                  UNITED STATES COURT OF APPEALS
                       For the Fifth Circuit

                 ________________________________

                            No. 00-30900

                 ________________________________


UNITED STATES OF AMERICA,
                                              Plaintiff-Appellee,

VERSUS


THOMAS ANTHONY DEVILLE,
                                            Defendant-Appellant.

                 ________________________________

                            No. 00-30968

                 ________________________________


UNITED STATES OF AMERICA,
                                             Plaintiff-Appellant,

VERSUS


THOMAS ANTHONY DEVILLE,
                                             Defendant-Appellee.

                 ________________________________

                            No. 00-31124

                 ________________________________


UNITED STATES OF AMERICA,
                                              Plaintiff-Appellee,

VERSUS


LANIER CHERRY,
                                            Defendant-Appellant.
         ________________________________________________

          Appeals from the United States District Court
              for the Western District of Louisiana

         ________________________________________________
                          January 7, 2002

Before JONES and DeMOSS, Circuit Judges, and FELDMAN, District
Judge.*

FELDMAN, District Judge:


     This appeal, which presents several issues, arises out of a

federal and state investigation into a Louisiana-based marijuana

distribution organization led by appellant, Lanier Cherry.    The

marijuana distribution ring was controlled from Cherry’s home in

Duson, Louisiana.   Appellant, Thomas Anthony Deville, a friend of

Cherry’s, who was also involved in the drug ring, served as the

Chief of Police in Duson, Louisiana from 1995 to 1999.    In 1998,

after losing his bid for re-election as police chief, Deville

agreed to become involved with Cherry to make some extra money.

On November 16, 1998, while the lame duck chief of police,

Deville went to Texas and picked up a load of marijuana from

Cherry’s supplier in Houston, Avel Garcia.

     The details of Deville’s trip to Houston were given to the

Texas Department of Public Safety by an informant who had been

present when Deville delivered the marijuana to Cherry.     Agents

from the Department of Public Safety alerted the Louisiana State

Police narcotics investigators, who were already investigating


     *
          District Judge for the Eastern District of Louisiana,
sitting by designation.

                                 2
Cherry’s activities.

     On November 21, 1998, undercover narcotics agents conducted

a controlled sale of 200 pounds of marijuana to Cherry.       During

the sale, they engaged in extensive conversation with Cherry

regarding marijuana trafficking.       Cherry commented that he was

concerned about state and federal law enforcement, but he was not

worried about the local Duson police.       He told the undercover

agents that Deville was transporting marijuana for him to pay off

his debts.   He also told them that Deville had recently delivered

a load of marijuana for him from Texas.       Shortly after the

undercover agents left Cherry’s house, federal and state agents

executed a search warrant on the house.       The search turned up

telephone numbers of various co-conspirators, including Deville’s

home number and his room and telephone number at the Super 8

Motel in Houston(where he stayed when he picked up the marijuana

from Garcia for Cherry).

     Armed with this information, FBI special agent Stephen

Richardson and Louisiana State Trooper Dirk Bergeron decided to

conduct a non-custodial interview of Deville.       On March 9, 1999

they went to Deville’s house and he voluntarily answered their

questions and was specific about his trip to Houston.       Agent

Richardson prepared a document recounting Deville’s statements

and Deville reviewed and signed it.       Two days later the agents

returned to Deville’s house to show him additional photo line-ups

they had received from Texas authorities.        The events that

occurred at this second encounter animate some of our inquiry.

                                   3
The agents testified at trial that Deville told them that he had

his gun with him for protection when he went to Houston for the

drugs.    However, the agents did not have Deville sign another

statement.    Instead, they prepared a FD-302 memorandum

memorializing the conversation as they remembered it had

occurred.

     Cherry and Deville were later indicted with thirteen other

defendants on fifty-counts of conspiracy to distribute marijuana

and other drug related violations. On October 13, 1999 Cherry

pleaded guilty to Count 1 of the Superceding Indictment which

charged him with conspiracy to distribute and possession with the

intent to distribute more than 1,000 kilograms of marijuana.      On

August 16, 2000, after a hearing to address Cherry’s objections

to the Pre-Sentence Report, the district judge sentenced Cherry

to 293 months imprisonment and five years supervised release.

