     Case: 11-31205       Document: 00512158075         Page: 1     Date Filed: 02/27/2013




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

                                                                            FILED
                                                                         February 27, 2013

                                       No. 11-31205                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee
v.

KENRIC RODNEY,

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:10-CR-102-1


Before STEWART, Chief Judge, and DAVIS and CLEMENT, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant challenges his sentence following his conviction for
two counts of distributing 50 or more grams of crack cocaine and one count of
conspiring to possess 5 or more kilograms of powder cocaine, 280 or more grams
of crack cocaine, and a quantity of heroin. He was sentenced based upon an
aggregate offense drug quantity of 5 or more kilograms of powder cocaine and
380 or more grams of crack cocaine, enhanced in part by the sentencing court’s
determination that the defendant maintained a premises for distributing drugs.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-31205

On appeal, Defendant-Appellant contests the sufficiency of the evidence
supporting the drug quantities, the sentencing court’s aggregation of his drug
offense quantities, and the application of the “maintaining a premises”
sentencing enhancement. Because the record supports the jury’s quantity
findings and the sentencing enhancement, and because the aggregation of the
separate drug offense quantities was not clearly erroneous, we AFFIRM.
                                       I.
      At some point prior to October 2006, a New Orleans drug gang gained a
foothold in the Hoffman Triangle, a neighborhood in central New Orleans.
Known as “3NG,” the drug gang adopted its name from the area in which it
conducted its operations, the intersection of Third Street and South Galvez
Street and the surrounding area. In October 2008, the Drug Enforcement
Administration (“DEA”) received information suggesting that a potential leader
of the 3NG drug trafficking organization had been identified: Kenric Rodney
(“Rodney”). Based on its initial investigation of Rodney, the DEA concluded that
he was a key member of the organization.
      On April 8, 2009, the DEA arranged a “chance” encounter between Rodney
and Donyell Hatfield (“Hatfield”), an informant who had spent time with Rodney
in federal prison. During their conversation, Hatfield complained that his drug
supplier was overcharging him, and Rodney offered Hatfield his cell phone
number. On April 20, 2009, Hatfield called Rodney to arrange a drug purchase,
and Rodney told Hatfield to meet him at a nearby park. Wearing DEA
monitoring devices and carrying purchase money, Hatfield arrived at the park
as instructed. Hatfield then entered Rodney’s car, and Rodney drove around the
block before parking. From there, a DEA agent observed Rodney walk up a
driveway, enter a shed, and then emerge from the shed a few minutes later and
return to the parked car. In the car, Rodney gave Hatfield approximately 2.5
ounces of crack cocaine, and Hatfield gave Rodney $1,600. The two parted ways,

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                                      No. 11-31205

with Hatfield immediately meeting up with a DEA agent to turn over the drugs.
A laboratory subsequently found the seized drugs to contain 60.8 grams of
cocaine base.
       Three days later, on April 23, 2009, Hatfield arranged a nearly identical
transaction with Rodney. This time Hatfield parked his car near the driveway
that Rodney had used during their previous deal. At the same time, Rodney was
seen “milling around” near the shed at the end of the driveway before walking
to and entering Hatfield’s vehicle. Rodney then gave Hatfield another bag of
approximately 2.5 ounces of crack cocaine, and Hatfield gave Rodney $1,800.
After discussing the possibility of a future $8,000–$9,000 transaction involving
a quarter kilogram of cocaine, the two parted ways again. The crack cocaine was
immediately turned over to a DEA agent, and was subsequently determined by
a laboratory to contain 62.7 grams of cocaine base.
       On April 15, 2010, Rodney was indicted for his role in the drug activities
of 3NG. The four-count indictment first alleged that Rodney conspired to
distribute five kilograms or more of powder cocaine, fifty grams or more of
cocaine base (“crack”), and a quantity of heroin and marijuana. Counts two and
three of the indictment charged Rodney with the distribution of 50 grams or
more of crack cocaine for the April 20, 2009 and April 23, 2009 Hatfield drug
purchases. Count four alleged that Rodney distributed a quantity of powder
cocaine on September 15, 2009.1
       In September 2011, Rodney was tried by a jury on the four-count
indictment. On a special verdict form permitting the jury to determine the
quantity of cocaine involved, the jury found Rodney guilty of: conspiring to



       1
         A second suspected 3NG leader, Derrick Fleming, was also indicted on the same
counts as Rodney. However, a jury acquitted Fleming of any role in the charged drug
distributions and conspiracy, and his involvement in the matter is irrelevant for purposes of
this appeal.

