                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                                                                 F I L E D
           IN THE UNITED STATES COURT OF APPEALS 20, 2007
                                                July
                    FOR THE FIFTH CIRCUIT
                                                                              Charles R. Fulbruge III
                                                                                      Clerk


                                       No. 06-10730


UNITED STATES OF AMERICA

                                                  Plaintiff - Appellee
v.

ANTHONY STEVEN AGUILAR, also
known as Antonio; JEFFREY RYAN;
JEFFREY ALAN BREVICK

                                                  Defendants - Appellants



                   Appeals from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:05-CR-195-5


Before JOLLY, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       Appellants Aguilar and Brevick were convicted of conspiracy to possess
with intent to distribute and to distribute more than 50 grams of pure
methamphetamine. Appellant Ryan was acquitted on that count, but was
convicted of maintaining a drug-involved premises. The appellants appeal their




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 06-10730

convictions and sentences on numerous grounds. For the reasons that follow, we
AFFIRM.


                                        I.
      We consider first the issues raised by Aguilar. He argues that the district
court erred by denying his motion to suppress and by relying on unreliable
hearsay in sentencing him.
                                       A.
      Aguilar moved to suppress evidence of methamphetamine found in a box
that he threw into an open garage while walking away from police officers. The
police were at the apartment complex, where Aguilar lived with his girlfriend,
to investigate a report of shots being fired. One of the officers seized the box
from the garage and opened it, without a warrant. Later, the officer obtained
consent to search the garage from a person who was an overnight guest at the
apartment, who had parked her vehicle in the garage from which the box was
seized. The district court admitted the evidence on the basis that it inevitably
would have been discovered in the consensual search.
      Even if we assume that the district court erroneously applied the
inevitable discovery exception to the warrant requirement, any error is
harmless. There was little testimony about the methamphetamine found in the
box, the government did not introduce any physical evidence or chemical
analysis of the substance, and the prosecutor did not refer to the evidence in
closing argument. There was overwhelming evidence that Aguilar purchased ice
methamphetamine in quantities of quarter-pounds and larger from two different
suppliers, that he sold ice on numerous occasions in quantities ranging from
grams to ounces, and that he and a supplier opened a used car business together
as a front for their drug business. Although the evidence against Aguilar
consisted largely of the testimony of informants, there is no basis for concluding


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that the jury would have rejected the informant testimony in the absence of the
evidence of the methamphetamine found in the box.
                                        B.
      Aguilar raises two issues relating to his sentence. First, he argues that
the district court erred by increasing his base offense level by two levels for his
role as a supervisor or manager. The Presentence Report (“PSR”) recommended
the enhancement based on information that, in an interview with federal agents,
a co-defendant, Flores, told the agents that Aguilar employed Matthew Becker
as a runner. Aguilar’s counsel filed an objection to the PSR, stating: “The
defendant denies knowing Matthew Becker and Matthew Becker did not testify
at trial.”   In response to the objection, the government stated that the
information was developed as a result of an extensive investigation and
numerous statements of witnesses and participants believed to be reliable. In
an addendum to the PSR, the probation officer disagreed with Aguilar’s objection
and stated that the information relied on for the enhancement was derived from
a DEA Form 6 prepared by Agent McAuliffe on March 23, 2004, which contains
an accurate summary of information provided by Francisco Flores during an
interview with government agents.
      On June 27, three days before the sentencing hearing, the district court
entered an order stating that it had reviewed the PSR and the objections and
had tentatively concluded that the objections were without merit. The court
stated that it was advising the parties of its tentative conclusion so that it could
be taken into account by the parties in determining the presentations to be made
at the sentencing hearing. At the sentencing hearing on June 30, the district
court asked Aguilar if he wished to offer any evidence in opposition to the PSR,
and, through his counsel, he declined. His counsel objected to the enhancement,
stating: “It’s alleged that Mr. Aguilar supervised a Matthew Becker, and
Matthew Becker’s name apparently only comes from one of these people who are


