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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        September 17, 2013

                                       No. 12-30568                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee
v.

JOHNNY SIMONS,

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:11-CR-189


Before DAVIS, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Pursuant to a plea agreement, Appellant Johnny Simons (“Simons”)
pleaded guilty to possession with intent to distribute five grams of
methamphetamine in violation of 21 U.S.C. § 841(a)(1). His guideline range was
92 to 115 months of imprisonment. However, the district court imposed an
upward variance sentence of 144 months based on a letter he wrote from jail in
which he informed his drug cohorts of the identities of undercover agents.
Simons now appeals his conviction and sentence.

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 12-30568


      I.    INSUFFICIENT FACTUAL BASIS
      Simons contends that the factual basis is insufficient to support his guilty
plea conviction for aiding and abetting the possession with intent to distribute
5 grams or more of methamphetamine. 21 U.S.C. § 841(a)(1); 18 U.S.C. § 2.
Because Simons raises this contention for the first time on appeal, we must
review it for plain error. United States v. Castro-Trevino, 464 F.3d 536, 540-41
(5th Cir. 2006) (reviewing claim of insufficient factual basis for plain error). “An
error is plain, in this context, if it is clear or obvious what the Government must
prove to establish the offense, and, notwithstanding that clarity, the district
court accepts a defendant’s guilty plea without an adequate factual basis.”
United States v. Alvarado-Casas, 715 F.3d 945, 951 (5th Cir. 2013) (citation and
internal quotation marks omitted).       On the other hand, if a factual basis
challenge is not entirely clear under existing precedent or is “subject to
reasonable dispute,” the district court’s acceptance of the guilty plea does not
constitute plain error. Id. at 952 (quoting United States v. Broussard, 669 F.3d
537, 550-51 (5th Cir. 2012)).
      The elements of the offense of possession with intent to distribute are
“(1) knowingly (2) possessed contraband (3) with the intent to distribute it.”
United States v. Polk, 56 F.3d 613, 619-20 (5th Cir. 1995); 21 U.S.C. § 841(a)(1).
To demonstrate aiding and abetting under 18 U.S.C. § 2, “the government must
show that a defendant associated with a criminal venture, purposefully
participated in the criminal activity, and sought by his or her actions to make
the venture succeed.” Id. at 620.
      Simons argues that the district court erred in accepting his guilty plea in
the absence of evidence proving that he possessed the drugs.             The facts
underlying his conviction are undisputed. At Simons’s guilty plea hearing,
Trooper Haynes, who was assigned to the DEA Task Force, testified that on

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June 2, 2011, Agent Chris Jordan contacted co-defendant Lauralyn Thompson
and arranged to purchase an ounce of methamphetamine from her. However,
when Agent Jordan, who was acting undercover, met with Thompson she had no
methamphetamine. Thompson then made some phone calls in an attempt to
obtain methamphetamine. She reached Simons who told her that “if she would
come get him, then they could get it.” Ultimately, Simons told Thompson that
she could purchase methamphetamine from “Fat Boy,” a nickname for Frank
Smith, another co-defendant. Simons thereafter called Smith to inquire about
methamphetamine for Thompson. Thompson then called Smith, inquiring
whether Simons had talked to him, and Smith responded that he had talked to
Simons. Thompson informed Smith that “that ounce was for me.” Thompson
then purchased 9.5 grams of pure methamphetamine from Smith.
       Trooper Haynes testified that the phone calls between Thompson and
Simons were recorded “on Title III.”1 He further testified that “the telephone
calls between Ms. Thompson and Mr. Frank Smith were also on Title III.”
Trooper Haynes explained that Simons acted as the “go-between” for Thompson
and Smith. The court asked Trooper Haynes whether Simons “had his hand on
the dope?” Trooper Haynes responded: “On this particular day, no, ma’am, he
didn’t.”     The court then asked Simons whether he agreed with the facts
recounted by the witness, and Simons stated that he agreed with the testimony.
           As previously set forth, Simons argues that the district court erred in
accepting his guilty plea because there was no evidence he ever possessed
methamphetamine. A defendant “need only aid and abet, however, rather than
commit, each element of the crime.” United States v. Cauble, 706 F.2d 1322,




       1
         Trooper Haynes was apparently referring to Title III of the Omnibus Crime Control
and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq., which regulates electronic surveillance.


