                                                                        [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT                           FILED
                              ________________________                U.S. COURT OF APPEALS
                                                                        ELEVENTH CIRCUIT
                                                                            April 26, 2006
                                     No. 03-14413                         THOMAS K. KAHN
                               ________________________                       CLERK

                           D. C. Docket No. 01-08084-CR-JAL

UNITED STATES OF AMERICA,


                                                                            Plaintiff-Appellee,

                                             versus

ELROY ANTONIO PHILLIPS,
a.k.a. 86,
a.k.a. 6,

                                                                        Defendant-Appellant.


                               ________________________

                       Appeal from the United States District Court
                           for the Southern District of Florida
                             _________________________

                                       (April 26, 2006)

Before DUBINA and KRAVITCH, Circuit Judges, and STROM *, District Judge.


       *
          Honorable Lyle E. Strom, United States District Judge for the District of Nebraska,
sitting by designation.
KRAVITCH, Circuit Judge:

      Defendant Elroy Phillips was convicted on five of twenty-one counts in a

second superceding indictment charging him with narcotics and firearms offenses.

On appeal he challenges his conviction and sentences. We affirm the conviction

but reverse and remand for resentencing.

                                   I. Background

      On January 31, 2002, Phillips and co-defendants Ben Black, Jr. and Theresa

Ann Hanif were charged in a second superceding indictment with various federal

narcotics and firearms offenses. At trial, the government’s case against Phillips

focused on his and others’ distributing, conspiring to distribute, and manufacturing

crack cocaine and powder cocaine from Apartment 2 at 625 8th Street and 1103

35th Street, both in West Palm Beach, Florida. Several other individuals,

including James Yearby, Stephanie White, Rufus Williams, and Roscoe Cooper,

were also indicted for drug activities at 625 8th Street and in the surrounding area.

Several of the counts against Phillips involved drug sales by at least one of these

individuals to a confidential informant (“CI”) or undercover law enforcement

officer. Yearby, White, Williams, Cooper, and Black pleaded guilty and agreed to

testify against Phillips. The government disclosed that all the cooperating

defendants received limited use immunity and other assistance from the



                                           2
government and all but White were convicted felons.

       The government’s theory was that even though the individuals conducting

the day-to-day drug sales at 625 8th Street changed every few months, Phillips was

the distributor and ringleader who consistently operated 625 8th Street from late

1999 to May or June 2001. The dealers at 625 8th Street mainly sold crack

cocaine, which several witnesses said Phillips made at 1103 35th Street and usually

had others deliver to 625 8th Street. According to Williams’s testimony, by early

2000, Dwayne Morley was selling drugs from 625 8th Street for Phillips. Williams

testified that Morley eventually left Phillips’s employ and started selling drugs

from a location adjacent to 625 8th Street at 7th Street and N. Rosemary Avenue in

West Palm Beach. White testified that several individuals sold from early 2000

until September 2000, including herself and Yvelle Phillips, the defendant’s sister.

In September or October 2000, Yearby, who formerly worked for Morley, became

the primary seller at 625 8th Street, working principally with Cooper. Yearby

testified that in mid-March 2001, he stole Phillips’s car and some of Phillips’s

drugs and left for Miami. Black testified that he began selling drugs for Phillips at

625 8th Street in mid-March 2001, working with “a dude named Aunte” and “a

dude named Unc” at times, and left in early May 2001.1


       1
        Both Yearby and Black denied knowing each other. Viewing Black’s and Yearby’s
testimony in the light most favorable to the government, Phillips recruited Black to replace

                                               3
       The government presented detailed evidence from the cooperating

defendants, local police officers, and members of the Drug Enforcement

Administration (“DEA”) to prove the charges against Phillips. For example, White

testified that she lived with Phillips at 1103 35th Street from March to December

2000 and occasionally thereafter until her arrest in April 2001. According to

White, she spent most of her time from March to December 2000 at 1103 35th

Street. She testified that she saw Phillips with powder cocaine in the apartment

numerous times and explained how Phillips converted the powder cocaine into

crack cocaine to sell at 625 8th Street. White admitted to being an active member

of a conspiracy run by Phillips to distribute drugs from 625 8th Street, primarily by

packaging the crack cocaine into small baggies, delivering the baggies to the

sellers at 625 8th Street once or twice daily, and collecting the proceeds from the

drug sales. She also stated that she accompanied Phillips to Miami a few times to

purchase amounts of powder cocaine ranging from a few ounces to a half-kilogram

and once saw an individual deliver powder cocaine to Phillips at 1103 35th Street.

White was arrested on April 11, 2001 and pleaded guilty to two narcotics offenses

stemming from a sale to a CI.

       Yearby testified that he began to work for Phillips at 625 8th Street in



Yearby after Yearby left for Miami.

                                           4
October 2000. Shortly after Phillips hired him, Yearby moved into Apartment 2 at

625 8th Street and lived there until March 2001, sharing the apartment with Cooper

for a time; with Phillips’s permission, Yearby paid the rent from the drug

proceeds.2 From October 2000 to March 2001, Yearby was the primary seller at

625 8th Street and was responsible for controlling the drugs and drug proceeds and

for hiring lookouts to alert him of police in the area. Yearby generally worked

everyday from approximately 4:00 p.m. when Phillips arrived with a supply of

crack and powder cocaine until 5:00 a.m. Yearby testified that Gene Horn,

Phillips, or White would come to 625 8th Street a few times per night with a new

supply of drugs. DEA Special Agent Robert Smith testified, and Yearby admitted,

that Yearby and Cooper made several large sales of crack cocaine to a CI and him.

Yearby was arrested on April 11, 2001 and later pleaded guilty to possession of

and conspiracy to distribute five or more grams of crack cocaine.

       Williams testified that with Phillips’s sister’s assistance, he delivered

powdered cocaine twice from Miami to Phillips in West Palm Beach.

Additionally, he testified that in late 2000 or early 2001 Phillips tried to recruit him

to replace Yearby. Williams initially rejected the offer but after a dispute with

Morley, Williams started selling crack cocaine for Phillips from Morley’s location


       2
        Yearby testified that Karen Black, an otherwise unidentified individual, rented the
apartment but stated that Phillips paid the bills.

                                                5
at 7th Street and N. Rosemary Avenue. This arrangement continued without

Morley’s knowledge from January to March 2001. On one occasion in January

2001, Yearby did not have enough crack cocaine for a CI; therefore, Yearby and

the CI went to see Williams and Williams sold crack cocaine to the CI. Finally, he

testified that Phillips’s uncle began selling at 625 8th Street after Yearby left.

Williams was arrested in May 2001 following his indictment for the sale to the CI

and another sale. He pleaded guilty to one count, and the other was dismissed.

      Black testified he began working for Phillips at 625 8th Street in mid-March

2001. A “dude named Unc” was the primary seller for the first two weeks after

Black arrived. Black would get the drugs from Phillips or a “dude named Aunte”

would deliver them, and Black would give them to Unc to sell and Black would

collect the money from Unc. Black also noted that he once saw Phillips and Aunte

make crack cocaine at 625 8th Street and once witnessed a drug dealer bring a

kilogram of powder cocaine to Phillips. Black pleaded guilty to selling fifty or

more grams of crack cocaine and stated that he sold between $3000 and $4000 of

powder cocaine and crack cocaine per day five days per week until he left in early

May 2001. Black was arrested on June 16, 2001.

      West Palm Beach Police Department (“WPB PD”) Agent Michael Ghent

testified that on April 6, 2001, he and a CI went to 625 8th Street to make a



                                            6
controlled purchase of crack cocaine. Ghent testified that he was aware of the

DEA’s investigation in the area but did not know the specifics and that he began

surveillance in the area in January 2001 after receiving citizens’ complaints and

hearing from other officers about drug activity in the area. When they arrived,

Ghent and the CI observed Phillips across the street from 625 8th Street leaning

against a green truck with a license plate reading Trojan P. The CI identified

Phillips as “86,” a nickname several witnesses identified as Phillips’s nickname.