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felons. And nobody has ever talked to Matthew Becker, no law enforcement
agent has talked to a Matthew Becker, or even found that one exists.” Aguilar
did not testify at the sentencing hearing.
      Flores’s omission of any mention of a runner in his trial testimony does not
make that testimony contradictory or inconsistent with what he told the federal
agents in the interview, as reported by the PSR. Because Aguilar did not
present any evidence in opposition to the PSR, but simply made a conclusory
objection, the district court did not err by adopting the PSR’s findings. See
United States v. Peters, 283 F.3d 300, 314-15 (5th Cir. 2002) (affirming role
enhancement where defendant “objected to the enhancement based on his
activities, [but] he did not offer evidence that refuted the findings of the PSR”).
      Aguilar acknowledges that his second argument with respect to his
sentence -- that is, that Crawford v. Washington, 541 U.S. 36 (2004), should
apply when hearsay information is used to dramatically increase a defendant’s
sentence -- is foreclosed by United States v. Beydoun, 469 F.3d 102, 108 (5th Cir.
2006) (“there is no Crawford violation when hearsay testimony is used at
sentencing, rather than at trial”). He raises the issue to preserve it for further
review.
                                        II.
      We now consider the issues raised by Brevick. He argues that his initial
trial counsel rendered ineffective assistance by failing to inform him of a plea
offer, that the district court erred by admitting evidence of his possession of
methamphetamine when he was arrested after the conspiracy had ended, that
the district court erred by allowing his common-law wife to testify against him
without inquiry into the applicability of the marital privilege, and that the
evidence is insufficient to support the district court’s findings at sentencing as
to the weight and purity of the methamphetamine for which he was held
accountable.

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                                        A.
      Following an evidentiary hearing on Brevick’s motion for a new trial based
on ineffective assistance, the district court found that the government had never
made a plea offer to Brevick’s initial trial counsel, but instead that the
prosecutor merely mentioned to counsel that the government might be willing
to enter into a cooperation agreement with Brevick. The district court found
that counsel relayed this conversation to Brevick, and that Brevick indicated
that he was not interested. The court concluded that counsel reasonably did not
pursue the matter further, and also noted that it probably would not have
accepted such a plea. Brevick has not carried his burden of demonstrating that
the district court’s factual findings are clearly erroneous. We therefore reject his
claim of ineffective assistance of counsel.
                                        B.
      The indictment alleged that the conspiracy continued until December 14,
2005, the date of the indictment. When Brevick was arrested a little less than
three weeks later, on January 4, 2006, at his home, the arresting officers found
several baggies of methamphetamine and drug paraphernalia under the bed
where Brevick was hiding. The district court overruled Brevick’s objection that
the evidence was irrelevant, and admitted it as to the issues of intent and
absence of mistake or accident.        Brevick argues that the evidence was
inadmissible under Fed. R. Evid. 404(b), that he did not challenge intent or lack
of accident or mistake, and that we must remand because the district court
failed to find that the evidence was relevant to a trait other than his character
or that its probative value was not substantially outweighed by undue prejudice.
See United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en banc).
      Any error in admitting evidence of the methamphetamine seized when
Brevick was arrested is harmless. The district court instructed the jury that the
seizure of methamphetamine in Brevick’s home occurred after the conspiracy


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                                 No. 06-10730