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1339 (5th Cir. 1983). Thus, the factual basis is not insufficient simply because
he did not commit the element of possession.
      Citing United States v. Jackson, 526 F.2d 1236 (5th Cir. 1976), Simons
contends that to prove that he aided and abetted possession, the factual basis
must “link the defendant to both aspects of the crime, possession and intent to
distribute.” In that case, Appellant Jackson argued that the evidence was
insufficient to sustain his conviction for aiding and abetting possession with
intent to distribute cocaine. The evidence at trial proved that Jackson had
introduced his co-defendant Bischoff to co-defendant Thurman, which aided in
the distribution of the drugs. Id. at 1237. This Court explained that Jackson
was improperly charged with possession because although the evidence was
sufficient to sustain the aiding and abetting charge of distribution, it failed to
prove he aided and abetted possession of the cocaine with intent to distribute.
Id. This Court further explained that although he knowingly assisted in setting
up the transaction and intended for the venture to succeed, there was no
“evidence that he helped Thurman obtain the cocaine, or that he exercised any
control over it” Id. at 1238. Here, although Simons knowingly assisted in
arranging the purchase, he exercised no control over the methamphetamine.
At first blush, this language in Jackson appears to provide some support for
Simons’s position that the factual basis is insufficient to show that he aided and
abetted the element of possession.
      Subsequently, however, the Eleventh Circuit expounded on this Court’s
holding in Jackson. In United States v. Bascaro, 742 F.2d 1335 (11th Cir. 1984),
abrogated on other grounds by United States v. Lewis, 492 F.3d 1219 (11th Cir.
2007), the Eleventh Circuit explained that this Court found the evidence
insufficient to show that Jackson had aided and abetted possession because
there was “an absence of evidence that Jackson had helped his co-defendant
obtain the cocaine; rather, it was clear that Jackson did not aid or abet his

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colleague until after the cocaine had come into the co-defendant’s possession.”
Bascaro, 742 F.2d at 1364. In contrast to the scenario in Jackson, in Bascaro,
the evidence proved the appellants’ “efforts were directed toward assisting [a
co-conspirator] in acquiring” the drugs. Id. The Eleventh Circuit held that the
“opinion in Jackson is thus wholly consistent with our conclusion that [the
appellants] were properly convicted of possession under an aiding and abetting
theory.” Id.2
       In the case at bar, the factual basis demonstrated that co-defendant
Thompson did not have methamphetamine when she met with the undercover
agent. The factual basis also demonstrated that Simons’s actions in calling
Smith assisted Thompson in acquiring the methamphetamine. Applying the
Eleventh Circuit’s interpretation of Jackson to the instant case, we conclude that
the factual basis is sufficient to show that Simons aided and abetted in
possessing with intent to distribute. We recognize that we are not bound by the
Eleventh Circuit’s interpretation. Nonetheless, assuming we did not find that
interpretation wholly persuasive, the district court’s acceptance of Simons’s
guilty plea does not constitute plain error simply because his challenge is “not
entirely clear under existing authority.” Alvarado-Casas, 715 F.3d at 952.
Accordingly, Simons has not shown that the district court plainly erred in
finding the factual basis sufficient.




       2
          The Eleventh Circuit had to either follow or distinguish Jackson because it is bound
by cases decided by the Fifth Circuit prior to the creation of the Eleventh Circuit. Bonner v.
City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir. 1981).