The CI approached Phillips and, with Ghent within an arm’s reach, asked Phillips

for a “50 pack.” 3 Then, Phillips went to Apartment 2, where he remained inside for

two to three minutes. When Phillips returned, he handed the CI five small, green

baggies each containing one rock of crack cocaine in exchange for $50.

       Ghent returned to 625 8th Street on April 20, 2001 – this time he was alone

– and attempted to make a purchase from Apartment 2. He approached the

apartment from the rear, and an older, black man exited Apartment 2 and asked

Ghent what he needed. Ghent responded that he wanted “lays,”4 and he asked for

86. The older man told Ghent that Ghent would have to ask 86 about purchasing




       3
           Ghent testified that a “50 pack” is $50 worth of crack cocaine.
       4
        Ghent testified that “lays” is “a common street term for a drug dealer to purchase larger
amounts of crack cocaine . . . .”

                                                  7
lays and told him that 86 was at the Sunset Club.5 The older man stated that he

only had smaller amounts of crack cocaine and showed Ghent approximately 300

bags containing $5 or $10 rocks of crack cocaine. When Ghent asked the older

man to get 86, the older man refused and told Ghent that he would have to get 86.

Ghent left the area without purchasing drugs or having any contact with Phillips.

       Ghent returned to 625 8th Street again on April 24, 2001. He was alone but

had other agents monitoring him with an electronic listening device. Ghent walked

to the rear door of Apartment 2 and purchased five $10 rocks of crack cocaine

from a man he later identified as Ben Black.

       WPB PD patrol officer Tony Marchese testified that he and Officers Gallon,

McCatlan, and Campagnano were outside the Sunset Club in the early morning of

June 8, 2001. Phillips was also at the Sunset Club, and when Marchese saw

Phillips he asked McCatlan for Phillips’s real name because he only knew Phillips

as 86. McCatlan did not know Phillips’s name either, and he radioed his patrol

supervisor, Sergeant King, to determine Phillips’s name. King responded that 86’s

name was Elroy Phillips and that there were federal warrants for his arrest. King

authorized the officers to stop Phillips.

       When Phillips left the club in his truck, the four officers followed, each in


       5
         Several witnesses testified that Phillips often went to the Sunset Club. The club is
located at 609 8th Street, just a few hundred yards from 625 8th Street.

                                                 8
his own vehicle. As Phillips proceeded down the road, he threw what appeared to

be glass from his vehicle, and Gallon initiated a stop. Phillips pulled over, but

when he stopped, he immediately exited his truck and walked to Gallon’s car. The

other three officers were also at the scene. Phillips refused to comply with

Gallon’s request to return to his truck, and when Gallon asked Phillips for his

driver’s license, insurance, and registration, Phillips told Marchese to retrieve the

items from his truck. Marchese testified that Phillips’s truck had a license plate

that read “Trojan P” and that he later learned that the vehicle was registered to

Phillips’s business, Trojan P.

       Marchese went to Phillips’s truck to find the items, and when looking in

Phillips’s truck, Marchese found on the console a cut off straw and a $100 bill that

appeared to have powder cocaine on it. Marchese testified that from his

experience, he knew that these items were indicative of cocaine use. Marchese told

Gallon about the items he found, and at about the same time, Phillips put his hands

in his pockets. Phillips refused to comply with Gallon’s request to remove his

hands from his pockets; then he pulled his hands from his pockets, threw money

into the air, and ran away from the officers.6 Marchese quickly caught Phillips,

placed him under arrest, and when searching him, found a bag of powder cocaine


       6
          Campagnano later testified that the money totaled more than $1000, but he could not
recall the exact amount.

                                               9
in his pocket.

      DEA Special Agent John Enockson testified that shortly after Phillips’s

arrest, he compiled information to obtain a search warrant for Phillips’s townhouse

at 1103 35th Street. DEA Agents Brad Uhl and Brian Smith testified that upon

Enockson’s request, they secured the residence until Enockson obtained a search

warrant. Uhl and Smith arrived in unmarked vehicles at 7:00 on the morning of

June 8, 2001. They sat in Uhl’s vehicle on the side of the building and remained at

the location until 4:30 p.m. when Enockson arrived with the search warrant. Uhl

testified that he and Smith occasionally patrolled around the townhouse but spent

most of their time in one location. Furthermore, Uhl testified that he participated

in the search of Phillips’s townhouse and learned that the sliding glass door in the

rear of the residence had an alarm. Uhl never heard an alarm from the time he

arrived in the morning until Enockson arrived with the search warrant.

      At approximately 12:15 p.m., a blue Chevy pulled up in front of the

townhouse at 1103 35th Street. A heavy set black woman exited the vehicle,

approached Smith’s undercover vehicle, and unsuccessfully tried to open the

passenger side door. When the agents questioned the woman, she said that she

believed the vehicle was her brother’s rental car and that the keys to her brother’s

residence were in the vehicle. The woman identified herself as Yvonne Phillips,



                                          10
and the agents told her that Elroy Phillips was arrested earlier that day and that

they were obtaining a search warrant for his townhouse. She then left the area

without incident.

      Enockson testified that he and several other agents arrived at approximately

4:30 p.m. to execute the search warrant. When the agents arrived, the townhouse’s

doors were locked and the windows were barred. An alarm sounded when the

agents entered through the front door. Enockson testified that the townhouse was

unoccupied but was in disarray, a movie was playing on the television, and boxes

were in the townhouse as if someone was packing. White later testified that to her

knowledge only she and Phillips had keys to the townhouse during the time she

lived there.

      When the agents searched the house they found several items commonly

associated with the manufacture, use, and sale of powder and crack cocaine: a pan

with cocaine residue, a Pyrex glass beaker next to the toilet, money wrappers,

small plastic baggies, and a small baggie, a straw, currency, a spoon, and a screen

case with cocaine residue. The agents also found a tray that contained a .9 mm

magazine for a Taurus handgun and other bullets under the bed in an upstairs

room, .38 caliber Remington bullets in the dresser drawer in the upstairs bedroom,

a .223 caliber round on the kitchen counter, and a box for a gun. Furthermore, the



                                          11
agents found mail sent to 1103 35th Street with the recipient listed as Elroy

Phillips and a car repair receipt that listed Stephanie White at 1103 35th Street as

the owner of the 1982 Cadillac DeVille with a Trojan P license plate.7 Finally, the

agents found a photograph of James Yearby printed from the Florida Department

of Corrections’s website; Enockson testified that the website allows individuals to

ascertain information on people currently and formerly incarcerated in the State of

Florida.

       The government also presented Phillips’s financial information, including

bank statements, receipts for expenses incurred by his lawn care service, receipts

showing he paid bills for his lawn care equipment, and a contract he had to perform

lawn care services for the VA. In closing, the government argued that Phillips did

not make much money from the VA contract and could not have paid all his

expenses from that salary.

       Phillips’s defense strategy was to concede that 625 8th Street was a center

for the distribution of powder and crack cocaine but focus on the government’s

lack of evidence showing that he dealt or directed others to deal drugs at 625 8th

Street. The defense noted that only once did a government agent see Phillips



       7
         WPB PD Agent Brian Kapper testified that he saw a green Ford F250 with a license
reading Trojan P parked outside 1103 35th Street on several occasions. Several witnesses
identified the truck as belonging to Phillips.

                                             12
allegedly dealing drugs in the area, and Phillips contended that the officer and CI

mistook Black for him. In his closing, Phillips argued that either Yearby or

Morley could have run 625 8th Street.8

       Even though White testified that Phillips manufactured crack cocaine at

1103 35th Street, the government never conducted surveillance at that location and

several trash pulls by WPB PD failed to produce evidence against Phillips. To the

extent that a search of the townhouse turned up materials often associated with the

possession and sale of powder and crack cocaine, Phillips had several government

witnesses concede that his townhouse was clean whenever they were there.