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                                       No. 11-31205

distribute 5 or more kilograms of powder cocaine, 50 grams or more of crack, and
a quantity of heroin, but not marijuana (Count 1); and distributing 50 or more
grams of crack on April 20, 2009 and April 23, 2009 (Counts 2–3). The jury found
Rodney not guilty of the fourth count, distribution of a quantity of cocaine on
September 15, 2009. Rodney immediately filed a motion for a new trial, or in the
alternative, a motion for a judgment of acquittal, which the district court denied.
       At sentencing, the probation officer relied upon the jury’s determinations
of drug quantities and calculated Rodney’s base offense level at 32. The
probation officer also recommended a two-level enhancement under United
States Sentencing Guidelines § 2D1.1(b)(12) for “maintain[ing] a premises for
the purpose of . . . distributing a controlled substance.” The “premises” referred
to by the Presentence Report (“PSR”) was the shed that Rodney accessed just
prior to the April 20, 2009 drug deal and that he again appeared to access just
prior to the April 23, 2009 drug deal. Rodney objected to the PSR, arguing that
he did not maintain the shed or any such premises for the distribution of drugs
as alleged. The sentencing judge overruled the objection, concluding that because
the “testimony established that the Defendant had unimpeded access to the shed
and was observed retrieving drugs from it on multiple occasions,” the two-point
sentence enhancement was appropriate. The district court imposed sentences of
365 months for each of Rodney’s three convictions, to be served concurrently.
Rodney now appeals.
                                              II.
       Rodney moved for a judgment of acquittal at the close of the Government’s
case-in-chief and again after the close of evidence. “This court reviews the
district court’s denial of a motion for acquittal de novo.”2 United States v.


       2
         While Rodney moved for a judgment of acquittal based upon multiple objections to
the evidence and trial procedure, he never based his objections upon the insufficiency of
evidence relating to drug quantities. Therefore, the appropriate standard of review is arguably

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                                     No. 11-31205

Vasquez, 677 F.3d 685, 692 (5th Cir. 2012). A motion for acquittal should be
granted if the Government fails to present evidence sufficient for a reasonable
jury to have found that each essential element of the offense was established
beyond a reasonable doubt. United States v. Ortega Reyna, 148 F.3d 540, 543
(5th Cir. 1998). This court considers the evidence in the light most favorable to
the verdict. Vasquez, 677 F.3d at 692.
       As to the district court’s interpretation and application of the sentencing
guidelines, we review its legal conclusions de novo. United States v. Conner, 537
F.3d 480, 489 (5th Cir. 2008). We review corresponding factual findings for clear
error. Id. However, where the defendant fails to raise an issue in the trial court,
we review the lower court’s application of the sentencing guidelines for plain
error. FED. R. CRIM. P. 52(b); United States v. Arviso-Mata, 442 F.3d 382, 384
(5th Cir. 2006).
                                           III.
                                            A.
       Rodney first argues that the evidence presented at trial was insufficient
to support the jury’s finding that the conspiracy to distribute and possess
controlled substances of which he was convicted involved 5 or more kilograms
of powder cocaine and 280 or more grams of crack cocaine. Because the only
crack cocaine actually seized by DEA agents during its investigation was the
122.5 grams attributable to Rodney’s dealings with Hatfield, Rodney contends
that 122.5 grams is the maximum amount of crack for which he may be
convicted and sentenced under the conspiracy count. Rodney likewise argues
that the only powder cocaine actually seized by DEA agents amounted to 28.1




clear error. See United States v. Delgado, 672 F.3d 320, 330–31 (5th Cir. 2012) (en banc).
Nonetheless, because we affirm the jury’s factual findings even under the less stringent de
novo review, we decline to address this argument.

