United States v. Harris

• Decision Date: 10 January 2014
• Docket Number: No. 12–31046.,12–31046.
• Citation: 740 F.3d 956
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Andre HARRIS, also known as Pookie Harris; Arthur Harris, also known as Raymine Harris, also known as Black Harris, Defendants–Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

740 F.3d 956

UNITED STATES of America, Plaintiff–Appellee

v.Andre HARRIS, also known as Pookie Harris; Arthur Harris, also known as Raymine Harris, also known as Black Harris, Defendants–Appellants.

No. 12–31046.

United States Court of Appeals, Fifth Circuit.

Jan. 10, 2014.

Chandra Menon, Assistant U.S. Attorney, Kevin G. Boitmann, Assistant U.S. Attorney, Diane Hollenshead Copes, Esq., Assistant U.S. Attorney, Maurice Edwin Landrieu, Esq., Assistant U.S. Attorney, Sharan E. Lieberman, U.S. Attorney's Office, New Orleans, LA, for Plaintiff–Appellee.

Robin Elise Schulberg, Covington, LA, Jordan Mark Siverd, Assistant Federal Public Defender, Gary V. Schwabe, Jr., Esq., Assistant Federal Public Defender, Federal Public Defender's Office, New Orleans, LA, for Defendant–Appellant.

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

Before SMITH, PRADO, and ELROD, Circuit Judges.

EDWARD C. PRADO, Circuit Judge:

In 2012, a jury convicted Defendants–Appellants Arthur Harris (“Arthur”) and Andre Harris (“Andre”) of (1) conspiracy to possess with intent to distribute crack cocaine; (2) conspiracy to possess firearms in furtherance of a drug-trafficking crime; (3) possession with intent to distribute crack cocaine; and (4) possession of firearms in furtherance of the drug-trafficking crimes listed above.¹ Arthur was also convictedof (1) possession of 5 grams or more of crack cocaine with intent to distribute and (2) possession of a firearm in furtherance of the drug-trafficking crime. Arthur was sentenced to 481 months' imprisonment, and Andre was sentenced to 181 months' imprisonment. On appeal, both allege a variety of errors were committed during their trial and at sentencing. For the reasons that follow, we affirm their convictions and sentences.

I. BACKGROUND

A. Factual Background

The charges and convictions in this case stem from three different incidents—one in September 2008, one in June 2010, and one in February 2011—and a series of recorded phone conversations between Andre and Arthur.

In September 2008, New Orleans police obtained consent to search a home owned by the parent of one of Arthur's friends, Casey Jones (“Jones”). Arthur was at the home at the time the police executed the search. Police focused their search on Jones's bedroom, and inside they found several different types of ammunition, a mirror covered in white powder residue, a razor blade, and plastic baggies. The police also recovered several firearms that were stored underneath the home. Arthur, Jones, and another friend of theirs, Walter Conley, were arrested that night.

Almost two years later, in June 2010, New Orleans police officers arrived at the home of Andre's and Arthur's mother to execute an arrest warrant for their sister on an unrelated battery charge. When police arrived, they saw contraband through a window and entered the house through the window. While the police were securing the house, they discovered several pieces of crack cocaine in a toilet. Police also confiscated “a wad of money” ($220) from Arthur's person. The only individuals in the home during this incident were Arthur and his younger brother, TH.² After police obtained a search warrant, they also found several firearms in the home. Arthur was arrested and indicted on two charges that were later included in the 2011 superseding indictment, which led to the trial in this case.

While Arthur was in jail following the September 2008 and June 2010 incidents, he spoke on the phone many times with Andre.³ Those jailhouse phone calls were recorded, and agents used recordings of those calls in an attempt to gain insight into Andre's and Arthur's activity outside the jail.

Finally, in February 2011, New Orleans police officers and members of a U.S. Marshals task force went to Andre's apartment to arrest TH for armed carjacking. When police arrived, they knocked on the front door and identified themselves. They continued knocking after seeing one of the individuals in the house try to exit through a window. The front door opened,⁴ and when police entered, they found Andre, Arthur, and TH inside. The police saw ammunition when they entered the apartment. After obtaining a search warrant, they found several firearms, rounds of ammunition, a red sight (a small laser that helps aim a gun), $2,473 in cash, binoculars,ski masks, a scale, and sixty small plastic bags containing what was later identified as 11.2 grams of cocaine base. Arthur, Andre, and TH were all arrested.