Phillips alleged that the townhouse was in disarray when the agents executed the

search warrant either because someone else was living there at the time or because

the government planted evidence to frame him. Furthermore, the government

failed to discover other materials commonly associated with drug dealing – e.g., a

scale, large sums of money, and stores of cocaine – that several cooperating

defendants testified they regularly saw in Phillips’s townhouse. Phillips supported

his first argument by getting Agents Smith and Uhl to concede that they arrived at

Phillips’s house several hours after his arrest and had not watched the entire

       8
         When a CI mentioned 86 during one undercover buy, Yearby replied, “I make way
more money than I usually make over there.” Furthermore, Phillips contended that a delivery
from White that the DEA caught on tape must have come from Morley’s because White could
not have arrived so quickly if she were coming from Phillips’s townhouse as White alleged she
did.

                                              13
building during their time there. At bottom, Phillips contended that he was a

budding businessman with his own lawn care service and that those who testified

against him were drug dealers, drug users, and convicted felons, who were just

looking to implicate someone else so they could get their sentences reduced.

       The jury convicted Phillips on: (1) Count 1 for conspiracy to distribute five

or less grams of crack cocaine; (2) Count 9 for distributing a detectable amount of

crack cocaine on April 6, 2001; (3) Count 11 for possessing a detectable amount of

powder cocaine on June 8, 2001; (4) Count 14 for being a convicted felon in

possession of one or more rounds of .38 caliber Remington ammunition from in or

about October 2000 through on or about November 1, 2000; and (5) Count 17 for

being a convicted felon in possession of one or more rounds of several types of

ammunition on June 8, 2001. Specifically, with regard to Count 1, the jury

rejected the indictment’s charge that Phillips conspired to distribute fifty or more

grams of crack cocaine and convicted him of the lesser included offense.

       Pursuant to the U.S.S.G. § 2D1.1, the revised presentence investigation

report (“PSI”) assessed a base offense level of 32 based on the amount of drugs, 67

grams of crack cocaine, that the district court attributed to Phillips at sentencing.9

       9
         The PSI attributed the following drug quantities to Phillips: (1) the 6.6 grams of crack
cocaine that Yearby sold to a CI on November 29, 2000; (2) the 22.3 grams of crack cocaine that
Yearby and White sold to a CI on December 13, 2000; (3) the 11.4 grams of crack cocaine that
Yearby sold to a CI on December 15, 2000; (4) the 25.4 grams of crack cocaine that Yearby and
Cooper sold to a CI on January 12, 2001; (5) the .77 grams of crack cocaine that Phillips sold to

                                               14
The PSI also recommended a two-level increase for each of the following findings

made by the district court: (1) Phillips possessed a dangerous weapon during the

offense, § 2D1.1(b)(1);10 and (2) Phillips was an organizer or leader in the criminal

activity, U.S.S.G. § 3B1.1(c). The PSI concluded that Phillips qualified as an

armed career criminal, pursuant to § 4B1.4(a), and a career offender, pursuant to

§ 4B1.1(a). Nevertheless, because Phillips’s adjusted offense level already was 36,

these classifications did not increase his total offense level. The PSI noted that

Phillips had a criminal history category of VI based on each of the following

grounds: (1) Phillips had been assessed 14 criminal history points; and (2) Phillips

was an armed career criminal. Based on a total offense level of 36 and a criminal

history category of VI, the PSI calculated a guideline imprisonment range of 324 to

405 months’ imprisonment.

       Phillips objected to the PSI, arguing that the district court could not sentence

him based on acquitted conduct because the jury necessarily rejected the credibility

of the government’s witnesses, and the witnesses’ testimony was not supported by



a CI on April 6, 2001; (6) the .56 grams of crack cocaine that Black sold to Ghent on June 8,
2001; and (7) the .2 grams of powder cocaine that was recovered from Phillips at the time of his
arrest.
       10
          Several witnesses, including White, Cooper, and Yearby, testified that Phillips often
carried a gun with him. The police found a gun box during their search of Phillips’s townhouse
but did not find any guns. Nor did the police recover any guns from Phillips or his vehicle when
they arrested him on June 8, 2001. The indictment included several firearms offenses, and the
jury acquitted Phillips of all those counts.

                                               15
physical evidence. Phillips argued that his relevant conduct should not include

drug amounts prior to April 6, 2001, because the jury found that he entered the

conspiracy on that date. As for the offense level computation, Phillips argued that

he only could be held responsible for the .77 grams of crack cocaine he sold to the

CI because that was the only sale for which he was convicted. Phillips next

objected to the firearm enhancement because: (1) the jury acquitted him of the

firearms charges; and (2) ammunition does not constitute a dangerous weapon.

Phillips also objected to the role enhancement because the jury acquitted him in

relation to the activities of others. Finally, Phillips argued that because the jury’s

verdict supports a finding that he did not participate in the conspiracy until April 6,

2001, the dates of his prior offenses that were used to establish that he was an

armed career criminal and a career offender were not within the time-period of

countable offenses under § 4A1.2(e).

      After the government filed its response disputing Phillips’s arguments,

Phillips filed a motion to declare the sentencing scheme unconstitutional, arguing

that holding him accountable at sentencing for acquitted conduct violated the Fifth

and Sixth Amendments. Specifically, Phillips argued that, because the jury found

that his participation in the conspiracy was limited to five or less grams of crack

cocaine, the district court was limited to considering that amount of drugs in



                                           16
establishing his base offense level. Phillips also noted that, even though the jury

acquitted him of two counts of possession of a firearm by a convicted felon, the

PSI proposed enhancing his sentence for possession of firearms. The district court

denied Phillips’s motion, finding that acquitted conduct could be considered at

sentencing if the government proved it by a preponderance of the evidence.

      The district court conducted five days of sentencing hearings. Phillips

argued that the district court could not enhance his sentence based on acquitted

conduct because the jury necessarily determined that the witnesses, whose

testimony the government cited in support of the imposition of the sentencing

enhancements, were not credible. Phillips supported his argument that the

witnesses lacked credibility by calling White who testified that several government

witnesses communicated in jail in order to coordinate their testimony. Phillips

asserted that his base offense level should be 16, based on the amount of drugs that

were related to his convictions: (1) the .77 grams of crack cocaine that he sold to

Ghent on April 6, 2001; and (2) the .2 grams of powder cocaine that he possessed

when he was arrested on June 8, 2001.

      The government argued that the PSI properly attributed 67.03 grams of

crack cocaine and .2 grams of powder cocaine to Phillips. According to the

government, it proved the weights by a preponderance of the evidence based on the



                                          17
testimony regarding four sales of crack cocaine by Yearby to a CI, Phillips’s sale

of crack cocaine to a CI, Black’s sale of crack cocaine to Ghent, and Phillips’s

possession of powder cocaine at the time of his arrest. The district court agreed

that the government had established, by a preponderance of the evidence and based

on clear and convincing evidence, that Phillips was responsible for 67.03 grams of

crack cocaine and .2 grams of powder cocaine,11 resulting in Phillips having a base

offense level of 32.

       With respect to the § 924(e) enhancement, the government maintained that

the time-periods outlined in § 4A1.2 for counting prior convictions were

inapplicable to the determination of whether a defendant is an armed career

criminal under § 4B1.4. Phillips withdrew his argument that § 4B1.4 had a time

element. Thereafter, the district court found that Phillips was an armed career

criminal based on the convictions outlined by the government. The district court

further noted that Phillips had a criminal history category of VI under

§ 4B1.4(c)(2) because he was a member of a drug distribution conspiracy and had

provided ammunition and a firearm to Yearby in furtherance of the conspiracy.

The district court found that Phillips was subject to the § 851 enhancement,

       11
         The transcript incorrectly states that the district court held Phillips accountable for two
grams of powder cocaine. The district court, however, based its drug calculation on the
government’s contentions. The government argued that, in regards to powder cocaine, Phillips
should be held accountable for the .2 grams that the agents recovered from him at the time of his
arrest.

