravated robbery were serious violent felonies triggering the career offender statute; (4) the career offender statute is unconstitutional; and (5) Rose's lack of knowledge that the firearms had moved in interstate commerce precluded convictions for being a felon in possession of a firearm. We address each of these arguments in turn.

A. Confrontation Clause

Rose claims for the first time on appeal that the SWIFS lab report was testimonial hearsay, and its admission— without the accompanying testimony of the analyst who conducted the testing—violated his Sixth Amendment right to be confronted with the witnesses against him. Because Rose did not object at trial to the introduction of the lab report, we review its admission for plain error. See FED. R.CRIM.P. 52(b); United States v. Garcia-Quintanilla, 574 F.3d 295, 298 (5th Cir. 2009).² An error or defect is plain if it was clear or obvious and affected the defendant's substantial rights. See Puckett v. United States, ___ U.S. ___, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009). If such an error is shown, we may exercise our discretion to remedy the error only if it "seriously...