     Case: 10-30740     Document: 00512033280         Page: 1     Date Filed: 10/25/2012




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

                                                                            FILED
                                                                         October 25, 2012

                                       No. 10-30740                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellant

v.

COURTNEY DONELL ZENO,

                                                  Defendant - Appellee



                   Appeals from the United States District Court
                       for the Western District of Louisiana
                              USDC No. 2:09-CR-96-1


Before KING, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
        Courtney Donell Zeno was convicted on five counts of distribution of at
least five grams of cocaine base (sometimes referred to as crack cocaine) and one
count of possession, with intent to distribute, at least 50 grams of that
substance. Zeno challenges: the sufficiency of the evidence on two counts; the
admission of a laboratory report for one of those counts; the Government’s




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-30740

closing argument; and non-application of the Fair Sentencing Act, PL111-220,
124 Stat. 2372 (2010) (FSA).        CONVICTIONS AFFIRMED; SENTENCE
VACATED; REMANDED FOR RE-SENTENCING UNDER THE FSA.
                                        I.
      Between April and June 2008, under law-enforcement supervision, a paid
informant purchased crack cocaine from Zeno on six occasions.            For each
purchase, the substance was in the form of         “cookies”, with the purchase
amount’s being based on the number and weight of the cookies.
      Arrest warrants for Zeno were executed on 13 November 2008, upon
performing a traffic stop of Zeno. A search of Zeno and his vehicle revealed, inter
alia: $4,819, rubber-banded in bundles of $1,000 each; what appeared to be
“cookie” crumbs in one of the doors; and the key to a Chevrolet Monte Carlo.
      And, following Zeno’s arrest, a search warrant was procured for the
residence of his uncle, because Zeno was believed to be hiding drug proceeds
there. In conducting that search on the day of Zeno’s arrest, officers discovered:
a safe containing $36,000, again mostly rubber-banded in $1,000-bundles; and
digital scales consistent with those used by drug dealers. And, upon arriving at
the uncle’s residence, officers had identified a Monte Carlo parked next door,
which Zeno had been seen driving on previous occasions. The key found earlier
in the day on Zeno fit the vehicle. A bag in the vehicle contained 129.7 grams of
crack-cocaine cookies; a fingerprint from inside the bag was identified
subsequently as Zeno’s.
      Zeno’s indictment charged, inter alia: six counts of distribution of five
grams or more of cocaine base (counts 1-6); and one count of possession, with
intent to distribute, 50 grams or more of cocaine base (count 7). 21 U.S.C. §
841(a)(1). At his two-day jury trial in April 2010, upon completion of the
Government’s case-in-chief, Zeno moved unsuccessfully for judgment of acquittal
on all counts, including claiming insufficient evidence on counts at issue on

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                                  No. 10-30740

appeal. Zeno did not present evidence. A jury found him guilty on all but one
count. In August 2010, he was sentenced, inter alia, to concurrent terms of life
imprisonment.
                                         II.
      For his six drug-trafficking convictions, Zeno challenges the sufficiency of
the evidence on only two: count 6, distribution of at least five grams of cocaine
base; and count 7, possession, with intent to distribute, at least 50 grams of
cocaine base.      He also challenges:    the admission of a laboratory report
supporting his count-7 conviction; the Government’s closing argument; and the
FSA’s not being applied.
                                         A.
      Where, as here, defendant moves for judgment of acquittal at the close of
the Government’s case and does not present evidence, a sufficiency challenge is
preserved and the issue is reviewed de novo. E.g., United States v. Delgado, 256
F.3d 264, 273 (5th Cir. 2001). The “verdict will be affirmed if a reasonable trier
of fact could conclude from the evidence that the elements of the offense were
established beyond a reasonable doubt”. Id. The evidence is not evaluated for
weight or credibility, but “in the light most favorable to the verdict, drawing all
reasonable inferences to support the verdict”. Id. at 274. In short, review is
“highly deferential to the verdict”. United States v. Harris, 293 F.3d 863, 869
(5th Cir. 2002).
                                         1.
      To convict Zeno on count 6, the Government had to prove, beyond a
reasonable doubt: (1) Zeno knowingly distributed a controlled substance; (2) the
substance was cocaine base; and (3) the quantity was at least five grams. 21
U.S.C. § 841(a)(1). Zeno claims insufficiency only for the second element.
      Along that line, the lab report analyzing the count-6 evidence identified
the substance as cocaine, rather than cocaine base. At trial, however, the