B. Procedural Background

On February 24, 2011, Andre and Arthur were both indicted on four counts:

(1) conspiracy to possess with the intent to distribute an unspecified amount of cocaine base in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), and § 846;

(2) conspiracy to possess firearms in furtherance of drug-trafficking crimes of (a) conspiracy to possess cocaine base with intent to distribute and (b) possession of cocaine base with intent to distribute in violation of 18 U.S.C. § 924( o);

(3) possession with intent to distribute an unspecified quantity of cocaine base in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), and 18 U.S.C. § 2; and

(4) possession of four firearms in furtherance of drug-trafficking crimes of (a) conspiracy to possess cocaine base with intent to distribute and (b) possession of cocaine base with intent to distribute in violation of 18 U.S.C. § 924(c)(1)(A) and 18 U.S.C. § 2.

Arthur was also individually charged with possession with intent to distribute 5 grams or more of cocaine base and possession of two firearms in furtherance of a drug-trafficking crime, both dating back to his arrest in June 2010. Following a three-day trial, a jury found Arthur and Andre guilty of all charges. After the preparation of a Presentence Investigation Report (“PSR”) for both Andre and Arthur, the district court imposed sentences.

Arthur was sentenced to 481 months' imprisonment. In determining the quantity of drugs, the court, citing the comments to United States Sentencing Guidelines Manual (“U.S.S.G.”) § 2D1.1, found that the amount seized did not reflect the scale of the offense and determined the quantity involved was greater than 28 grams, making his base level 26. The court also determined that Arthur was subject to a two-level enhancement under U.S.S.G. § 3B1.1 for being an organizer, leader, manager, or supervisor of his younger brother TH. Because TH was a minor at the time, this also added another two-level enhancement under U.S.S.G. § 2D1.1(14)(B), leaving Arthur's base level at 30. Given his category III criminal history, his guidelines range was 121–151 months. Arthur was also subject to a thirty-year minimum sentence: not less than five years for possession of a firearm in furtherance of a drug-trafficking crime and not less than twenty-five years for a second conviction on that charge. After considering the 18 U.S.C. § 3553(a) factors, the court imposed a 481–month sentence on Arthur.

Andre was sentenced to 181 months. The court used the same drug quantity and the same enhancement for supervising TH, which left a base level of 30 and a range of 97–121 months based on his lack of criminal history. Andre was also subject to a minimum five-year sentence for his conviction for possession of a firearm in furtherance of a drug-trafficking crime. After considering the 3553(a) factors, the court imposed a 181–month sentence: the minimum 60 months and an additional 121 months based on the applicable range. Both Arthur and Andre timely appealed.

II. JURISDICTION

This is an appeal of a final judgment and for review of a sentence, and so this Court has jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

III. DISCUSSION

Arthur and Andre allege that a variety of errors were committed during their trial and at sentencing. Arthur raises the following issues on appeal: (1) there was insufficient evidence to support his conviction for the conspiracy charges, the firearm possession charge, and the drug possession charge, all based on the February 2011 incident; (2) the district court erred in the jury instruction for the charge under 18 U.S.C. § 924(c), possession of a firearm in furtherance of a drug-trafficking crime; (3) the district court erred when it failed to instruct the jury that it could not consider Arthur's juvenile conduct in determining guilt; (4) the district court miscalculated Arthur's guidelines range by improperly calculating the amount of crack cocaine and by enhancing his sentence for supervising his younger brother TH; (5) his 40–year sentence was substantively unreasonable; and (6) the district court erred in allowing Agent Pecora's extensive interpretation of the phone calls between Andre and Arthur.

Andre raises the following issues on appeal: (1) there was insufficient evidence to support his conviction for the conspiracy charges stemming from the February 2011 incident; (2) the evidence was insufficient to support his convictions for possession of drugs and firearms; (3) the district court erred in the jury instruction for the charge under 18 U.S.C. § 924(c), possession of a firearm in furtherance of a drug-trafficking crime; (4) his 181–month sentence was substantively unreasonable; (5) the district court erred in allowing Agent Pecora's extensive interpretation of the phone calls between Andre and Arthur; and (6) law enforcement officers violated his Fourth Amendment rights by entering his home without a search warrant. We address each of these concerns below.

A. Sufficiency of the Evidence1. Standard of Review

Both Arthur and Andre properly preserved this issue by moving for acquittal at the close of the Government's case and at the close of all of the evidence. See United States v. Shum, 496 F.3d 390, 391 (5th Cir.2007) (citation omitted). This Court reviews the sufficiency of the evidence de novo. Id. “In deciding whether the evidence was sufficient, we review all evidence in the light most favorable to the verdict to...