Cherry now appeals the district court’s sentence.    He raises

three issues: 1) the district court erred in ruling that his

prior convictions were not related offenses for purposes of

sentencing; 2) he was denied equal protection under the law

because he did not receive a similar criminal history calculation

as his wife, Tina Cherry; and 3) the district court erred in

imposing a sentence that exceeded the statutory maximum.

     On   December 14, 1999 Deville was named as the only

defendant in a Second Superceding Indictment charging him in four

counts.    Count I charged him with conspiracy to distribute and

posses with the intent to distribute marijuana in violation of 21

                                  4
U.S.C. § 846.     Count II charged him with possession with the

intent to distribute marijuana in violation of 21 U.S.C. §

841(a)(1) and 841(b)(1)(D).     In Count III, he was charged with

interstate travel in aid of illegal activity in violation of 18

U.S.C. §1952(a)(3) and in Count IV he was charged with carrying

and possessing a firearm during, in relation to, and in

furtherance of a drug trafficking crime in violation of 18 U.S.C.

§924(c)(1)(A)(i).     After a seven day trial, the jury returned

guilty verdicts against Deville on all four counts.         Deville then

moved for judgment of acquittal as to the firearm count, which

was granted by the district court.        Deville was sentenced to

thirty-three months imprisonment and three years supervised

release, on counts I, II and III, all to run concurrently.          In

calculating Deville’s criminal history, the district court added

a two point enhancement under Section 3B1.3 of the Sentencing

Guidelines because it found that Deville had used his position as

police chief in furtherance of the drug conspiracy.         The

government appeals the district court’s grant of Deville’s motion

for judgment of acquittal on the gun count, and Deville appeals

the court’s two point sentencing enhancement.

     We reverse in part and affirm in part.

           I.   Deville’s Motion for Judgment of Acquittal

                                     A.

      The government asserts that the district court erred in

granting   this   motion   because   Deville   confessed   to   agents   to

carrying a gun and the confession was properly and adequately

                                     5
corroborated at trial.     The government complains that the district

court applied the wrong standard when it stated that the jury

verdict was against the weight of the evidence in ruling on the

motion for acquittal.     We agree and reverse the district court on

this issue.

     We   review   the   district   court’s   grant   of   a   judgment   of

acquittal de novo, applying the same standard as applicable to the

district court.    United States v. Sanchez, 961 F.2d 1169, 1179 (5th

Cir. 1992).    The guiding standard on a motion for judgment of

acquittal is “whether viewing the evidence most favorably to the

Government, a reasonable-minded jury could find the admissible

evidence sufficient to support the jury’s verdict of guilty.” U.S.

v. Maner, 611 F.2d 107, 108 (5th Cir. 1980)(citing Glasser v. United

States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United

States v. Brown, 587 F.2d 187, 190 (5th Cir. 1979); United States

v. Kohlmann, 491 F.2d 1250, 1253 (5th Cir. 1974)).         We stress that

“all reasonable inferences and credibility choices must be made in

favor of the jury verdict.” Id. at 109.

     Count VI of the Second Superceding Indictment charged Deville

with knowingly possessing and carrying a firearm during and in

furtherance of a drug trafficking crime, in violation of 18 U.S.C.

§ 924(c)(1)(A)(i).       To establish a violation of 18 U.S.C. §

924(c)(1)(A)(i), the government must prove beyond a reasonable

doubt that: 1) the accused used or carried a firearm, and 2) the

use or carrying was during and in relation to a crime of violence

or drug trafficking crime.     Smith v. United States, 508 U.S. 223,

                                     6
228, 113 S.Ct. 2050, 2053, 124 L.Ed.2d 13 (1993).                               To establish

that Deville carried a firearm, the government need not show that

he   physically         carried      it    on    his    person.         United         States    v.