                                                 18
resulting in increased punishment under § 841.

      Phillips reiterated his objection to being classified as a career offender,

arguing that: (1) the time limits outlined in § 4A1.2(e) were applicable to the career

offender provision; (2) for him to be classified as a career offender using the time-

limits outlined in § 4A1.2(e), two of his prior qualifying felony convictions must

have occurred within ten years of his commission of the instant offense; (3) for

purposes of § 4A1.2(e), the date when he committed the instant offense was April

6, 2001, because the jury’s verdict supports a finding that he joined the conspiracy

on that date; and (4) he did not have two prior qualifying felony convictions within

ten years of April 6, 2001. The district court accepted the government’s argument

that Yearby’s and White’s testimony established that Phillips was involved in the

conspiracy in October 2000. Using this date, the district court determined that

Phillips was a career offender based on qualifying convictions from November

1990 and May 1994.

      The district court also found, by a preponderance of the reliable evidence

presented at trial, that Phillips possessed a firearm during and in relation to a drug

trafficking conspiracy. Over Phillips’s objection, the court ruled that he qualified

for a role enhancement, noting that the evidence at trial demonstrated that he was

in charge of 625 8th Street and used others to sell illegal narcotics for him. Based



                                           19
on the district court’s drug quantity calculation and its assessment of

§§ 2D1.1(b) and 3B1.1(c) enhancements, Phillips had a total offense level of 36.

      The district court stated that it was imposing a sentence at “the higher end of

the guideline range” of 324 to 405 months’ imprisonment and determined that a

sentence of 360 months’ imprisonment was appropriate based on the seriousness of

the offenses, Phillips’s criminal history, and the application of the armed career

criminal guideline. The district court initially sentenced Phillips to 360 months’

imprisonment on both Counts 1 and 9, 24 months’ imprisonment on Count 11, and

180 months’ imprisonment on both Counts 14 and 17, all to be served

concurrently. However, after the probation officer notified the court that its

sentence of 180 months’ imprisonment on Counts 14 and 17 was outside the

guideline range, the court amended its sentence with respect to each of those

counts to 360 months’ imprisonment to be served concurrently with the remaining

counts.

      Phillips filed post-trial motions seeking a new trial based on newly

discovered evidence and Brady violations, to declare §§ 922(g) and 924(e)

unconstitutional as applied, to declare Counts 14 and 17 multiplicitious, and to

acquit Phillips of the conspiracy count. The district court denied all the motions

but agreed to consolidate Counts 14 and 17. Phillips timely appealed, raising five



                                          20
issues: whether the district erred (1) by determining that sufficient evidence

supported Phillips’s conviction for conspiracy to distribute crack cocaine, (2) by

denying Phillips’s motion to declare 18 U.S.C. §§ 922(g) and 924(e)

unconstitutional as applied, (3) in denying Phillips’s motion for a new trial, (4) by

increasing Phillips’s sentence based on facts neither found by the jury nor admitted

by the defendant, and (5) in failing to dismiss either Count 14 or 17 based on

multiplicity. We reverse the district court’s holdings on Issues 4 and 5. In all

other respects, we affirm the district court.

                                     II. Discussion

1. Whether Sufficient Evidence Supported Phillips’s Conviction for Conspiracy to

Distribute Five or Less Grams of Crack Cocaine.

      On appeal, Phillips challenges the sufficiency of the evidence to support his

conviction for conspiracy to distribute five or less grams of crack cocaine in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) and § 846. Phillips contends that

the jury must have convicted him of the conspiracy because it believed that he

conspired with the CI in the April 6 transaction, the only sale for which Phillips

was convicted. Phillips supports his reasoning by showing that the jury acquitted

him of the indicted offenses that underlaid the conspiracy charge – i.e., the sales by

Yearby, White, Cooper, and Black, that the district court failed to instruct the jury



                                           21
that a defendant cannot conspire with a government agent, and that the jury

reduced the amount of drugs involved in the conspiracy from fifty grams or more

as listed in the indictment to five or less, which corresponds with the amount

involved in the April 6 transaction. According to Phillips, the only way the jury

could have convicted him of conspiracy is because it erroneously believed that he

conspired with the CI, a government agent, on April 6. Therefore, he contends that

sufficient evidence does not support his conviction.

      When we review a conviction for sufficiency of the evidence, “we apply a de

novo standard of review, but resolve all reasonable inferences in favor of the jury’s

verdict.” United States v. Pineiro, 389 F.3d 1359, 1367 (11th Cir. 2004). “The

evidence is sufficient so long as a reasonable trier of fact, choosing among

reasonable interpretations of the evidence, could find guilt beyond a reasonable

doubt.” Id. (citation omitted). We will uphold the jury’s verdict “unless no trier

of fact could have found guilt beyond a reasonable doubt.” United States v. Lyons,

53 F.3d 1198, 1202 (11th Cir. 1995) (citation omitted).

      Count One charges Phillips: “From at least as early as in or about December,

1999, the exact date being unknown to the Grand Jury, and continuing through on

or about June 8, 2001, in West Palm Beach, Palm Beach County, in the Southern

District of Florida, and elsewhere, the defendants, Elroy Phillips, a/k/a ‘86’ and



                                          22
‘6,’ and Ben Black, Jr., did knowingly and intentionally combine, conspire,

confederate, and agree with each other and with persons known and unknown to

the Grand Jury, to distribute a Schedule II controlled substance, that is fifty (50) or

more grams of a mixture and substance containing a detectable amount of cocaine

base, commonly known as ‘crack cocaine.’” In the special verdict, the jury

convicted Phillips of the conspiracy charged but determined that the conspiracy

was to distribute five or less grams of crack cocaine.

      We note that we doubt whether Phillips preserved his argument that the

district court erred by failing to instruct the jury that a defendant cannot conspire

with a government agent. Phillips’s argument fails, however, for several reasons.

First, the conspiracy as alleged by the government was broader than the counts for

which the jury acquitted Phillips. As alleged in the indictment, the conspiracy

dated back to 1999 and included Black and “persons known and unknown to the

Grand Jury.” The government presented extensive evidence showing that Phillips

conspired with Yearby, Cooper, White, Williams, Morley, Black, and others in

obtaining powder cocaine to convert into crack cocaine, manufacturing crack

cocaine, and distributing large quantities of crack cocaine over a period of several

years. Several of Phillips’s co-conspirators testified that they worked for Phillips

when they sold large quantities of crack cocaine from 625 8th Street to many



                                           23
individuals, not just the government agents. As the ultimate finder of fact, the jury

was free to accept some of the government’s evidence and reject other parts of the

government’s evidence. The extensive evidence the government presented left the

jury with many ways to conclude that Phillips conspired to distribute five or less

grams of crack cocaine without necessarily concluding that Phillips conspired with

the government agent on the April 6 transaction.

      Second, we have held on several occasions that each count in an indictment

is a separate count and the jury’s decision to acquit on one count does not have res

judicata effect on any separate count. United States v. Odom, 252 F.3d 1289, 1298

(11th Cir. 2001) (citing Dunn v. United States, 284 U.S. 390, 393 (1932)).

“Consistency in the verdict is not required.” Dunn, 284 U.S. at 393. In United

States v. Powell, the Supreme Court reaffirmed Dunn and upheld the defendant’s

conviction even though the jury acquitted her of possession with the intent to

distribute cocaine but convicted her of conspiracy to possess cocaine with intent to

distribute. 469 U.S. 57, 60 (1984). The case for upholding Phillips’s conviction is

at least as compelling as it was in Powell because, as noted, the government

presented extensive evidence of a conspiracy that went beyond the predicate

offenses for which the jury acquitted Phillips. Because we conclude a reasonable

trier of fact could have found Phillips guilty beyond a reasonable doubt, we affirm



                                          24
his conspiracy conviction.