charged in the indictment had ended and thus it was not proof that he
participated in the conspiracy, and that the evidence was admitted against
Brevick, who was contending that he was not guilty, solely as to the issues of
intent and absence of mistake or accident. The government did not refer to the
evidence in its closing argument, and the evidence of Brevick’s guilt was
overwhelming: several witnesses testified that they sold ice methamphetamine
to Brevick; other witnesses testified that Brevick supplied ice to them; Brevick
was identified by law enforcement officers during surveillance of a warehouse;
and another witness, Salee, testified that Brevick opened his own warehouse to
distribute ice after Salee’s warehouse was shut down.
                                       C.
      The district court did not commit reversible error by allowing Lynne
Gerganess to testify against Brevick without first conducting a hearing to
determine if she voluntarily waived the marital privilege or whether any of her
testimony would fall within the scope of marital communications covered by the
privilege. On the witness stand, Gerganess testified that she did not consider
herself to be Brevick’s common-law wife.        She disavowed a handwritten
declaration, signed by her and Brevick, purporting to declare that they were
common-law spouses. Furthermore, Brevick has not identified any testimony
by Gerganess that would fall within the scope of the communications aspect of
the marital privilege.
                                       D.
      The district court rejected Brevick’s objections to the PSR and accepted the
PSR’s determination that Brevick was responsible for more than 1.5 kilograms
of ice methamphetamine. Brevick argues that there was no specific, reliable
evidence that the methamphetamine was ice as opposed to regular
methamphetamine and thus his base offense level should have been 34 rather
than 38. We reject this contention. The district court’s findings are supported


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                                  No. 06-10730

by the evidence presented at trial and by the debriefing statements of Brevick’s
suppliers, as reported in the PSR, and Brevick offered no evidence to rebut the
PSR’s findings.
                                       III.
      Finally, we consider the issues raised by Ryan. He argues that there is
insufficient evidence to support his conviction for maintaining a drug-involved
premises. He also contends that the district court erred by finding that he
participated in the underlying drug offense in calculating his base offense level,
by denying his motion to suppress, and by finding that it could not consider a co-
defendant’s plea bargain in deciding whether to grant a downward departure
from the Sentencing Guidelines range.
                                       A.
      Ryan argues that the government failed to meet its burden of proving
beyond a reasonable doubt that he intended to maintain his residence for the
purpose of manufacturing, distributing, or using drugs. He maintains that in
the residential context, the manufacture, distribution, or use of drugs must be
at least one of the primary or principal uses to which the house is put. He
asserts that the evidence at trial established only that people used drugs
recreationally at his home, and that the consumption of drugs there was
incidental to the primary purpose of residence.
      The indictment charged Ryan with violating 21 U.S.C. § 856(a)(1) and (2).
To sustain a conviction under § 856(a)(1), “the government must prove that the
defendant (1) intentionally and knowingly (2) opened or maintained a place (3)
for the purpose of using, manufacturing or distributing a controlled substance.”
United States v. Roberts, 913 F.2d 211, 219 (5th Cir. 1990). “[T]he government
need not prove that drug distribution was the primary purpose of [the
defendant’s maintaining the place], merely that drug distribution was a
significant purpose.” United States v. Meshack, 225 F.3d 556, 571 (5th Cir. 2000)

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                                 No. 06-10730

(internal quotation marks and citation omitted). For a violation of § 856(a)(2),
the government must prove that the defendant “(1) managed or controlled [a
place] (2) either as an owner, lessee, agent, employee or mortgagee and (3)
knowingly and intentionally rented, leased or made available for use with or
without compensation, the building for the purpose of unlawfully manufacturing,
storing, distributing or using a controlled substance.” United States v. Cooper,
966 F.2d 936, 942 n.8 (5th Cir. 1992). This court has stated that “§ 856(a)(2) is
designed to apply to the person who may not have actually opened or maintained
the place for the purpose of drug activity, but who has knowingly allowed others
to engage in those activities by making the place ‘available for use ... for the
purpose of unlawfully’ engaging in such activity.” United States v. Chen, 913
F.2d 183, 190 (5th Cir. 1990).
      Priscilla Pena testified that from 2002 to 2004, she was engaged in the sale
and distribution of ice methamphetamine.       She testified that she and Ryan
were personal friends and had attended the same elementary and junior high
schools. When asked whether she stored drugs at Ryan’s house, she said that
occasionally she would leave drugs there if she was going somewhere, but that
she usually would go to his house to “hang out” or to meet Steve Hitchcock, who
was staying with Ryan at the time and was buying 2 to 4 ounces of ice
methamphetamine from her usually every two weeks, if not every week, for a
couple of months. She testified that Ryan knew that she was using his house as
a meeting place for sales, and that he was there when some of the sales took
place. She testified further that, on two occasions, she watched Ryan use
acetone to wash ice methamphetamine at his home. Pena testified that when
she spoke to Ryan on the telephone, some of the conversations were about
arranging to either store or smoke ice methamphetamine and others were social
in nature.