Muscarello, 524 U.S. 125, 138-39, 118 S.Ct. 1911, 1919-20, 141

L.Ed.2d 111, 6 (1998).                For example, one is considered to have

carried a firearm if he knowingly possessed and conveyed a firearm

in a vehicle he was driving.                    Id.    Furthermore, the firearm need

not be immediately accessible in order to satisfy the “carried”

requirement of § 924(c)(1).                  United States v. Pineda-Ortuno, 952

F.2d 98, 104 (5th Cir. 1992).                 Deville was charged with possessing

a firearm during and in relation to a drug offense; the government

focused its proof on the drug crime, which anchored the gun count.

The jury believed the government’s witnesses and said Deville was

guilty.

      Nevertheless, in granting the acquittal, the district court

said that “the jury verdict was against the weight of the evidence

and that the record does not contain sufficient proof to support a

finding of guilty as to [the firearm count].”                            The trial court’s

judgment of acquittal does not contain any other reasoning and it

does not address specific details of the evidence, but our review

of the transcript of the hearing on the motion for judgment of

acquittal tells us that the trial judge was anxious about the

reliability        of    the    memory     of    the    law    enforcement         agents       who

testified as to Deville’s gun confession.1                              The trial court’s


      1
          In referring to the content of the 302 memorandum, the trial court stated:


                                                 7
credibility choice is the error. Whether or not the court accepted

the trial testimony, we hold that such choices are for the jury,

not the judge.           “It is not for the court,” we have held, “upon

motion for judgment of acquittal, to weigh evidence or assess the

credibility of witnesses.”                United States v. Rasco, 123 F.3d 222,

228 (5th Cir. 1997).          That is exactly what happened here.                    Although

there was no evidence that anyone actually saw Deville carrying a

gun, the testimony of the agents as to Deville’s confession is

evidence which on this record could be weighed only by the jury,

not by the trial judge.              It was error to do so.

                                              B.

       Deville maintains that because his statement to the agents

that    he    was     carrying      a    gun       was    not    corroborated       by    other

independent evidence, he cannot be convicted on the gun count

solely by the testimony of the agents.                      He correctly observes that

one    cannot      be   convicted        on    the       basis   of   an    uncorroborated



                  It bothered me, too, that there was no tape recording of any
                  of these statements. That bothered me. And it still bothers
                  me because, although I think Agent Richardson and
                  whomever else was with Agent Richardson heard what they
                  heard, sometimes what people hear and what the other person
                  says can be different. In the first instance, we have him
                  writing what he said right down in front of Mr. Deville. In
                  the second instance we didn’t have that. But that gives me
                  some pause when we don’t have a tape recording of what
                  was said. If we had one, there would be no question about
                  what was said and what was not said. So that gives me some
                  pause.

Hearing on Deville’s Motion for Judgment of Acquittal at 5-6, United States v. Deville , No. 98-
60049 (W.D. La. March 16, 2000).


                                                   8
confession.     The government counters that plenty of extrinsic

evidence corroborates the drug trafficking offense, and, therefore,

Deville’s statement to the agents that he carried a gun during the

drug trafficking offense is supported and confirmed by the drug

crime evidence.    We agree.

      The Supreme Court ruled years ago that "an accused may not be

convicted on his own uncorroborated confession."              Smith v. United

States, 348 U.S. 147, 152, 75 S.Ct. 194, 197, 99 L.Ed. 192

(1954).     That has been immutable doctrine ever since.                      The

government must introduce independent evidence which would tend to

establish the trustworthiness of the confession.                  Id., at 156.

But   the   doctrine   is   not   as       unyielding   as   it    seems.    "The

corroborative evidence alone need not prove the defendant's guilt

beyond a reasonable doubt, nor even by a preponderance, as long as

there is substantial independent evidence that the offense has been

committed, and the evidence as a whole proves beyond a reasonable

doubt that the defendant is guilty.... [E]xtrinsic proof [is]

sufficient which merely fortifies the truth of the confession,

without independently       establishing       the   crime   charged."      United

States v. Garth, 773 F.2d 1469, 1479 (5th Cir.1985), cert. denied,

476 U.S. 1140, 106 S.Ct. 2246, 90 L.Ed.2d 693(1986)(internal

quotations omitted). The corroborating independent facts need only

support the "essential facts admitted sufficiently to justify a

jury inference of their truth." Opper v. United States, 348 U.S.