2. Whether §§ 922(g) and 924(e) Are Constitutional As Applied to This Case

      Next, Phillips argues that 18 U.S.C. §§ 922(g) and 924(e) are

unconstitutional as applied to this case because they violate the Eighth Amendment

and the equal protection component of the Fifth Amendment’s Due Process Clause

and because Congress exceeded its authority under the Commerce Clause when it

prohibited the conduct for which the jury convicted Phillips.

      Title 18 U.S.C. § 922(g) states in pertinent part: “It shall be unlawful for any

person – (1) who has been convicted in any court of a crime punishable by

imprisonment for a term exceeding one year; . . . to ship or transport in interstate or

foreign commerce, or possess in or affecting commerce, any firearm or

ammunition; or to receive any firearm or ammunition which has been shipped or

transported in interstate or foreign commerce.” 18 U.S.C. § 922(g) (2003)

(emphasis added).

      Title 18 U.S.C. § 924(e) states: “In the case of a person who violates section

922(g) of this title and has three previous convictions by any court referred to in

section 922(g)(1) of this title for a violent felony or a serious drug offense, or both,

committed on occasions different from one another, such person shall be fined

under this title and imprisoned not less than fifteen years . . . .” 18 U.S.C. § 924(e)



                                           25
(2003).

      Phillips does not dispute that he committed the predicate offenses that made

him eligible for sentencing under §§ 922(g) and 924(e). Instead, Phillips contends

that the laws violate the Eighth Amendment and equal protection component of the

Fifth Amendment’s Due Process Clause because: (1) upon his release from Florida

state prison, the Florida Department of Corrections failed to notify him that federal

law bans the possession of ammunition by a convicted felon; and (2) punishing an

individual for possession of ammunition without proving that the person also

possessed a weapon that would make the bullets dangerous lacks a rational

relationship to a legitimate governmental purpose.

      We hold that Phillips’s Eighth Amendment argument must fail. Phillips’s

first argument fails because § 922(g) only requires that the defendant knowingly

possess the ammunition, not that he knows the possession is illegal. United States

v. Deleveaux, 205 F.3d 1292, 1298 (11th Cir. 2000). The indictment charged

Phillips with knowingly possessing the ammunition, and the jury determined that

the government proved that element. Therefore, the government satisfied its

burden on that issue.

      Phillips’s second argument fails because “[t]he Eighth Amendment . . .

contains a narrow proportionality principle that applies to noncapital sentences.”



                                          26
Ewing v. California, 538 U.S. 11, 20 (2003). In United States v. Lyons, we relied

on Ewing in upholding the conviction and sentence of a defendant, a convicted

felon, sentenced to 235 months’ imprisonment for possession of four .22 bullets.

403 F.3d 1248, 1256-57 (11th Cir. 2005). Even though a thirty-year sentence for

mere possession of ammunition may be greater than necessary to meet the goals of

punishment, the decision is for Congress in the first instance, and we cannot

conclude on our narrow review that the sentence here amounts to cruel and unusual

punishment.

      Phillips’s equal protection argument also must fail. First, Phillips has not

contended that the challenged provisions deserve greater scrutiny because they

target a protected class. Instead, he argues that the provisions single out certain

individuals because of their criminal history and target those individuals without

any legitimate governmental purpose. Convicted felons are not a protected class,

United States v. Jester, 139 F.3d 1168, 1171 (7th Cir. 1998), therefore, we analyze

Phillip’s claim to determine whether Congress had a rational basis in passing the

challenged provisions.

      Phillips contends that without a weapon to discharge the ammunition he

undisputedly possessed, the ammunition is not dangerous. Therefore, according to

Phillips, Congress’s decision to punish possession of ammunition by a convicted



                                          27
felon without also requiring that the convicted felon possess a firearm is irrational

and denies equal protection to convicted felons. We disagree. Just as Congress

could rationally decide to punish possession of a firearm by a convicted felon

without requiring possession of ammunition, Congress could also rationally decide

to punish possession of ammunition by a convicted felon without also requiring

possession of a firearm. Congress made a rational decision that certain individuals

should be required to separate themselves fully from certain wares common to the

criminal enterprise, and it is not for us to invalidate that decision.

      Phillips also argues that Congress exceeded its power under the Commerce

Clause when it prohibited the conduct for which he was convicted. The cases upon

which Phillips relies, however, were vacated in light of the Supreme Court’s recent

decision in Gonzalez v. Raich, 545 U.S. –, 125 S. Ct. 2195 (2005). Even though

this case deals with possession of ammunition, we find our § 922(g) precedent

dealing with convictions for possession of a firearm persuasive here, and we affirm

Phillips’s conviction.

      Under its Commerce Clause power, Congress can regulate those activities

that substantially affect interstate commerce. United States v. Lopez, 514 U.S. 549,

558-59 (1995). In Lopez, the Court invalidated a federal law prohibiting the

possession of a firearm within 1000 feet of a school. Id. at 549, 565. In United



                                            28
States v. McAllister, a case dealing with possession of a firearm in violation of

§ 922(g), we noted that the lack of a jurisdictional element requiring that the

defendant’s possession of the firearm affect interstate commerce was the principal

infirmity with the law in Lopez. 77 F.3d 387, 389-90 n.4 (11th Cir. 1996). Like

the portion of § 922(g) challenged in McAllister, the portion of § 922(g) applicable

here includes a specific jurisdictional element, ensuring that the possession

affected interstate commerce. The government alleged in the indictment that the

ammunition was possessed in connection with interstate commerce and presented

evidence that the ammunition in question was manufactured outside the state of

Florida and found at Phillips’s townhouse in Florida. The fact that the ammunition

previously traveled in interstate commerce is sufficient to establish the necessary

jurisdictional nexus, and despite Phillips’s argument to the contrary, “[w]here the

class of activities is regulated and that class is within the reach of federal powers,

the courts have no power ‘to excise, as trivial, individual instances’ of the class.”

Raich, 125 S. Ct. at 2209 (citing Perez v. United States, 402 U.S. 146, 154 (1971)).

Accordingly, we affirm.

3. Whether the District Court Erred in Denying Phillips’s Motions for a New Trial

and an Evidentiary Hearing

      Phillips contends that the district court erred in denying his motions for a



                                           29
new trial and an evidentiary hearing. According to Phillips, the district court

ignored his allegations that the government at least concealed, if not fabricated,

evidence dealing with the April 6 sale of crack cocaine from Phillips to a CI.

      As accounted earlier, WPB PD Agent Michael Ghent testified that on April

6, 2001, he and a CI went to 625 8th Street to make a controlled purchase of illegal

narcotics. According to Ghent, he was familiar with Phillips and the area

surrounding 625 8th Street because he had conducted surveillance of the area

beginning in January 2001 after numerous citizens’ complaints and information

from other officers that Apartment 2 at 625 8th Street was the source of large

amounts of illegal narcotics. During his surveillance, Ghent had observed

activities consistent with the distribution of illegal narcotics.

      When the CI and Ghent arrived, they saw Phillips, whom the CI identified as

86, leaning against a green truck with a license plate reading Trojan P.12 Phillips

was standing across the street from 625 8th Street; the CI and Ghent approached

Phillips, and the CI requested a “50 pack” from Phillips. Phillips then went into

Apartment 2 at 625 8th Street, and when he returned, he handed the CI five green

baggies, each containing one rock of crack cocaine, in exchange for $50. The CI

immediately handed the drugs to Ghent, and the CI and Ghent left the area. Ghent



      12
           In his trial testimony, Ghent did not explain how he knew Phillips’s real name.

                                                 30
testified that he had seen Phillips in the area previously and that on April 6, he

stood within a few feet of Phillips as Phillips handed the drugs to the CI.