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                                       No. 11-31205

grams, and therefore his conspiracy conviction cannot be premised on the
greater amount of 5 kilograms.
       Because the quantity of drugs involved increases the maximum possible
penalty for the conspiracy in this case, the drug quantity must be established by
the Government beyond a reasonable doubt.3 See United States v. Turner, 319
F.3d 716, 721–22 (5th Cir. 2003); see also Apprendi v. New Jersey, 530 U.S. 466,
490 (2000). Although the Government must prove the quantity of drugs involved
in the conspiracy, there is no requirement that the requisite quantity of drugs
actually be seized by the Government. See Turner, 319 F.3d at 722–23. A
conspiracy conviction is thus supported by mere proof of an agreement involving
drugs, and does not require actual possession and seizure of the drugs. See
United States v. Valdez, 453 F.3d 252, 257 (5th Cir. 2006). Furthermore, the
Government does not have to prove that the amount of drugs is attributable to
Rodney individually. “[T]he government need only allege and prove to the jury
the [quantity of drugs involved] for the conspiracy as a whole.” Turner, 319 F.3d
at 722 (emphasis in original) (quoting Derman v. United States, 298 F.3d 34, 43
(1st Cir. 2002)).
       Rodney alternatively argues that even considering the evidence of
additional drug quantities not seized by the Government, there is insufficient
evidence to support the jury’s finding that the conspiracy involved 5 or more
kilograms of powder cocaine and 280 or more grams of crack cocaine. According
to Rodney, there is at most evidence of approximately 2 kilograms of powder
cocaine and 122.5 grams of crack cocaine.


       3
        “To prove conspiracy to possess and distribute a controlled substance, the government
must show beyond a reasonable doubt (1) the existence of an agreement between two or more
persons to violate narcotics laws; (2) the defendant’s knowledge of the agreement; and (3) his
voluntary participation in the conspiracy.” United States v. Valdez, 453 F.3d 252, 256–57 (5th
Cir. 2006). Rodney has not challenged the jury’s finding that the Government has satisfied the
general elements of a conspiracy charge.

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      However, this assertion is contradicted by the trial record and testimony.
Affiliates of Rodney testified that 3NG was responsible for the distribution of a
substantial amount of powder and crack cocaine and that Rodney was 3NG’s de
facto leader. Testimony at trial established that Rodney personally supplied one
street dealer with three kilograms of powder cocaine and directed the delivery
of a fourth kilogram to the same dealer. The jury also heard testimony that in
early 2008, Rodney was seen counting out $80,000 in cash earned from dealing
drugs, roughly the equivalent value of four kilograms of cocaine. Another
associate of Rodney testified that Rodney directed the transport of kilogram
quantities of cocaine from Houston to New Orleans. Still more testimony
identified Rodney as the one who supervised 3NG’s systematic manufacture and
distribution of crack cocaine via a network of multiple street level dealers.
Despite the significant quantities of powder cocaine connected to Rodney, one of
Rodney’s associates testified that it was crack cocaine that 3NG was primarily
engaged in distributing. According to trial testimony, even 3NG’s “small street
level” dealers distributed crack daily in three- and six-gram quantities.
Moreover, the sizeable quantity of 122.5 grams which Rodney indisputably sold
to Hatfield in just two transactions suggests that the volume represented by
Rodney’s overall drug network easily surpassed the relatively low 280-gram
threshold necessary to support the jury’s verdict.
      Although Rodney argues that this evidence is tenuous and unreliable, he
has offered no evidence or caselaw to support his assertion. Rather, we have
previously said that in a conspiracy, the “agreement, a defendant’s guilty
knowledge and a defendant’s participation in the conspiracy all may be inferred
from the development and collocation of circumstances.” Valdez, 453 F.3d at 257
(quoting United States v. Lentz, 823 F.2d 867, 868 (5th Cir. 1987)). Competent
evidence includes the sworn testimony of witnesses and even coconspirators,
because “[t]estimony is incredible as a matter of law only if it relates to facts that

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                                       No. 11-31205

the witness could not possibly have observed or to events which could not have
occurred under the laws of nature.” Id. (quoting United States v. Bermea, 30 F.3d
1539, 1552 (5th Cir.1994)). Each Government witness was subject to cross-
examination by Rodney at trial, and there is no assertion that their collective
testimony rose to this requisite level of incredibility. Because it is the jury’s
prerogative to determine whether or not to credit competent testimony, we
decline to disturb its determination that the conspiracy in which Rodney
participated involved at least 5 kilograms of powder cocaine and 280 grams of
crack cocaine.4
                                              B.
       Rodney next argues that his case must be remanded for resentencing
because his original sentence was premised upon the erroneous aggregation of
drug quantities in his PSR. Specifically, Rodney’s sentence was based upon the
determination that the total quantity of crack cocaine involved in his offenses
was 380 grams. This amount was obtained by adding the 280 grams for which
the jury found Rodney guilty of conspiring to distribute (Count 1) to the 100
grams the jury found Rodney guilty of distributing to Hatfield (Counts 2–3).
Rodney contends that this aggregation is potentially erroneous, as the same 100
grams of crack cocaine for which Rodney was found guilty of distributing could
have been used to reach the 280-gram quantity for which he was found guilty in
his conspiracy charge.