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                                   No. 10-30740

chemist who analyzed the substance testified she had “no doubt” it tested
positive for cocaine base.
      “[I]t is the sole province of the jury . . . to weigh conflicting evidence and
evaluate the credibility of witnesses”. United States v. Millsaps, 157 F.3d 989,
994 (5th Cir. 1998) (citation omitted). Such review “gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in testimony, to weigh
the evidence and to draw reasonable inferences from basic facts to ultimate
facts”. Id. (internal quotation marks and citation omitted). A reasonable juror
could reconcile the conflicting evidence in favor of the Government.
      This case does not involve different drugs; rather, it concerns only sales of
crack-cocaine cookies. And, Zeno does not contend the cookies for the convictions
for counts 2-5 were not cocaine base. Because the count-7 cookies were admitted
without objection into evidence, and the jury had photographic and video
evidence of the cookies in the other transactions, the jury was able to compare
the cookies and reasonably conclude those for count 6 were the same substance.
                                         2.
      To convict Zeno on count 7, the Government had to prove, beyond a
reasonable doubt: (1) Zeno knowingly possessed a controlled substance; (2) the
substance was cocaine base; (3) he possessed it with intent to distribute it; and
(4) the quantity was at least 50 grams. 21 U.S.C. § 841(a)(1). Zeno claims
insufficiency for elements two and four.
                                         a.
      Included in the challenge to the substance element is Zeno’s challenge,
preserved at trial, to Government exhibit 45, a lab report for the cookies seized
from the Monte Carlo (approximately 130 grams). Due to chain-of-custody
discrepancies, he asserts the lab-report results are not the actual results for the
count-7 evidence.



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                                  No. 10-30740

      Evidentiary rulings are reviewed for abuse of discretion. United States v.
Harper, 527 F.3d 396, 407 (5th Cir. 2008). Such abuse occurs if the ruling “is
based on an erroneous view of the law or a clearly erroneous assessment of the
evidence”. United States v. Jackson, 636 F.3d 687, 692 (5th Cir. 2011) (citation
omitted).   Error is reviewed for harmlessness, with a conviction’s being
overturned only if defendant’s substantial rights were affected. FED. R. EVID.
103(a); Jackson, 636 F.3d at 692.
      At a jury trial, when defendant contests whether proffered evidence is that
seized, the Government must make a prima-facie showing of authenticity to
permit admission, which requires substantial evidence from which a reasonable
juror could infer authenticity. United States v. Smith, 481 F.3d 259, 265 (5th
Cir. 2007) (testimony of officers and analyst in chain-of-custody sufficient to
establish authenticity). If that is satisfied, authenticity is for the jury to
determine. Id. “Any break in the chain of custody goes to the weight of the
evidence, not its admissibility.” Id. (citation omitted).
      The Government established: the crack-cocaine cookies in the Monte Carlo
were seized by an Officer on 13 November 2008; he maintained custody until
giving them to evidence-custodian Sumney; and Sumney submitted the drugs to
the North Louisiana Criminalistics Laboratory (NLCL) for analysis. Protocol
required Sumney to assign an evidence number to each item received; NLCL
assigned a separate number for the same item for its own tracking system; and
signed, dated forms were filled out by both parties to coincide with their
individual identifications and evidence receipt/transfers. Sumney testified to
submitting the evidence to NLCL on 17 November 2008, which date is on the
transfer receipt; however, the date on the document for Sumney’s receipt of the
evidence from the Officer is 3 December 2008. When questioned about the
discrepancy, Sumney stated the 3 December entry was a mistake; it should have
been 17 November. Again, the cookies were seized on 13 November.

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                                   No. 10-30740

        In the light of this discrepancy, the Government presented testimony from
the Officer, Sumney, and the chemist to further corroborate that the evidence
tested was that seized on 13 November. Zeno did not object to this testimony,
the admission of the cookies, or to documents reflecting collection and storage of
them.
        There was no abuse of discretion in admitting the lab report. In addition,
when combined with other evidence provided by the Government, there was
sufficient evidence from which a reasonable juror could find, beyond a reasonable
doubt, that the count-7 substance was cocaine base.
                                         b.
        As for the challenged quantity, the Government elicited testimony relating
to the weight in grams of a crack-cocaine cookie, such that a reasonable juror
could infer the weight of the count-7 cookies exceeded the 50-gram threshold.
                                         B.
        Zeno next contends the Government’s closing argument was so prejudicial
that it denied him a fair trial. He asserts the Government instructed the jury
incorrectly that the earlier-referenced count-6 lab report, stating the substance
contained cocaine, was sufficient to convict for cocaine base. In rebuttal closing
argument, the Government stated, inter alia: “The concern is that the item, the
cookie of crack, the cocaine base, has to contain cocaine.          Otherwise, it’s
whatever other junk is in there mixed with it other than cocaine. So if you have
crack, it’s a combination of cocaine and other things.”
        Because Zeno failed to object to these statements at trial, review is only
for plain error. E.g., United States v. Mares, 402 F.3d 511, 515 (5th Cir. 2005).
For reversible plain error, Zeno must show a clear or obvious error that affected
his substantial rights. E.g., Puckett v. United States, 556 U.S. 129, 135 (2009).
If he does so, our court has discretion to remedy the error, but only if it seriously
affects the fairness, integrity, or public reputation of judicial proceedings. Id.