84, 93, 75 S.Ct. 158, 164 (1954). See also United States v.

Frazier, 434 F.2d 994, 995 (5th Cir. 1970).                       “The evidence

                                       9
corroborating a confession must tend to connect the accused with

the crime.   Corroboration   is   satisfied   if   the    accused   by   his

confession demonstrates knowledge of the time, place or method of

the offense.” United States v. Abigando, 439 F.2d 827,832 (5th Cir.

1971).   “If there is extrinsic evidence tending to corroborate the

confession, the confession as a whole is admissible; and some

elements of the offense may be proven entirely on the basis of a

corroborated confession.”    United States v. Gravitt, 484 F.2d 375,

381 (5th Cir. 1973).   We need not look very far for fortification

and corroboration in this record.

     Here, the underlying drug conviction corroborates Deville’s

statements during the March 11, 1999 interview.          On March 11, 1999

the agents returned to Deville’s house to show him some photo line-

ups they forgot to bring when they first interviewed him two days

earlier.   At trial, Sergeant Bergeron testified that during the

March 11, 1999 interview Deville identified a picture of Avel

Garcia’s brother, whom he met when he went to Houston for Cherry.

On the “Remarks” section of the identification form, Deville wrote,

“Look like fatboy brother in Texas.      Help load the box and red

duffle bag while in Houston, Texas.       He laughed at my D.A.R.E.

shirt.” Bergeron also testified that during the interview, Deville

told them that he carried a gun for personal protection when he

went to Houston to pick up the load of marijuana for Cherry.             FBI

agent Stephen Richardson, who authored the 302 memorandum, also

testified that Deville said that he carried his gun with him for

protection when he went to Houston to pick up marijuana for Lanier

                                   10
Cherry.   The 302 memorandum states:

           While employed as chief of police in Duson,
           Louisiana, Deville’s duty weapon was a Biretta
           .9 millimeter semi-automatic handgun. Deville
           still owns the Biretta .9 millimeter, and
           utilizes it for personal use. Deville carried
           the Biretta .9 millimeter with him when he
           made a trip to Houston, Texas for Lanier
           Cherry.   Deville was not concerned with his
           safety because he carried a Biretta .9
           millimeter in his overnight bag and kept it
           with him at all times. Deville carried the
           Biretta .9 millimeter with him as a means of
           personal protection.   While Deville and Fat
           Boy were in the vehicle en route to Fat Boy’s
           house, Deville had the Biretta .9 millimeter
           beside him at all times.     Deville normally
           carries the Biretta .9 millimeter under the
           driver’s seat of his pickup truck.

The details of the drug trafficking crime in the 302 memorandum and

the March 11, 1999 interview, most of which were independently

corroborated with extrinsic evidence at trial, corroborate the

firearm   offense.     See   Gravitt,   484   F.2d   375    (5th   Cir.

1973)(interstate transportation element of firearms charge could be

proven by confession alone since most other aspects of confession

were independently corroborated).       The evidence for the drug

conviction is intertwined with the events that encompass the gun

charge.   We reverse the district court’s grant of Deville’s motion

for judgment of acquittal.



   II.    The Increase in Deville’s Sentencing Guidelines Score

     Next, Deville appeals the district court’s two level increase

of his sentencing guidelines score based on a finding that he

abused a position of public trust in the commission of a drug



                                 11
trafficking offense.   Deville claims that the government presented

no reliable evidence to show that he used his position as Chief of

Police for the Town of Duson to facilitate the commission or

concealment of drug related activity.        He maintains that the

government did not present any evidence to show that he knew that

Lanier Cherry was involved in drug distribution until after he left

office in 1998 or that he used his position as police chief to

facilitate or conceal his November 17, 1998 trip to Houston.     We

affirm the district court.

