                                                                  FILED
                                                      United States Court of Appeals
                       UNITED STATES COURT OF APPEALS         Tenth Circuit

                                    TENTH CIRCUIT                          September 19, 2012

                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court

 UNITED STATES OF AMERICA,

        Plaintiff - Appellee,                                No. 11-6097
                                                     (D.C. No. 5:10-CR-00072-D-1)
 v.                                                          (W.D. Okla.)

 REGINALD A. LANCASTER,

        Defendant - Appellant.


                                ORDER AND JUDGMENT*


Before LUCERO, EBEL, and MATHESON, Circuit Judges.


       In this direct criminal appeal, Defendant-Appellant Reginald Lancaster challenges

his four drug-trafficking convictions and the sentence imposed for those convictions.

Having jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291, we affirm.

                                   I. BACKGROUND

       Viewed in the light most favorable to the United States, see United States v. Diaz,

679 F.3d 1183, 1187 (10th Cir. 2012), the evidence presented at trial established the

following: Over the course of one year, police found Lancaster in possession of illegal


       * This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
drugs on three occasions. First, on August 15, 2008, officers conducting a traffic stop

found Lancaster with 4.5 grams of cocaine base (“crack”). Second, on November 3,

2008, Lancaster, loitering near a vacant house, had twenty-eight grams (one ounce) of

marijuana, $237 in small bills and two cell phones. And third, on July 17, 2009, after a

police officer saw what appeared to be a hand-to-hand drug transaction between

Lancaster and another person, officers found Lancaster with 77.22 grams of marijuana

which he admitted he intended to distribute.

       In addition to finding Lancaster in possession of drugs on these three occasions,

police, acting pursuant to an authorized wiretap of drug dealer Gregory Boone, recorded

a July 3, 2009, call between Boone and Lancaster. During that call, Lancaster attempted

to buy marijuana from Boone.

       Based on these incidents, as well as additional information Boone provided against

Lancaster, the United States indicted Lancaster on eleven drug-trafficking charges

involving crack and marijuana. A jury convicted him of four of those charges:

1) possessing, with the intent to distribute, five grams or more of crack on August 15,

2008 (Count 1); 2) possessing marijuana, with the intent to distribute, on November 3,

2008 (Count 3); 3) using a telephone, on July 3, 2009, to attempt to buy marijuana (Count

10); and 4) possessing marijuana, with the intent to distribute, on July 17, 2009 (Count

11). The district court sentenced Lancaster to 151 months in prison on Count 1, and sixty

months in prison on each of Counts 3, 10, and 11, all to run concurrently. On appeal,

Lancaster challenges all four convictions and his sentence.
                                               2
                           II. LANCASTER’S CONVICTIONS

A. There was sufficient evidence to support Lancaster’s conviction on Count 1

         Lancaster first argues that there was insufficient evidence to convict him on

Count 1. We review this argument de novo. See Diaz, 679 F.3d at 1187.

         Count 1 charged Lancaster with possessing with the intent to distribute “5 grams

or more of a mixture or substance containing a detectable amount of cocaine base

(crack)” on August 15, 2008. (R. v. 1 at 13.) The jury convicted Lancaster of this

charge, and specifically found that the offense involved “5 grams or more” of crack. (Id.

at 117.) On appeal, Lancaster argues that 1) the evidence at trial established that he

possessed only 4.5 grams of crack on that day; and 2) because the amount of crack

charged in the indictment was an element of the offense which the United States failed to

prove, the district court should have granted him a judgment of acquittal on Count 1.

         We assume, without deciding, that there was insufficient evidence to support the

jury’s finding that Lancaster possessed five grams of crack on August 15.1 Nonetheless,

because we conclude the amount of drugs charged in the indictment was not an essential

element of the offense charged in Count 1, we affirm Lancaster’s conviction on that

count.

1
 The evidence at trial established that, when Lancaster ran from police, he threw away a
bag containing 4.21 grams of crack. And at the county jail, after his apprehension and
arrest, Lancaster had an additional .29 grams of crack in his pockets, for a total of 4.5
grams of crack. Because we assume here that Lancaster possessed only these 4.5 grams
of crack on August 15, 2008, we need not address the Government’s argument that there
was other evidence presented at trial from which a jury could have inferred that Lancaster
possessed at least another .5 grams of crack earlier that same day.
                                               3
       Count 1 charged Lancaster with possessing crack with the intent to distribute it, in

violation of 21 U.S.C. § 841(a)(1). Section 841(a)(1) provides, in pertinent part, that “it

shall be unlawful for any person knowingly or intentionally . . . to . . . possess with the

intent to . . . distribute . . . a controlled substance.” The jury convicted Lancaster of that

offense, finding as an initial matter that the offense involved at least a measurable amount

of crack. There was sufficient evidence to support that conviction involving at least a

measurable amount of crack, and Lancaster does not argue to the contrary.