      When Phillips’s counsel cross examined Ghent, she had a copy of Ghent’s

report from the April 6 transaction. The cover sheet to Ghent’s report identified

Phillips as having a dark complexion, and Ghent conceded that the cover sheet to

his report dealing with the April 24 transaction with Black identified Black as

having a dark complexion. Ghent also conceded that his report did not describe

Phillips’s physical features or note that Phillips was leaning on a green truck with a

license plate reading Trojan P, but that his report on the April 24 transaction

described Black in much greater detail. According to Ghent, Phillips was not the

specific target of his investigation at 625 8th Street; his purpose in investigating the

location was to determine who was selling illegal narcotics from that location.

      On redirect, Ghent testified that he had already identified Phillips as of April

6 and had not identified Black as of April 24, thereby explaining the difference in

his police reports. According to Ghent, additional information to identify Phillips

was unnecessary because Phillips’s identity was not in question. Furthermore,

Ghent reaffirmed his statement from the cover sheet attached to the April 6 report

that he believes that Phillips has a dark complexion. Finally, Ghent testified that

although he was a part of the federal investigation, the DEA did not provide any



                                           31
support for his investigation of 625 8th Street from January to April 2001.

       In closing, Phillips, through counsel, suggested that reasonable doubt existed

as to whether the CI made the April 6 purchase from Phillips or Black. The jury

convicted Phillips of that charge, obviously rejecting Phillips’s argument.

       Phillips filed a pro se motion requesting a new trial based on newly

discovered evidence and a Brady violation.13 First, Phillips alleged that his

attorney had made a pre-trial request for all police reports associated with his case;

the government provided several reports but did not provide Ghent’s report from

the April 6 transaction. Furthermore, before Phillips’s trial, a private investigator

(“PI”) searched the WPB PD database for Phillips’s police records and contacts

and did not discover any reports from Ghent or a report for the April 6 transaction.

A letter from the WPB PD dated December 24, 2001 confirmed that the database

did not contain an April 6 report. Just before Ghent testified on December 16,

2002, the government provided an unsigned copy of Ghent’s April 6 report

detailing an alleged drug sale by Phillips to a CI. Phillips also alleged that no

supervisor reviewed the report.

       Following Phillips’s conviction, another PI conducted a search of the WPB


       13
          In his motion, Phillips also argued that the government violated Brady by failing to
disclose the entirety of Yearby’s and White’s agreements with the government. The district
court rejected Phillips’s argument, and Phillips did not appeal the district court’s ruling on that
issue.

                                                 32
PD’s police records database. This time, the PI tried to locate the April 6 report

using the case number that appears on the report. A records clerk at the WPB PD

was unable to locate the report. The WPB PD’s Central Records Manager, Sandy

LaRue, told the PI that the records department never received the report. When

LaRue conducted an additional search, she determined that the case number

associated with the April 6 report was generated by Ghent on March 28, 2001,

more than a week prior to the drug sale from Phillips to the CI.

      In an affidavit attached to Phillips’s motion for a new trial, the PI stated that

he spoke with Lieutenant Bill Amason, Ghent’s supervisor as of July 2003.14

Amason could not explain the procedure for providing reports to the records

department but said that the report may not have been logged into the database

because the investigation was turned over to the U.S. Attorney’s Office. Amason

told the PI that his practice was to initiate a case number for an ongoing

investigation and that a report that went to the DEA or U.S. Attorney’s Office

would not be logged into the system. Finally, Amason said that it is common

practice for an agent to initial his reports and have a supervisor review them but

noted that that practice does not always occur.

      Phillips further alleged that several government witnesses testified that the



      14
           Amason was not Ghent’s supervisor as of April 6, 2001.

                                               33
investigation into Phillips did not begin until at least April 11, 2001, the date the

DEA arrested several of his alleged co-conspirators and several days before the

alleged deal on April 6. WPB PD Agent Brian Kapper testified that based on

information he received on April 11 from a co-worker, Agent Emmons, he and

Emmons conducted “trash pulls” at Phillips’s townhouse on April 22, April 25,

April 29, May 2, and May 9. Kapper also testified that he provided assistance to

Ghent at least once when Ghent made a controlled buy at 625 8th Street; Kapper

stated that he used a recording device to track Ghent and ensure Ghent’s safety

during the transaction. Furthermore, Phillips contended that the federal

investigation into his alleged involvement in distributing drugs at 625 8th Street

did not begin until at least April 11, 2001. Therefore, Ghent had no reason to

withhold the April 6 report.

      Finally, Phillips asserted that the drug evidence obtained from the April 6

transaction was listed in the WPB PD Records under a case number associated

with Ben Black. According to Phillips, this supports his theory at trial that on

April 6, the CI and Ghent dealt with Black. Phillips believes that this evidence

alone allows him to meet the standard to obtain a new trial. Phillips goes even

further by asserting that the newly discovered evidence taken as a whole shows

that Ghent fabricated the report to frame Phillips and that if the jury had the



                                           34
opportunity to consider all the evidence, the jury would not have convicted Phillips

of the conspiracy in Count One or the substantive offense in Count Nine.15

       The government’s response included an affidavit filed by Ghent explaining

that he obtained the case number listed on the April 6 report on March 28, 2001,

following complaints from citizens about the alleged sale of illegal narcotics at 625

8th Street. Kapper purportedly told Ghent on March 28 that Phillips allegedly

controlled 625 8th Street and described Phillips’s truck. Ghent claimed that he

then reviewed photos of Phillips. Ghent stated that he and the CI drove to 625 8th

Street on March 28 to make a controlled buy but were not able to do so. Ghent

confirmed that he kept the same case number and evidence submission form he

obtained on March 28 when he documented the April 6 transaction. According to

Ghent’s affidavit, he did not file the April 6 report with the central records division

because the report was part of an ongoing investigation.

       The government also contended that Ghent’s report, investigative fund

expenditures, and informant contact report for April 6, 2001 corroborated his

affidavit. The government argued that Phillips’s reliance on a printout that showed

that the drug evidence obtained from the April 6 report was listed under a case

       15
          Phillips also argues that the evidence that allegedly shows that Ghent fabricated the
April 6 report provides further support to his argument that the government planted evidence in
his townhouse during the June 8 search. Presumably, Phillips believes that if the jury had
considered this evidence, the jury would probably have reached a different result on Counts 14
and 17.

                                               35
number associated with Black was misplaced because the printout was replete with

mistakes. Furthermore, Ghent identified Phillips at trial, and when Black testified,

the jury had the opportunity to compare Black and Phillips.

      The district court determined that it did not need to hold an evidentiary

hearing to examine Phillips’s allegations deeper and decided based on the trial

testimony and the parties’ submissions that Ghent’s testimony was truthful and

consistent with his affidavit and testimony from other government witnesses. The

district court also accepted the government’s argument why the report did not

appear in the WPB PD’s central records and why the case number was generated

more than a week before the April 6 transaction. Finally, the district court held

that Phillips could not obtain a new trial under Rule 33 because Phillips failed to

show that with due care the evidence was discoverable only after trial and because

the evidence was, at best, impeachment evidence.

      A. Whether the District Court Erred in Denying Phillips’s Motion for a New

      Trial Based on Newly Discovered Evidence

      To establish a claim for a new trial under Federal Rule of Criminal

Procedure 33 based on newly discovered evidence, the defendant must show that:

(1) the evidence was in fact discovered after trial; (2) the defendant exercised due

care to discover the evidence; (3) the evidence was not merely cumulative or



                                          36
impeaching; (4) the evidence was material; and (5) the evidence was of such a

nature that a new trial would probably produce a new result. United States v.

Bollinger, 796 F.2d 1394, 1401 (11th Cir. 1986). In determining whether to grant

the motion, the district court should use “great caution.” United States v. Jernigan,

341 F.3d 1273, 1287 (11th Cir. 2003). We review the district court’s ruling for an

abuse of discretion. United States v. Thompson, 422 F.3d 1285, 1294-95 (11th Cir.

2005).