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                                         No. 06-10730

       Pena testified that she was involved in a romantic relationship with
Francisco Flores from 1999-2001,1 and that they remained friends and were
involved in a drug business relationship for about two and one-half years after
their romantic relationship ended.                  Flores testified that he took ice
methamphetamine to Pena at Ryan’s house and that he smoked ice
methamphetamine with Pena and Ryan at Ryan’s house.
       Pena testified that she purchased a pound of ice methamphetamine from
Chris Almaguer and left it in a friend’s car. When she went to retrieve the drugs
from the friend’s car, she learned that the car was at a mall, so Ryan took her to
the mall to get the drugs. She testified that Ryan and his girlfriend were
fighting and they were afraid that the girlfriend might take the drugs, so Ryan
took her to a Wal-Mart to purchase a safe in which to store the drugs at his
house.2 Ryan programmed the electronic code on the safe, and he was the only
person who knew the combination. Ryan and Pena stored the safe with the
pound of ice in the “smoke room,” an upstairs room at Ryan’s house that was
designated as the place where he and his friends smoked ice.3 Pena stated that
she smoked ice in the smoke room with Ryan and others, and that Ryan
occasionally provided ice for other people to smoke. Pena testified that the
pound of ice was stored in the safe at Ryan’s house only for a day or a couple of
days, because he told her she needed to get it out of his house. Law enforcement
officers found the safe in the smoke room when they searched Ryan’s home after
he was arrested.



       1
           Flores testified that Pena was his girlfriend from 2000 to 2002.
       2
          The record contains nothing to indicate the size of the safe. Pena’s brother-in-law
testified that he saw Ryan and Pena with the safe in the check-out line at the store where they
purchased it, so presumably it was not an extremely large or heavy safe.
       3
         Ryan’s mother testified that the room was also the only place in the house where legal
cigarettes were smoked.

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                                  No. 06-10730

      Ryan contends that the evidence is insufficient to establish that he
maintained his house for the purpose of drug use or distribution and that he was
merely helping a friend when he allowed Pena to store the pound of
methamphetamine at his house. He explains that the smoking room at his home
was maintained to prevent anyone who smoked (legal cigarettes or controlled
substances) from “smoking up” the entire house.           He contends that he
maintained his home for the purpose of residing in it and that any drug activity
there was only incidental. It was within the jury’s prerogative to weigh the
evidence and reject Ryan’s explanation.       Although not overwhelming, the
evidence was sufficient to permit a rational juror to conclude that Ryan
knowingly made his home available to others for the purpose of unlawfully
storing, distributing, and using ice methamphetamine.
                                       B.
      The district court found that Ryan was involved in the underlying drug
activity and increased his base offense level to 34, based on 457 grams of
methamphetamine, consisting of the pound (453.6 grams) of ice that Ryan and
Pena stored in Ryan’s home, and the 3.4 grams that Ryan possessed when he
was arrested. Ryan argues that his sentence is unconstitutional because it is
based on facts he did not admit and which were not proved to a jury beyond a
reasonable doubt. He argues that his sentence was improperly enhanced
because he was acquitted on the drug conspiracy count and had no involvement
with drug activity other than as a casual user.
      Ryan’s sentence is not unconstitutional.      The district court properly
treated the guideline range as advisory, and it was free to find the facts used to
calculate that range at sentencing by a preponderance of the evidence. The
district court’s finding that Ryan was involved in the underlying drug activity
is supported by the evidence presented at trial and the findings in the PSR.
Ryan’s acquittal on the conspiracy count does not preclude the district court from