       Lancaster’s conviction for possessing crack with the intent to distribute was

subject to a three-tiered statutory sentencing scheme. See 21 U.S.C. §841(b). At the time

Lancaster committed this offense, that sentencing scheme provided the following

maximum penalties for a § 841(a) crack offense: an offense involving an indeterminate

amount of crack was punishable by not more than twenty years in prison, id.

§ 841(b)(1)(C) (2009); an offense involving five grams or more of crack was punishable

by not more than forty years in prison, see id. § 841(b)(1)(B)(iii) (2009); and an offense

involving fifty grams or more of crack was punishable by up to life in prison, see id.

§ 841(b)(1)(A)(iii) (2009).2


2
  After Lancaster’s offense, Congress, through the Fair Sentencing Act, revised 21 U.S.C.
§ 841(b)(1)(A)(iii) and (B)(iii), effective August 3, 2010, to provide for a sentence of
between five and forty years in prison for an offense involving twenty-eight or more
grams of crack, and a sentence of between ten years to life in prison for an offense
involving 280 grams of crack. See Dorsey v. United States, 132 S. Ct. 2321, 2329
(2012). Those revisions apply retroactively to someone in Lancaster’s position, who
committed his offense before August 3, 2010, but was sentenced after that date. See id.
at 2326 (addressing mandatory minimum sentences provided in § 841(b)(1)(A) and (B)).
                                               4
       “Drug quantity is an essential element [of a § 841(a) offense] only if the quantity

triggers a sentence beyond the maximum allowed for the violation of the base § 841(a)(1)

offense” involving only an indeterminate drug quantity under § 841(b)(1)(C). United

States v. Caldwell, 589 F.3d 1323, 1333 (10th Cir. 2009) (emphasis added). “The

corollary of this statement is that the quantity of drugs involved in a violation of § 841 is

not an essential element of the offense if the district court imposes a sentence that does

not exceed the maximum set forth in § 841(b)(1)(C), which does not require any

minimum quantity as a predicate for sentencing.” United States v. Walters, 163 F. App’x

674, 680 (10th Cir. 2006) (unpublished).

       Here, because the district court imposed a 151-month sentence, which fell within

the twenty-year statutory maximum sentence available for a base § 841(a) offense

involving an indeterminate amount of crack, drug quantity was not an essential element

of Lancaster’s offense. Therefore, the Government’s failure to prove drug quantity to the

jury beyond a reasonable doubt is of no moment in this case. See United States v.

Wilson, 244 F.3d 1208, 1214-16 (10th Cir. 2001); see also United States v. Jordan, 428

F. App’x 812, 817 (10th Cir. 2011) (unpublished) (upholding 210-month sentence where

indictment charged offense under § 841(a)(1) and (b)(1)(A) involving five or more

kilograms of a mixture containing cocaine, but the defendant, in his plea agreement,



Those revisions, however, do not affect our discussion here because, assuming the
Government failed to prove that Lancaster’s § 841(a) offense involved five grams or
more of crack, he would not have been subject to an enhanced sentence under
§ 841(b)(1)(A) or (B), either before or after the Fair Sentencing Act’s enactment.
                                              5
admitted to conduct involving only 3.5 to five kilograms of cocaine, where the sentence

imposed did not exceed the maximum twenty-year sentence available under

§ 841(b)(1)(C) for an offense involving an indeterminate amount of cocaine).

       Further, the jury’s finding that Lancaster was guilty, under Count 1, of possessing

a measurable amount of crack on August 15, 2008, with the intent to distribute it was not

affected by the Government charging Lancaster in the indictment with a § 841(a) offense

involving five grams or more of crack, and the jury finding (we are assuming improperly)

that Lancaster’s offense involved five grams or more of crack. See Caldwell, 589 F.3d at

1333. The trial court instructed the jurors, without objection, that to convict Lancaster on

Count 1, they had first to determine whether Lancaster possessed a measurable amount of

crack on August 15, 2008, with the intent to distribute it. Only after convicting Lancaster

of that offense did the jury then decide whether or not the offense involved five grams or

more of crack.