         We agree with the district court that Phillips has failed to meet the standard

for a new trial under Rule 33. First, Phillips cannot establish that he only

discovered the piece of evidence most critical to his claim after trial. Phillips

admits that he received a copy of the April 6 report the day Ghent took the stand.

At that point, Phillips knew that the WPB PD’s central records did not include a

copy of this report. Phillips then had the opportunity to ask Ghent why the report

was not in the records. Phillips also could have asked for a continuance to conduct

the investigation he waited more than six months after his conviction to conduct.16

         More important, Phillips cannot meet his ultimate burden of establishing that


         16
          Although we do not consider this as part of our analysis, we note that Phillips likely
cannot meet the second step of the test because with due care, he could have discovered the
report before the day on which Ghent testified. DEA Agent Enockson’s affidavit associated with
the search warrant for Phillips’s townhouse notes the DEA’s reliance on a controlled buy by
Ghent and a CI from Phillips on April 6. This information should have caused Phillips to pursue
information from the April 6 transaction further when the government did not provide him with a
report during discovery.

                                              37
the evidence here is of such a nature that it would probably produce a new result.

The overwhelming evidence establishes that Ghent and the CI went to 625 8th

Street on April 6, 2001 and purchased crack cocaine from Phillips. Phillips’s PI’s

affidavit notes a conversation with Lieutenant Amason, Ghent’s supervisor at the

time of Phillips’s motion for a new trial, in which Amason told the PI that

Amason’s practice is that a report that goes to the U.S. Attorney’s Office or DEA

is not recorded into the WPB PD’s central records. Although Amason was not

Ghent’s supervisor as of April 6, 2001, Phillips has not argued that the WPB PD’s

practice differed then. Furthermore, Ghent’s explanation for initiating a case

number on March 28, 2001 and continuing to use that number for the April 6

transaction is persuasive.

      Phillips wants to use the newly discovered evidence to show that because

several witnesses testified that the investigation into Phillips did not begin until at

least April 11, 2001, the CI could not have purchased crack cocaine from Phillips

on April 6. In Phillips’s estimation, this means that Ghent must have confused

Black for Phillips or, worse yet, entirely fabricated the April 6 report and other

evidence to frame Phillips. Although Kapper’s testimony shows that the

investigation into Phillips did not begin until at least April 11, Ghent testified that

he was not investigating Phillips directly when he went to 625 8th Street on April



                                           38
6. On cross examination, Phillips tried to force Ghent to concede that he was

targeting Phillips when Ghent went to 625 8th Street on April 6. Ghent refused to

concede the point, instead reiterating that he was investigating 625 8th Street based

on several complaints regarding the distribution of illegal narcotics from that

location. After investigating the location and seeing Phillips in the area for several

months, Ghent wanted to make a series of controlled buys to determine who was in

charge at 625 8th Street. Although Ghent had received information that Phillips

ran 625 8th Street, Phillips was not the target of Ghent’s investigation as of April

6.17 Consequently, Ghent’s testimony that he and a CI purchased crack cocaine

from Phillips at 625 8th Street on April 6 is entirely consistent with other

testimony that the investigation of Phillips did not begin until at least April 11.

       Finally, the fact that the evidence from the April 6 transaction was logged

under the case number for Black does not affect our view. The printout to which

Phillips cited is replete with mistakes, thus it does not lend credence to Phillips’s



       17
          Phillips also contends that Ghent’s testimony that he was conducting surveillance in
the area of 625 8th Street since January is inconsistent with Ghent’s affidavit in which he stated
that Kapper told him on March 28 that Phillips controlled 625 8th Street, prompting Kapper to
describe Phillips’s truck and Ghent to examine photos of Phillips. Phillips believes that if Ghent
were conducting surveillance in the area since January and Phillips were in the area as the
government alleges, Ghent would have known who Phillips was by March 28. Ghent’s two
statements are consistent, however, because it is perfectly reasonable for Ghent to have
conducted undercover surveillance since January without learning Phillips’s name. Ghent’s
conversation with Kapper was a way for Ghent to obtain more information about the area in
which he was conducting surveillance.

                                                39
argument that Ghent either fabricated the April 6 report or mistook Black for

Phillips because the printout is an unreliable source of information.

      Phillips’s arguments, coupled with the testimony from trial, do not establish

that the jury would probably have reached a different result if Phillips had an

opportunity to present this “new” evidence at trial. Therefore, we hold that the

district court did not abuse its discretion in denying Phillips’s motion.

      B. Whether the District Court Erred in Denying Phillips’s Motion for a New

      Trial Based on a Brady Violation

      To establish a claim for a new trial based on a Brady violation, the defendant

must show that: (1) the prosecution suppressed evidence; (2) the evidence

suppressed was favorable to the defendant or exculpatory; and (3) the evidence

suppressed was material to the issues at trial. United States v. Burroughs, 830 F.2d

1574, 1577 (11th Cir. 1987) (citing Brady v. Maryland, 373 U.S. 83 (1963)).

“Materiality” requires a finding that, had the evidence been disclosed to the

defense, a reasonable probability exists that the outcome of the proceedings would

have been different. Id. at 1578. A “reasonable probability” is one “sufficient to

undermine confidence” in the result. Id. (citation omitted). We review the district

court’s ruling for an abuse of discretion. United States v. Vallejo, 297 F.3d 1154,

1163 (11th Cir. 2002).



                                          40
      First, we note that Phillips has not alleged that the government suppressed

any evidence. Albeit the government provided the April 6 report late, but by

providing the report, the government destroyed Phillips’s argument that it

suppressed evidence. Nevertheless, even assuming that Phillips can satisfy the first

step, the materiality inquiry under the Brady test is substantially similar to the final

step of the Rule 33 test. Having determined that Phillips cannot meet the final step

of the Rule 33 test, we conclude based on the same reasoning that there is not a

reasonable probability that the outcome of the proceedings would have been

different if Phillips had been able to present all his evidence. Therefore, the district

court did not abuse its discretion in denying the motion for new trial based on an

alleged Brady violation.

      C. Whether the District Court Erred in Denying Phillips’s Motion for an

      Evidentiary Hearing

      Whether to hold an evidentiary hearing on a motion for new trial is a

decision within the district court’s sound discretion. United States v. Fernandez,

136 F.3d 1434, 1438 (11th Cir. 1998). “The acumen gained by a trial judge over

the course of the proceedings [makes her] well qualified to rule on the basis of

affidavits without a hearing.” United States v. Schlei, 122 F.3d 944, 994 (11th Cir.

1997) (quoting United States v. Hamilton, 559 F.2d 1370, 1373-74 (5th Cir. 1977)



                                           41
(“Where evidentiary hearings are ordered, it is because of certain unique situations

typically involving allegations of jury tampering, prosecutorial misconduct, or

third party confession.”)).

       Fully acknowledging that whether to grant an evidentiary hearing and

whether to grant a motion for new trial are separate questions, we nevertheless

conclude that the district court did not abuse its discretion in denying Phillips’s

motion for an evidentiary hearing. This case differs from United States v. Culliver,

17 F.3d 349 (11th Cir. 1994) and United States v. Gates, 10 F.3d 765 (11th Cir.

1993), the two cases that Phillips cites in support of his claim.

       Culliver involved the district court granting a motion for new trial without

an evidentiary hearing to explore the validity of a witness’s affidavit recanting his

trial testimony. Culliver, 17 F.3d at 349. In that case, the witness and the

defendant were formerly involved in a tempestuous relationship in which each

often asked to have the other arrested only to drop the charges later. Id. at 350.

Under those circumstances, the government rightly questioned the witness’s

motives and the validity of the affidavit, and we held that the district court erred in

denying the government’s motion for an evidentiary hearing. Id. at 350-51.

       In Gates, following the defendant’s conviction, a co-defendant, who had not

testified at their joint trial, signed an affidavit listing those involved in the charged



                                            42
bank robberies and stating that Gates was not involved. Gates, 10 F.3d at 767 n.1.