       4
         Rodney also argues that his case should be remanded for resentencing, because his
original sentence was premised on the unsubstantiated drug quantity finding of the jury.
However, because we conclude that the jury’s findings regarding drug quantities are supported
by the evidence, the sentencing judge’s reliance upon those same findings was not improper.
See United States v. Cantu-Ramirez, 669 F.3d 619, 629 (5th Cir. 2012) (reasoning that evidence
sufficient to satisfy Government’s burden of proving guilt is sufficient to satisfy Government’s
lower burden of proof at sentencing); see also Valdez, 453 F.3d at 268 (holding that a
sentencing judge may estimate drug quantity “from any information that has sufficient indicia
of reliability to support its probable accuracy”) (internal quotation marks omitted).

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       Because Rodney did not raise this issue below, we review the lower court’s
application of the sentencing guidelines for plain error. FED . R. CRIM. P. 52(b);
Arviso-Mata, 442 F.3d at 384. Under plain error review, we are concerned only
with an error that is obvious and affects substantial rights, “which in the
ordinary case means [the defendant] must demonstrate that it ‘affected the
outcome of the district court proceedings.’” Puckett v. United States, 556 U.S.
129, 135 (2009) (quoting United States v. Olano, 507 U.S. 725, 734 (1993)).
Moreover, “the [reviewing] court of appeals has the discretion to remedy the
error—discretion which ought to be exercised only if the error ‘seriously affects
the fairness, integrity or public reputation of judicial proceedings.’” Id. (quoting
Olano, 507 U.S. at 736).
       In the instant case, it is not clear that there was an error, that any error
was obvious, or that any such error affected substantial rights. Rodney was
separately indicted for and convicted of the offenses of conspiracy to distribute
crack cocaine and distribution of crack cocaine. Rodney has cited no caselaw
recognizing the impropriety of aggregating a conspiracy charge quantity with a
distribution charge quantity in this context.5 Even if we were to determine that
such a drug quantity calculation methodology was flawed, Rodney’s substantial
rights were unaffected. This is because the sentencing range for 280 grams of
crack cocaine plus 5 kilograms of powder cocaine is the same as the sentencing
range for 380 grams of crack cocaine plus 5 kilograms of powder cocaine.6


       5
         Although it arguably refers to separate factual predicates, U.S.S.G. § 2D1.1 cmt. n.12
states in relevant part, “If the offense involved both a substantive drug offense and an attempt
or conspiracy (e.g., sale of five grams of heroin and an attempt to sell an additional ten grams
of heroin) the total quantity involved shall be aggregated to determine the scale of the offense.”
       6
         U.S.S.G.§ 2D1.1 cmt. n.10(B) provides that where a defendant’s offense encompasses
multiple drugs, the sentencing judge is to “convert each of the drugs to its marihuana
equivalent, add the quantities, and look up the total in the Drug Quantity Table to obtain the
combined offense level.” Turning to the Drug Quantity Table, 280 and 380 grams of crack
cocaine equate to 999 kilograms and 1356 kilograms of marijuana, respectively. See U.S.S.G.

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                                       No. 11-31205

       Moreover, the sentencing court is free to find that a greater quantity of
drugs was involved in the offense than found by the jury, if that finding is
supported by a preponderance of the evidence and does not increase the sentence
beyond the statutory maximum provided for by the jury’s finding. See Cantu-
Ramirez, 669 F.3d at 629; Apprendi, 530 U.S. at 490.7 In other words, where
reliable evidence exists, the sentencing court may reasonably extrapolate the
involvement of a drug quantity in excess of the jury’s finding.8 By adopting the
PSR’s findings, the district court in effect made such a finding. The testimony
regarding Rodney’s level of involvement in the 3NG drug network and the
network’s scale of operation supports the greater 380-gram drug quantity
calculation. Thus, the record makes it clear that the substantial rights of Rodney
and the integrity of the judicial process have not been impaired. See, e.g., United
States v. Chavez-Flores, 404 F. App’x 312, 316 (10th Cir. 2010) (finding that
erroneous double-counting of drug quantity for purposes of sentencing did not
constitute plain error where other evidence supported a much higher drug
quantity calculation).