       We, therefore, uphold Lancaster’s conviction on Count 1.

B. Lancaster waived his challenge to the search underlying Count 11

       Lancaster next challenges his conviction on Count 11, which charged him with

possessing 77.22 grams of marijuana on July 17, 2009. Lancaster contends that, because

he never consented to the pat-down search that resulted in police finding the marijuana,

that search was unconstitutional and the trial court should have suppressed the marijuana.

       Lancaster, however, never moved prior to trial to suppress this evidence, even

though Fed. R. Crim. P. 12(b)(3)(C) requires a defendant to make a motion to suppress
                                             6
evidence before trial. Failure to do so waives the issue, barring review. See Rule 12(e);

United States v. Burke, 633 F.3d 984, 987-89 (10th Cir.), cert. denied, 131 S. Ct. 2130

(2011).

       Lancaster acknowledged that his attorney did not challenge the constitutionality of

this search before trial, but he asserts that defense counsel objected to the search during

trial, which still preserved the issue for appellate review. Lancaster’s attorney, however,

never specifically objected to the constitutionality of this search at trial, either.

       Even if counsel had specifically objected to the validity of the search during trial,

however, that would still be insufficient to preserve this issue for appellate review. See

Burke, 633 F.3d at 988 & n.1 (rejecting prior Tenth Circuit cases permitting judicial

review when a defendant failed to challenge a search prior to trial).

       Rule 12(e) does provides that, “[f]or good cause, the court may grant relief from

the waiver,” but that is only “a single narrow exception to the waiver rule,” Burke, 633

F.3d at 988 (internal quotation marks omitted). When, as here, a defendant raises a

suppression issue for the first time on appeal, he can attempt to satisfy Rule 12(e) by

showing “good cause” why he could not have raised the matter before the district court.

See Burke, 633 F.3d at 988. But Lancaster never attempts to make such a showing,

asserting instead that “[t]he reason why no motion to suppress was filed is unknown. It

could have been that discovery materials had not described the situation adequately, or it

could have been that Appellant’s trial counsel negligently failed to file an appropriate

pleading.” (Aplt. Reply Br. at 19.) Lancaster has, therefore, waived his challenge to the
                                                7
constitutionality of the pat-down search occurring on July 17, 2009. See Burke, 633 F.3d

at 988.

C. The district court did not err in admitting evidence referring to gangs and
Lancaster’s gang membership

          Next, Lancaster asserts that all four of his convictions should be reversed because

the district court erred in permitting the prosecution to elicit testimony referring to

Lancaster’s gang membership. Lancaster contends the probative value of this gang

evidence was outweighed by its unfair prejudice to him. See Fed. R. Evid. 403. But we

conclude the trial court did not abuse its discretion in its treatment of this evidence. See

United States v. Ford, 613 F.3d 1263, 1267 (10th Cir. 2010) (reviewing evidentiary ruling

for an abuse of discretion).

          There were three categories of gang-related evidence presented at trial. First, two

Government witnesses, police Sergeant Brian Cook and convicted drug dealer Gregory

Boone, testified that Lancaster belonged to a gang. The trial court originally permitted

this testimony under Fed. R. Evid. 404(b), based upon the Government’s assertion that

this evidence was relevant to Lancaster’s identity, motive, intent, lack of mistake or

accident, plan, and preparation. At the conclusion of the Government’s case, however,

the district court sua sponte ruled that the United States had failed to show that this

testimony that Lancaster was in a gang was relevant for these Rule 404(b) purposes. The

district court, therefore, instructed jurors to disregard Cook’s and Boone’s testimony that

Lancaster was in a gang. We presume that jurors followed the court’s instructions. See

                                                8
United States v. Chavez, 481 F.3d 1274, 1278 (10th Cir. 2007).

         The second category of evidence that Lancaster was in a gang was his own

testimony. The trial court, over Lancaster’s objection, permitted the Government, on

cross-examination, to ask him about his offer to cooperate with police in exchange for

lenient treatment. During that cross-examination, Lancaster denied that he was a Pitts

Park Hoover Crip and stated that, in offering to cooperate with authorities, Lancaster told

police that he did not want to provide any information about his friend, meaning Gregory

Boone, but that he would “help” officers “with anything else.” (R. v. 4 trial tr. at 430-