The district court denied Gates’s motion for a new trial without first conducting an

evidentiary hearing. Id. at 768. We acknowledged that post-trial exculpatory

statements by convicted co-defendants must be viewed with caution but held that

the district court erred in denying the defendant’s motion without first conducting

an evidentiary hearing. Id.

      Phillips’s motion differs significantly from those in Culliver and Gates.

This case does not involve a “unique situation,” such as a key witness recanting his

testimony or a non-testifying co-defendant later exonerating his alleged co-

conspirator, in which the district court should have deviated from its usual

procedure of not conducting an evidentiary hearing. Instead, in this case, the

district court had the opportunity during trial to analyze the credibility of the

witnesses that Phillips tried to impugn. To the extent that Phillips tried to assail

the witnesses’ credibility in light of the new allegations that Ghent fabricated his

April 6 report, the district court determined based on the trial testimony and the

documentation that the parties submitted that Phillips’s contentions lacked

sufficient support to warrant an evidentiary hearing. The district court was highly

familiar with the testimony of the government’s witnesses, and its order

demonstrates a thorough grasp and cogent analysis of Phillips’s allegations. Under



                                           43
these circumstances, we conclude that the district court did not abuse its discretion

in denying Phillip’s motion for an evidentiary hearing.

4. Whether the District Court Erred by Increasing Phillips’s Sentence Based on

Facts Neither Found by the Jury nor Admitted by the Defendant

      Phillips argues that in light of United States v. Booker, which was decided

after Phillips was sentenced, the district court erred in: (1) denying his motion to

declare the guidelines unconstitutional; (2) treating the guidelines as mandatory;

and (3) enhancing his sentence based on factual findings that were contrary to

those found by the jury. Specifically, Phillips alleges that the district court made

four unconstitutional sentencing decisions. First, the court attributed 67.03 grams

of crack cocaine and .2 grams of powder cocaine to him, even though the jury

convicted him of conspiring to distribute five or less grams of crack cocaine and of

possessing .2 grams of powder cocaine. Second, although the jury acquitted him

of all the firearms charges, the district court enhanced his base offense level for

possessing a firearm during and in relation to a drug trafficking crime. Third, the

district court’s decision to enhance his sentence based on its finding that he was the

organizer or manager of the conspiracy was erroneous because the jury acquitted

him of the charges that involved sales by White, Williams, Yearby, Cooper, and

Black. Fourth, the district court improperly applied the armed career criminal



                                          44
enhancement because the court, in determining that his prior convictions were

within the time-period outlined in § 4A1.2, used October 2000 as the date when his

involvement in the conspiracy began even though the jury, by acquitting him of the

earlier charges, necessarily found that his involvement in the conspiracy began on

April 6, 2001.

      In Booker, the Supreme Court extended to the federal sentencing its earlier

holding from Apprendi v. New Jersey, in which the Court held that “[a]ny fact

(other than a prior conviction) which is necessary to support a sentence exceeding

the maximum authorized by the facts established by a plea of guilty or a jury

verdict must be admitted by the defendant or proved to a jury beyond a reasonable

doubt.” United States v. Booker, 543 U.S. 220, 244 (2005) (citing Apprendi v. New

Jersey, 530 U.S. 466, 489-90 (2000)). To remedy the unconstitutionality of the

guidelines, the Booker Court excised 18 U.S.C. § 3553(b)(1), which generally

requires a sentence within the guidelines range, and 18 U.S.C. § 3742(e), which

establishes the standards of review on appeal. Id. at 245-46. The practical effect

of the Booker decision was to render the guidelines advisory. Id. at 246.

      We have recognized two distinct forms of Booker error: (1) constitutional

Booker error, which results from using extra-verdict facts to enhance the

defendant’s sentence; and (2) statutory Booker error, which results from applying



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the guidelines as mandatory instead of as advisory. United States v. York, 428 F.3d

1325, 1335 (11th Cir. 2005). Because we find that the district court committed

constitutional Booker error, we do not address any claims of statutory Booker error.

      As an initial matter, however, we reject Phillips’s argument that the district

court’s application of the armed career criminal enhancement violated Booker

because the district court used October 2000 as the date when his involvement in

the conspiracy began. Application Note 1 to § 4B1.4 states that the time-periods

for counting sentences under § 4A1.2 are inapplicable to the determination of

whether a defendant is subject to an enhanced sentence under § 924(e). U.S.S.G.

§ 4B1.4, cmt. n.1. Furthermore, although the district court found that Phillips was

an armed career criminal, his total offense level did not include this enhancement

because Phillips’s total offense level was 36 using the district court’s drug quantity

calculation and its assessment of the §§ 2D1.1(b) and 3B1.1(c) enhancements.

      The district court committed constitutional Booker error when it enhanced

Phillips’s sentence based on facts not found by the jury, namely the amount of

drugs Phillips distributed, Phillips’s possession of a firearm during and in relation

to a drug trafficking crime, and Phillips’s alleged role in the offenses. At his

sentencing hearing, Phillips asserted that the district court’s use of extra-verdict

facts to enhance his sentence violated the Fifth and Sixth Amendment. Because



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Phillips preserved the argument, we review the issue de novo and require the

government to prove that the error was harmless. United States v. Paz, 405 F.3d

946, 948 (11th Cir. 2005). The government meets its burden if it can demonstrate,

beyond a reasonable doubt, that the error did not contribute to the defendant’s

ultimate sentence. Id. (citations omitted)

      The jury convicted Phillips of three drug charges: (1) conspiring to distribute

five or less grams of crack cocaine; (2) distributing a detectable amount of crack

cocaine on or about April 6, 2001; and (3) possessing a detectable amount of

powder cocaine on or about June 8, 2001. Based on the evidence, the April 6

transaction involved .77 grams of crack cocaine, and the June 8 possession

involved .2 grams of powder cocaine. The jury’s verdict supports a conclusion that

the amount of drugs attributable to Phillips was five or less grams of crack cocaine

and .2 grams of powder cocaine. Based on these amounts, Phillips’s maximum

offense level was 26. By considering extra-verdict facts, the district court

attributed 67.03 grams of crack cocaine and .2 grams of power cocaine to Phillips

and gave him a base offense level of 32. Furthermore, although the jury acquitted

Phillips of the firearms charges, the district court enhanced Phillips’s sentence by

two levels based on its finding that he possessed a firearm during and in relation to

a drug trafficking conspiracy. Finally, none of the jury’s findings supported the



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district court’s decision to enhance Phillip’s sentence for being a leader or

organizer.

      The government cannot meet its burden to demonstrate, beyond a reasonable

doubt, that the errors complained of did not contribute to Phillips’s sentence. If the

court had not considered the extra-verdict facts, Phillips’s sentencing range would

have been significantly lower. The court’s Booker error plainly contributed to the

sentence that the district court ultimately imposed. Therefore, we vacate Phillips’s

sentence and remand to the district court for resentencing.

5. Whether the District Court Erred in Failing to Dismiss Either Count 14 or 17

Based on Multiplicity

      Phillips argues that Counts 14 and 17 are multiplicitous and that we should

either dismiss one count or vacate the sentences and remand to the district court for

resentencing. The district court did not decide whether the claims are

multiplicitous. Instead, the court agreed to merge the counts, gave Phillips thirty

years’ imprisonment and a $100 assessment for each count, and ran the sentences

concurrently.

      The government did not cross appeal the district court’s decision to merge

Counts 14 and 17. Therefore, we are bound by the district court’s ruling. By

imposing two $100 assessments, however, the district court failed to merge the



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sentences properly. Although we do not decide whether Counts 14 and 17 are

multiplicitous, we require the court upon resentencing to properly merge Counts 14

and 17.

                                   III. Conclusion

       For the foregoing reasons, we remand Issues 4 and 5 to the district court for

further consideration in light of this opinion. In all other respects, we affirm the

district court.




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