§ 2D1.1 cmt. n.10(D). When aggregated with the marijuana equivalent of the 5 kilograms of
cocaine powder (1000 kilograms), the total drug quantity yielded by the addition of the two
potential crack cocaine totals is 1,999 kilograms and 2,356 kilograms of marijuana equivalent.
See id. Both of these totals fall within the same 1,000–3,000 kilogram marijuana equivalent
sentencing range, resulting in the same Level 32 base offense level for Rodney regardless of
which crack cocaine quantity is relied upon. See U.S.S.G. § 2D1.1(c)(4).
       7
        “Other than the fact of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” Apprendi, 530 U.S. at 490.
       8
         See U.S.S.G. § 2D1.1 cmt. n.12 (“Where there is no drug seizure or the amount seized
does not reflect the scale of the offense, the court shall approximate the quantity of the
controlled substance.”); United States v. Betancourt, 422 F.3d 240, 246–47 (5th Cir. 2005)
(finding that “district judge can make an estimate” of “the amount of drugs attributable to a
defendant for purposes of sentencing”).

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                                  No. 11-31205

                                       C.
      Rodney next argues that the sentencing judge erred by finding that he
maintained a premises for distributing drugs, which resulted in a two-point
enhancement of Rodney’s sentence. Because Rodney raised this objection before
the district court, we review the lower court’s application of the sentencing
guidelines de novo and its factual findings for clear error. See Conner, 537 F.3d
at 489.
      The “premises” relied upon by the trial court in applying the enhancement
was the run-down shed which Rodney was seen accessing during his first crack
transaction with Hatfield. Although Rodney was not seen actually accessing the
shed during his second crack transaction with Hatfield, no other reasonable
explanation was offered for his being in the shed’s immediate vicinity just before
transferring the crack to Hatfield. Overruling Rodney’s objection at sentencing,
the trial court found that the “testimony established that [Rodney] had
unimpeded access to the shed and was observed retrieving drugs from it on
multiple occasions. Also, [Rodney] stored, packaged, and retrieved drugs from
the shed, and controlled the activities at the shed.”
      U.S.S.G. § 2D1.1(b)(12) provides, “If the defendant maintained a premises
for the purpose of manufacturing or distributing a controlled substance, increase
[the sentence] by 2 levels.” According to the guidelines commentary, “Among the
factors the court should consider in determining whether the defendant
‘maintained’ the premises are (A) whether the defendant held a possessory
interest in (e.g., owned or rented) the premises and (B) the extent to which the
defendant controlled access to, or activities at, the premises.” U.S.S.G. § 2D1.1
cmt. n.28. The commentary makes clear that a “premises” need not be an actual
house or residence, but may be a “building, room, or enclosure.” Id.
      Immediately before the two Rodney crack transactions observed by law
enforcement, Rodney accessed the shed on one occasion and appeared to access

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                                  No. 11-31205

the shed on the other occasion. Unlike a residence or house, the shed was
apparently a run-down structure for which Rodney had no legitimate use, and
Rodney has offered no innocent explanation for his close connection to the shed
just prior to large crack cocaine deals. While Rodney might not have owned or
rented the shed, he had unimpeded access to the shed and used it as he wished.
      This evidence supports the inference that Rodney at least temporarily
used the shed to store and package drugs for distribution. The district court did
not clearly err in finding that Rodney maintained the premises to distribute
drugs. See United States v. Ayala, 47 F.3d 688, 690 (5th Cir. 1995). (“Generally,
a PSR bears sufficient indicia of reliability to permit the sentencing court to rely
on it at sentencing. The defendant bears the burden of demonstrating that the
PSR is inaccurate; in the absence of rebuttal evidence, the sentencing court may
properly rely on the PSR and adopt it.”). See also United States v.
Sandoval-Chavez, 477 F. App’x 154 (5th Cir. 2012).
                                        IV.
      For the reasons stated above, the judgment and sentence of the district
court is AFFIRMED.




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