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considering Ryan’s conduct in the drug conspiracy. United States v. Valdez, 453
F.3d 252, 264 (5th Cir. 2006).
                                       C.
      Ryan next raises questions about the legality of his arrest, the search of
his automobile, and the consent to search his house. On January 28, 2004, Pena
went to Ryan’s house to retrieve the pound of ice she had stored there in the
safe. When she left, police officers stopped her car, but she refused to consent
to a search, so the officers let her go. She drove away, then stopped at a park,
where she called Ryan to tell him what had happened. Ryan and his girlfriend
left his house and arrived at Pena’s location. Pena got into Ryan’s vehicle. They
headed north, then made a U-turn and returned to Pena’s vehicle. Pena got out
of Ryan’s vehicle and got into her own. Ryan followed Pena closely as they drove
away. Officers conducting surveillance stopped Ryan after they saw him change
lanes without signaling. He refused to consent to a search of his car, and he was
arrested on the traffic violation. When the officers searched his car, they found
a small amount of ice.
      When Ryan was pulled over, Pena sped away toward the airport. She
drove through the airport at 80 miles per hour, and airport police saw her
dumping drugs out of her car onto the road. She was eventually apprehended
and arrested.
      After Pena was apprehended, Ryan signed a consent to search his
residence. He told the agents they would find narcotics in the house. During the
search, officers found the safe and drug paraphernalia in the smoking room. In
a freezer in Ryan’s garage, the officers found a jar that contained a “wash”
solution consisting of acetone and methamphetamine residue. The district court
denied Ryan’s motion to suppress evidence of the contents of the jar. Although
the district court found that the officers’ subjective reason for arresting Ryan
was his refusal to consent to a search of his vehicle, it also concluded that they


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                                  No. 06-10730

had an objectively reasonable basis for arresting him based on the traffic
violation. The court further found that the officers had probable cause to believe
that Ryan was engaged in drug trafficking activities at the time he was stopped
and that there might be some evidence of that activity in his vehicle.
      In his opening brief, Ryan argues that the government failed to establish
any basis for the initial stop of his vehicle, and argues that the search of the car
and the consent to search his home were all products of the illegal initial stop.
In his reply brief, he concedes that there was probable cause for the police to stop
his vehicle for changing lanes without signaling, but argues, for the first time,
that his arrest was illegal because the sole reason that he was arrested was his
refusal to consent to the search of his car.
      Generally, we do not consider arguments raised for the first time in a reply
brief. United States v. Avants, 367 F.3d 433, 449 (5th Cir. 2004). In any event,
the district court correctly concluded that there was no Fourth Amendment
violation because the officers had probable cause to arrest Ryan based on the
traffic violation. Therefore, his consent to search his home was not the fruit of
an illegal arrest, and the district court did not err by admitting evidence of the
contents of the jar found in Ryan’s freezer.
                                        D.
      Ryan argues that the district court erred by concluding that it could not
consider the plea agreement and lenient sentence of co-defendant John Grote in
deciding whether to depart downward from the Sentencing Guidelines range.
Ryan asserts that Grote received a lenient sentence because he is wealthy. Ryan
maintains that because he is less culpable than Grote, a downward departure
for him is the only way to eliminate the sentencing disparity based on wealth.
      We have no jurisdiction to review the denial of a downward departure
unless there is some indication in the record that the district court erroneously
believed that it lacked authority to depart. United States v. Hernandez, 457 F.3d

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                                  No. 06-10730

416, 424 & n.5 (5th Cir. 2006). The district court expressed its concern with the
leniency of Grote’s sentence, but concluded that it would be inappropriate to give
the “freaky” sentence of one of Ryan’s co-conspirators significant weight.
Because the district court was aware of its authority to depart, but exercised its
discretion not to do so, its decision not to depart is unreviewable.
                                       IV.
      For the foregoing reasons, the appellants’ convictions and sentences are
                                                                       AFFIRMED.




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