      Section 3B1.3 of the United States Sentencing Guidelines

provides for a two-level increase in the offense level "[i]f the

defendant abused a position of public or private trust, or used a

special skill, in a manner that significantly facilitated the

commission or concealment of the offense."    While a trial court's

application of the Sentencing Guidelines is reviewed de novo, its

factual findings are reviewed only for clear error.    United States

v. Dixon, 132 F.3d 192 (5th Cir.1997).   Because “the application of

§ 3B1.3 is a sophisticated factual determination,” we review a §

3B1.3 sentencing enhancement under a clearly erroneous standard.

United States v. Fisher, 7 F.3d 69, 70 (5th Cir. 1993); United

States v. Iloani, 143 F.3d 921, 922 (5th Cir. 1998).

     The district court found that Deville should get the two point

enhancement because he participated in transporting marijuana for

Cherry while he was acting as Police Chief of Duson and because he

was aware of Cherry’s illegal drug trafficking and failed to take

action against Cherry.

                                 12
     The district court’s findings are not clearly erroneous.   The

evidence in this case adequately supports the court’s findings that

Deville abused a position of public trust.   Defeated but not out of

office, Deville knew about Cherry’s drug trafficking activities and

failed to take any action.    He was present at Cherry’s house on

several occasions when people, including Cherry, had been smoking

marijuana.     He was present when Cherry was packing bundles of

marijuana for distribution. Deville never made any effort to seize

the marijuana or arrest anyone involved in the illegal activities.

Deville transported marijuana for Cherry while he was still acting

Police Chief and he believed that his badge would enable him to

transport the drugs without any problems from other law enforcement

officials. The overwhelming evidence supports the conclusion that,

although a lame duck, Deville used his position as police chief to

significantly facilitate the commission or concealment of a crime.

     We turn now to the issues Cherry raises.



        III.   Cherry’s Classification as a Career Offender

     On April 29, 1981 Lanier Cherry was convicted in the Western

District of Louisiana for two counts of distribution of Dilaudid.

On December 23, 1981, Cherry was also convicted in the Eastern

District of Louisiana of conspiracy to distribute Dilaudid and

distribution of Dilaudid.     When calculating Cherry’s criminal

history score for the purpose of sentencing in this case, the

district court found that Cherry’s two prior convictions were not

related. (If they were deemed related, Cherry would avoid the career

                                 13
offender taint).

     Cherry assets that under United States v. Robinson, 187 F.3d

516, 520 (5th Cir. 1999), his prior convictions should be considered

related because the distribution conviction in the Western District

of Louisiana involved the conspiracy to distribute Dilaudid that

Cherry was convicted on in the Eastern District of Louisiana.           The

government responds that the district court was correct in not

treating Cherry’s prior convictions as related because they involved

separate drug distributions on different dates involving different

cooperating individuals.

     Application of the Sentencing Guidelines is a question of law

subject to de novo review.      United States v. Otero, 868 F.2d 1412,

1414 (5th Cir.1989).

     U.S.S.G § 4B1.1 provides enhanced punishment for any “career

offender,” which includes criminals with at least two prior felony

convictions for either a crime of violence or a controlled substance

offense.   Under U.S.S.G § 4A1.2(a)(2), prior sentences imposed in

“related   cases”   are   to   be   considered   as   one   sentence   when

calculating a defendant’s criminal history score.           The Commentary

to this section instructs that a sentencing court should consider

previous cases to be related if they occurred on a single occasion,

were part of a single scheme, or "were consolidated for trial or

sentencing." U.S.S.G. § 4A1.2, application note 3.          The Commentary

adds that “[p]rior sentences are not considered related if they were

for offenses that were separated by an intervening arrest (i.e., the

defendant is arrested for the first offense prior to committing the

                                     14
second offense).”

      Here, Cherry pleaded guilty to the conspiracy charges in the

Eastern   District    of   Louisiana      after   he   was   convicted   on   the

distribution charges in the Western District of Louisiana.               He was

arrested for distribution of Dilaudid in the Western District of

Louisiana on December 3, 1980 and on December 22, 1981, over a year

later, he was arrested for conspiracy to distribute Dilaudid and

distribution of Dilaudid from February 1977 until May 1981 in the

Eastern District of Louisiana.            Thus, under the guidelines, the

December 3, 1980 arrest would be intervening, because it was before

the   commission     of    the   second     offense,    and,   therefore,     the

convictions would not be deemed related.           Furthermore, Cherry’s two

prior convictions occurred in different districts and involved

separate drug distributions on different days involving different

cooperating individuals.