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                                 No. 10-30740

Even a timely objection to prosecutorial remarks places a heavy burden on
defendant to prove fair-trial denial. United States v. Thompson, 482 F.3d 781,
785 (5th Cir. 2007). Remarks are viewed in the light of the trial as a whole;
inappropriate comments alone do not compel reversal. Id.
      The Government’s statement that crack cocaine contains cocaine is
inaccurate. E.g., United States v. Butler, 988 F.2d 537, 542 (5th Cir. 1993)
(cocaine becomes cocaine base when treated so as to change its pharmacological
state). Further, no evidence was introduced at trial to form the basis for the
Government’s challenged statements. Accordingly, they were improper.
      Viewed in the light of the trial as a whole, however, the statements do not
constitute reversible plain error because Zeno’s substantial rights were not
affected.   The Government presented substantial evidence to support the
conviction. Moreover, the challenged statements were only a minor portion of
the closing argument; and, the jury was instructed to base its verdict solely on
the evidence, which did not include statements made in closing argument.
                                       C.
      Zeno’s final claim is that the FSA should have been applied to his
sentence. The Government agrees.
      Signed into law on 3 August 2010, the FSA increased the threshold
quantities for mandatory minimum sentences for crack-cocaine offenders:
distribution of at least five grams was increased to 28 grams; and possession,
with intent to distribute, at least 50 grams was increased to 280 grams. PL 111-
222, 124 Stat. 2372 (2010). When the FSA was enacted, it was unclear whether
it applied to pre-Act offenders sentenced post-Act, such as Zeno.
      The district court did not address the Act at Zeno’s sentencing on 31
August 2010, approximately four weeks after the FSA was enacted. Nor did
Zeno object to the Act’s not being applied. The court ruled Zeno was a career
offender, with an advisory Guidelines sentencing range of 360 months to life for

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                                   No. 10-30740

all counts, with mandatory life imprisonment for count 7. U.S.S.G. § 4B1.1(a);
21 U.S.C. § 841(b)(1)(A)(iii). He was sentenced to concurrent terms of life
imprisonment for each count.
      On 21 June 2012, however, during the pendency of this appeal, Dorsey v.
United States, 132 S. Ct. 2321 (2012), held the FSA applies to pre-Act offenders
sentenced post-Act. (Pursuant to Zeno’s unopposed motion, proceedings in this
appeal had been stayed pending that decision.) And, on 25 July 2012, United
States v. Escalante-Reyes, 689 F.3d 415 (5th Cir. 2012) (en banc), held:
      [W]hen the law at the time of trial or plea is unsettled, but becomes
      clear while the case is pending on appeal, review for the second
      prong of the “plain error” test [whether clear or obvious error]
      properly considers the law as it stood . . . at the time of the appellate
      court’s decision (“time of appeal”).
Id. at 418.
      Because Zeno raises the issue of FSA-application for the first time on
appeal, review is again only for plain error. Pursuant to Dorsey and Escalante-
Reyes, not applying the FSA was clear or obvious error. To show the error
substantially affected his rights, Zeno must show “a reasonable probability that,
but for the district court’s [not applying the FSA] . . . he would have received a
lesser sentence”. United States v. Mudekunye, 646 F.3d 281, 289 (5th Cir. 2011).
Four of the distribution counts of conviction do not satisfy the new 28-gram
threshold, and the possession, with intent to distribute, count of conviction does
not satisfy the new 280-gram threshold. This substantially affects Zeno’s
sentence. He has shown reversible plain error.
      It is within our earlier-described discretion to correct this error. The
inquiry is “case-specific and fact-intensive”. Puckett, 556 U.S. at 142. Because
of Dorsey and Escalante-Reyes, the substantial disparity between the imposed



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                                 No. 10-30740

sentence and the FSA, and the request of both parties to vacate and remand for
re-sentencing, we exercise our discretion to do so.
                                      III.
      For the foregoing reasons, all convictions are AFFIRMED; the sentence is
VACATED; and this matter is REMANDED for re-sentencing under the Fair
Sentencing Act.




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