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      II.   SENTENCING
            A.     Criminal History Point Calculation
      Simons contends that the district court erred in calculating his criminal
history points. Simons did not make this objection before the district court, and
thus, this Court reviews it for plain error.
      He argues that two of his prior convictions should not have been counted
because the sentences in those cases were imposed more than ten years prior to
the instant offense conduct. § 4A1.2(e). Those two convictions added 2 points
to his criminal history calculation. Relying on paragraph 49 of the presentence
report (“PSR”), the Government responds that because Simons’s probation was
revoked in both of the relevant cases on May 27, 2004, and he was sentenced to
five months in jail, the date that he was released in 2004 is the new date to
calculate whether the ten-year period had elapsed. § 4A1.2(k)(2). In his reply
brief, Simons asserts that paragraph 49 refers to a different offense in which his
probation was revoked. He asserts the PSR does not reflect that the sentences
in question were ever revoked.
      It is not clear from the PSR whether the two convictions should be counted
in Simons’s criminal history calculation. In any event, if it was error, it was not
plain error. If the 2 points for the challenged convictions are excised, he would
have a total of 7 instead of 9 criminal history points. Simons’s criminal history
category was calculated as a IV, and the range for that category is 7-9 points.
Thus, his criminal history category would not have changed had the two points
been subtracted from the total. The alleged error would not have changed the
guideline range, which was 92 to 115 months of imprisonment. The district
court imposed a sentence of 144 months, which is an upward variance based on
the sentencing factors under 18 U.S.C. § 3553(a), which will be discussed below.
An error in a sentencing calculation affects a defendant’s substantial rights if
there is a reasonable probability that, but for the district court’s misapplication

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of the guidelines, the defendant would have received a lesser sentence. United
States v. John, 597 F.3d 263, 285 (5th Cir. 2010). Because the district court
could reinstate the same sentence on remand, the alleged error does not
constitute plain error. United States v. Wheeler, 322 F.3d 823, 828 (5th Cir.
2003). Simons has wholly failed to show plain error.
              B.      Minimal Role in the Offense
       Simons contends that the district court failed to consider that he played
a minimal role in the offense and that he should have received a 4-level decrease
in his base offense level pursuant to § 3B1.2. Section 3B1.2 provides that “[i]f
the defendant was a minimal participant in any criminal activity, decrease by
4 levels.” Simons now asserts that he argued at his sentencing hearing that he
was a minimal participant and the Government “agreed and the sentencing
court so found. However, no decrease in the offense level was applied. A role in
the offense adjustment of 4 would result in a level of 22 and a guideline range
of 63-78 month[s].” That is the extent of Simons’s briefing. He failed to cite any
authority or to the record, much less provide legal analysis, and therefore, he has
abandoned this issue. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.
1993).3

       3
          In any event, even if the issue is not abandoned, his briefing does not paint a correct
picture of the record. Counsel did not file any written objections to the PSR with respect to
the lack of a § 3B1.2 decrease based on his minimal role in the offense. Moreover, at the
sentencing hearing, the district court asked both attorneys whether they “agree[d] that that
is a proper calculation of the guideline range in this case?” Both the Government and Simons’s
counsel responded affirmatively. Thus, Simons must show plain error.
        Defense counsel did refer to Simons’s minimal involvement in the offense; however, it
was in the context of arguing that “his initial involvement was so minimal that we don’t
believe [an upward] variance is in order.” The Government responded by stating that defense
counsel was “correct about the minimal nature” of Simons’s involvement. Subsequently, the
district court noted that Simons “did have a minimal role in this overall conspiracy.”
        In United States v. Fierro, 38 F.3d 761 (5th Cir. 1994), the Appellant argued that the
district court erred in not considering a downward adjustment based on his minor or minimal
role in the conspiracy pursuant to § 3B1.2. However, the Appellant had failed to make this
objection to the district court. This Court held that the Appellant was “not entitled to
appellate relief on this point, because questions of fact capable of resolution at sentencing can