31.) The district court permitted this cross-examination after ruling the defense had

opened the door to it by eliciting Lancaster’s direct testimony about his willingness to

cooperate with police. At the conclusion of Lancaster’s testimony, the court, at defense

counsel’s request, gave the jury a limiting instruction.3 And the court included a similar



3
    The court instructed jurors as follows:

                Members of the jury, you’ve heard some references in testimony
         regarding Mr. Lancaster’s purported gang affiliation or knowledge of other
         purported gang members and their activities. You may consider that
         evidence only as it bears upon the – Mr. Lancaster’s credibility as a
         witness. And you may also consider it as it bears on Mr. Lancaster’s intent
         and knowledge in connection with the charged offenses. You may not
         consider that evidence for any other purpose than those.

                The fact that the – that Mr. Lancaster may have had knowledge of
         other gang members or may have had some purported gang affiliation does
         not necessarily mean that he has committed any of the offenses charged in
         this case.

                                              9
limiting instruction in the final instructions given jurors before their deliberations.

        The third category of gang-related evidence admitted at trial included the

following: Three Oklahoma City police officers testified that at the time they encountered

Lancaster, they were working as part of an anti-gang project funded by a federal grant. A

fourth officer testified that he had attended several gang investigators’ conferences. Still

another officer testified that there was a lot of gang and drug activity in the area where he

encountered Lancaster. The FBI case agent also testified that he worked with “gang

enforcement units.” (Id. at 105-06, 126-27.)

        We conclude the district court did not abuse its discretion in its treatment of this

evidence, considered separately or cumulatively. Even if the district court erred in its

treatment of some of this evidence, which we conclude it did not, any error would have

been harmless. See Caldwell, 589 F.3d at 1334. The evidence of Lancaster’s guilt on

each of the four charges on which the jury convicted him was overwhelming. Further,

we could not conclude that the gang-related evidence improperly swayed the jury to

convict Lancaster in light of the fact that the jury acquitted him of seven of the eleven

charged offenses. Cf. Bailey v. United States, 410 F.2d 1209, 1212, 1215 (10th Cir.

1969) (noting jury’s decision to acquit two of five defendants showed jury remained

impartial).



              This instruction does not alter the instruction I gave you yesterday
        when I struck portions of the testimony of Sergeant Cook or Mr. Boone.

(R. v. 4 trial tr. at 443.)
                                              10
                            III. LANCASTER’S SENTENCE

       Lastly, Lancaster challenges his 151-month sentence, arguing the district court

clearly erred in finding that he was responsible for distributing nine ounces (252 grams)

of crack. The district court then used that drug quantity to calculate Lancaster’s advisory

sentencing guidelines range.4

       For sentencing purposes, the Government must prove drug quantity by a

preponderance of the evidence. United States v. Foy, 641 F.3d 455, 468 (10th Cir.), cert.

denied, 132 S. Ct. 467 (2011). We review a sentencing court’s factual findings regarding

drug quantities for clear error; we will reverse “only if the district court’s finding was

without factual support in the record or we are left with the definite and firm conviction

that a mistake has been made.” Id.

       Where, as here, at least for the most part, “the actual drugs underlying a drug

quantity determination are not seized, the trial court may rely upon an estimate to

establish the defendant’s guideline offense level so long as the information relied upon

has some basis of support in the facts of the particular case and bears sufficient indicia of

reliability.” Id. (internal quotation marks omitted). “‘When choosing between a number

of plausible estimates of drug quantity, none of which is more likely than not the correct

quantity, a court must err on the side of caution.’” United States v. Higgins, 282 F.3d

4
  Although Lancaster’s relevant conduct, for sentencing purpose, also involved
marijuana, the parties agree that the amount of marijuana with which Lancaster was
involved had a negligible impact on his sentence, and it is the amount of crack for which
he is responsible that drove the determination of his offense level and the resulting
advisory guideline range.
                                              11
1261, 1280 (10th Cir. 2002) (quoting United States v. Richards, 27 F.3d 465, 469 (10th

Cir. 1994)).