      Cherry’s reliance on United States v. Robinson, 187 F.3d

516(5th Cir. 1999) is misplaced.             In Robinson, we held that the

prior convictions were related because during the commission of the

first offense the defendant arranged the crack distribution that

eventually resulted in his second offense. That fact setting is not

present here.      Thus, we affirm the district court’s finding that

Cherry’s prior convictions were not related.



                     IV.    Denial of Equal Protection

      Cherry next asserts that failure to consider the convictions

as being related amounts to an unconstitutional denial of equal

                                       15
protection.       Lanier    Cherry’s    ex-wife,     Tina   Cherry,     was   also

convicted on the same Dilaudid charges as Cherry.              When they were

sentenced in those cases, they both received identical sentences.

Tina Cherry was later convicted on marijuana distribution charges

unrelated to Cherry’s. When she was sentenced, the court apparently

considered    the   two    prior   Dilaudid    convictions    to   be   related.

Because Cherry’s two prior Diluadid convictions were not considered

to be related, Cherry argues that he was denied equal protection

under the law.      Cherry raises this issue for the first time on

appeal and brings to our attention no helpful precedent.

     “This Court will not address an issue raised for the first time

on appeal unless it is a purely legal issue and the refusal to

consider it would result in a miscarriage of justice.”                Aguirre v.

Armstrong World Indus., Inc., 901 F.2d 1256, 1258 (5th Cir.1990).

An equal protection claim raised for the first time on appeal and

which does not equate with plain error, will not be considered.

United States v. O’Banion, 943 F.2d 1422, 1432(5th Cir. 1991).

Because we find that Cherry’s sentence was correctly calculated

under the guidelines, our refusal to hear his equal protection claim

based on the calculation of his sentence would not result in a

miscarriage of justice.

     We also note that “[a] defendant cannot rely upon the sentences

which other defendants receive as any yard stick for his sentence.”

United   States     v.     Atkins,     618    F.2d   366,    373-74(5th       Cir.

1980)(citations omitted); United States v. Garcia, 693 F.2d 412 (5th

Cir. 1982)(no denial of equal protection when defendant received

                                        16
harsher sentence that his co-defendant).



                       V.    Cherry’s Apprendi Issue

       Finally, Cherry raises Apprendi v. New Jersey, 530 U.S. 466,

120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and insists that decision

invalidates his sentence because the government abandoned its

allegations as to drug quantity in the pleadings.                 We do not agree.

In Apprendi, the Supreme Court held that "[o]ther 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, 120 S.Ct. at

2362-63.

       Cherry pleaded guilty to Count I of the indictment charging him

with conspiracy to distribute and possess with the intent to

distribute more than 1,000 kilograms of marijuana.                During the plea

colloquy, Cherry’s counsel acknowledged that he was pleading guilty

to the conspiracy charge, but contested the 1,000 kilogram quantity

alleged in the indictment.               However, Cherry entered a written

factual    stipulation      in   which    he    agreed   that   he    conspired   to

distribute and possess with the intent to distribute “at least 100

kilograms or more” or marijuana.                The truth or accuracy of this

stipulation has not been and cannot be challenged.                   Because Cherry

was sentenced within the permissible guidelines for distribution of

at least 100 kilograms of marijuana, as Cherry admits, Apprendi

simply does not apply.           United States v. Fort, 248 F.3d 475, 483

(5th   Cir.),   cert   denied,     2001    WL    1045506   (Oct   15,   2001)(when

                                          17
defendant stipulated to the amount of drugs at the time of his plea

and the sentence was enhanced within the statutory range based on

stipulation, Apprendi does not apply).

     Accordingly, the district court's grant of the motion for

judgment of acquittal is REVERSED. On all other issues the district

court is AFFIRMED.   This case is Reversed in part and Affirmed in

part and Remanded for further proceedings consistent with this

opinion.




                                18