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              C.      Obstruction of Justice Guideline
       As previously noted, the district court imposed an upward variance
sentence based on Simons’s writing a letter to his drug cohorts identifying
undercover agents.        Simons argues that, instead of imposing the upward
variance, the district court should have considered increasing his offense level
under § 3C1.1.        Section 3C1.1 provides that if a defendant obstructs the
investigation, prosecution, or sentencing of the instant offense, the offense level
is increased by 2 levels.
       Simons did not argue before the district court that he should receive an
increase under § 3C1.1 instead of an upward variance. Instead, Simons’s
counsel stated that he thought the upward variance might entail a lengthier
sentence than if Simon was “accused and convicted of obstruction of justice.”
Although Simons’s counsel was referring to a conviction of the offense of
obstruction of justice, the district court and the Government then began
discussing it as a “sentencing calculation,” which presumably means § 3C1.1.
Nonetheless, although the topic of an increase for obstruction was broached,



never constitute plain error.” Id. at 774. Likewise, in the instant case, Simons did not object
to the district court’s failure to find that he had a minimal role in the offense under § 3B1.2.
        Moreover, although the district court generally stated that Simons had a minimal role
in the overall conspiracy, it is not clear that it would have found his role minimal in the
context of § 3B1.2. The commentary to § 3B1.2 provides that the minimal participant
adjustment “is intended to cover defendants who are plainly among the least culpable of those
involved in the conduct of a group. Under this provision, the defendant’s lack of knowledge
or understanding of the scope and structure of the enterprise and of the activities of others is
indicative of a role as minimal participant.” § 3B1.2 cmt. n. 4 (emphasis added). While in jail
awaiting sentencing, Simons wrote a letter to his drug dealing cohorts informing them of the
names and identities of the undercover agents and a cooperating witness involved in the
instant investigation. As will be discussed in more detail below, this letter was the principal
reason the district court applied an upward variance to Simons’s sentence. The district court
found that the letter caused the agents’ lives to be in danger. Under these circumstances, it
does not appear that the court would find he was “plainly among the least culpable” in the
group. Thus, Simons has not shown that the district court plainly erred in not granting him
a decrease for having a minor role under § 3B1.2.


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Simons did not make the argument that he should receive this increase in lieu
of an upward variance. In fact, at the sentencing hearing, the district court
asked both attorneys whether they agreed that the guideline range had been
properly calculated, and both the Government and Simons’s counsel responded
affirmatively. Thus, this claim will be reviewed for plain error.
      Simons points out that the Government and the district court both
mistakenly thought that the obstruction of justice had to occur before the guilty
plea. However, as the “Sentencing Guidelines make clear, the obstructive
conduct can occur at any time in the proceedings, including prior to sentencing.”
United States v. Olguin, 643 F.3d 384, 401 (5th Cir. 2011). The district court’s
misapprehension that the obstructive conduct had to occur prior to the guilty
plea is of no moment because the district court could have increased the offense
level under § 3C1.1 in addition to imposing an upward variance. This Court has
explained that, when determining an upward variance sentence, a district court
is not prohibited from considering factors that the guidelines have already taken
into consideration. United States v. Williams, 517 F.3d 801, 810-11 (5th Cir.
2008). Accordingly, Simons has not shown that the district court plainly erred
in failing to increase his sentence for obstruction of justice in lieu of imposing an
upward variance.
             D.    Substantively Unreasonable Sentence
      Simons contends that the district court’s failure to consider the
adjustments for minimal role and obstruction of justice and its incorrect
calculation of criminal history points “resulted in an increased sentence without
adequate explanation and resulted in a sentence greater than necessary.”
Simons did object to the upward variance.
      This Court reviews sentences for reasonableness under an abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 46–50 (2007). First, it
must be determined whether the district court committed any significant