       In this case, the presentence report determined that, for sentencing purposes,

Lancaster was responsible for distributing 61.75 ounces of crack. This was based on a

statement Lancaster made to police in July 2009 indicating that he bought at least a half

ounce of crack every other day from June 2008 through July 2009. That amount, 61.75

ounces of crack, resulted in an offense level of 34, which produced an advisory guideline

range of 188 to 235 months. Lancaster objected to this amount, and at sentencing, the

district court found, instead, that it was “very probable” that Lancaster was responsible

for distributing “somewhere between” nine and 61.75 ounces of crack. (R. v.4

sentencing tr. at 142-43). “[E]rring on the side of caution,” however, the sentencing court

ultimately found Lancaster responsible for nine ounces of crack. (Id. at 143-44.) That

finding reduced Lancaster’s offense level to 30, and his advisory guideline range to 121

to 151 months in prison. The district court then imposed a sentence at the top of that

range, 151 months, for Count 1, and sixty months each for Counts 3, 10 and 11, all to run

concurrently.

       The Government presented sufficient evidence to support the trial court’s finding,

by a preponderance, that Lancaster’s relevant conduct involved nine ounces of crack. In

particular, Gregory Boone testified at trial that he sold Lancaster a total of “at least” 4.5

to nine ounces of crack. (Id. at 173.)

       Lancaster argues that the district court should not have relied on Boone’s
                                              12
testimony because the jury clearly found his testimony to be incredible, in light of the fact

that the jury acquitted Lancaster on the seven counts that were based solely on Boone’s

uncorroborated testimony. But the sentencing court is not bound by the jury’s implicit

credibility determinations. See United States v. Rhynes, 196 F.3d 207, 240 (4th Cir.

1999), opinion vacated in part on other grounds, 218 F.3d 310 (4th Cir. 2000). And the

district court here expressly noted at sentencing that it did not “necessarily share th[e]

[jury’s] apparent credibility determination” regarding Boone’s trial testimony. (R. v.4

sentencing tr. at 142.)

       In any event, there was additional evidence that corroborated Boone’s testimony

and that suggests that the trial court’s finding that Lancaster was responsible for nine

ounces of crack was a conservative estimate. Boone further testified at trial that he

believed that Lancaster had other, better crack suppliers, and that Lancaster would buy

crack from Boone only when Lancaster was having trouble getting it from his other

suppliers. And two Oklahoma City police officers testified that Lancaster himself told

them that he bought drugs from several suppliers other than Boone. Moreover, according

to these officers, Lancaster admitted to buying a half to a full ounce every other day for

approximately one year. And at sentencing, Sylvia Moore, who had been detained in the

same facility with Lancaster after his arrest, testified that Lancaster had a half ounce of

crack with him in the facility, which he told Moore he was still selling to his customers.

This evidence prompted the district court to note that it was “very probable” that

Lancaster was responsible for distributing “somewhere between” nine and 61.75 ounces
                                              13
of crack. (Id. at 142-43). Thus the district court, in finding that Lancaster was

responsible for nine ounces of crack, properly erred on the side of caution.

       On appeal, Lancaster asserts numerous reasons why the sentencing court should

not have believed either Boone’s trial testimony or his own. But we will defer to the

district court’s credibility determinations. See United States v. Keeling, 235 F.3d 533,

535 (10th Cir. 2000). We, therefore, conclude the district court’s factual finding that, for

sentencing purposes, Lancaster was responsible for distributing nine ounces of crack, was

not clearly erroneous and, thus, uphold Lancaster’s 151-month sentence.5

                                   III. CONCLUSION

       For the foregoing reasons, we AFFIRM Lancaster’s four convictions and his 151-

month sentence.

                                          ENTERED FOR THE COURT



                                          David M. Ebel
                                          Circuit Judge

5
 In sentencing Lancaster, the district court deemed him subject to a mandatory minimum
five-year sentence under 21 U.S.C. § 841(b)(1)(B), based on the jury’s finding that Count
1 involved five grams or more of crack. But we have assumed, for purposes of this
appeal, that the Government failed to prove that Count 1 involved that much crack.
Further, the Supreme Court has held that the Fair Sentencing Act of 2010 applies
retroactively to defendants like Lancaster. See Dorsey, 132 S. Ct. at 2326. That Act
requires proof that the § 841(a) offense involved, not five, but twenty-eight grams or
more of crack. See id. at 2329. For both of those reasons, then, Lancaster should not
have been subjected to a mandatory minimum five-year sentence. Nonetheless, any error
the sentencing court made in deeming a five-year mandatory minimum sentence to apply
to Lancaster did not affect his sentence, because the district court imposed a 151-month
sentence after correctly applying the sentencing guidelines.
                                             14