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procedural error, such as improperly calculating the guideline range. Id. As set
forth above, contrary to Simons’s contentions, he has not shown that the district
court committed reversible error in calculating his sentence.         If there is no
procedural error or the error is harmless, this Court then reviews the
substantive reasonableness of the sentence. Id. “In determining the substantive
reasonableness of a sentence, we consider ‘the totality of the circumstances,
including the extent of any variance from the Guidelines range.’” United States
v. Fraga, 704 F.3d 432, 439-40 (5th Cir. 2013) (footnote omitted). Further, if “the
sentence is outside the Guidelines range, we ‘may consider the extent of the
deviation, but must give due deference to the district court’s decision that the
§ 3553(a) factors, on a whole, justify the extent of the variance.’” Id. at 440
(footnote omitted). “With respect to considering the § 3553(a) factors, ‘[a]
non-Guideline sentence unreasonably fails to reflect the statutory sentencing
factors where it (1) does not account for a factor that should have received
significant weight, (2) gives significant weight to an irrelevant or improper
factor, or (3) represents a clear error of judgment in balancing the sentencing
factors.’” Id. (footnote omitted).
      Simons points out that, as a result of writing the letter that identified the
undercover agents, he lost his acceptance of responsibility reduction and any
downward departure for substantial assistance under § 5K1.1. Simons claims
that he likely would have been sentenced to the mandatory minimum of 60
months had he not written the letter. However, Simons does not actually argue
that the loss of these sentence reductions constituted error. Instead, Simons
contends that the district court failed to take into consideration that he had lost
the reductions when it determined his upward variance sentence. As explained
below, this contention is without merit.
      Simons also asserts that the district court failed to provide an adequate
explanation for imposing “a sentence that was 4 years greater than the top of the

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guideline range considering all proper adjustments.” As previously set forth,
Simons has not shown that the guideline range of 92 to 115 months was
erroneously calculated. Thus, the upward variance sentence of 144 months is
only a 29-month increase from the top of the guideline range—not a 4-year
increase. In light of the letter identifying undercover agents, Simons has failed
to show that a 29-month variance from the guideline range is unreasonable or
constitutes an abuse of discretion. See, e.g., United States v. Lopez–Velasquez,
526 F.3d 804, 805–07 (5th Cir. 2008) (affirming as reasonable a 42-month
departure from a 30-month guideline maximum).
      Further, the court did explain its reasoning at the sentencing hearing as
follows:
            The Court notes that this sentence is a variance, an upward
      variance from the guidelines. And the Court has based that upward
      variance on several factors. The main factor that the Court bases
      this upward variance is the letter that Mr. Simons wrote from jail.

            Mr. Simons, the Court doesn’t believe this was your attempt
      to get additional information from other drug colleagues to give
      more information to the Government.

             In the letter you brag about how little information you gave
      to the Government and you identify three undercover cops by their
      names, one with the fake driver's license number that was being
      used, and with descriptions. And that is – puts those people in
      danger. You detail how the federal government was conducting its
      undercover research in this matter in the letter. And this is a
      serious breach, in the Court’s mind, of your representations to the
      Court that you are accepting responsibility for what you did. The
      letter indicates a refusal to withdraw from criminal conduct and
      indeed shows that you’re continuing to act in furtherance of any
      type of drug conspiracy. It shows a plain intent to re-integrate into
      a drug distribution network upon release. And your lack of remorse
      or contrition for the crimes that you have committed are evidenced
      by this letter and by your desire to protect the other dealers from
      law enforcement.


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            And above all, once again, it is the danger in which you placed
      the three officers and their families by trying to provide their
      identifying information to criminals attempting to evade detection.

            The Court feels that these actions put you outside of the
      heartland cases which composes the sentencing guidelines and for
      which the sentencing guidelines are designed to address.

            The sentence has been selected after also considering the
      factors in 18 U.S.C. [section] 3553(a) pertaining to the defendant’s
      criminal history, personal characteristics, his involvement in the
      instant offense, and his actions after he pled guilty.

      Contrary to Simons’s assertion, the court, at least implicitly, recognized
that Simons lost the reduction for acceptance of responsibility when it stated
that his writing the letter was a serious breach of his representation to the court
that he had accepted responsibility for his conduct. Further, the court expressly
considered § 3553(a) factors at both the sentencing hearing and in its Statement
of Reasons. Simons has not shown that the upward variance sentence was
substantively unreasonable.
      III.   CONCLUSION
      For the above reasons, the district court’s judgment is AFFIRMED.




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