     Case: 14-30434    Document: 00513580355   Page: 1   Date Filed: 07/06/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                No. 14-30434
                              c/w No. 14-30865
                                                                United States Court of Appeals
                                                                         Fifth Circuit

                             Summary Calendar                          FILED
                                                                    July 6, 2016
                                                                  Lyle W. Cayce
UNITED STATES OF AMERICA,                                              Clerk

                                         Plaintiff-Appellee

v.

GRANSIHI DEON MIMS, also known as Granshi; ANTONIO DEMETRIOUS
FURLOW, also known as “T”; JECARLOS MONTRAE CARTER, also known
as JeCarlos Carter, also known as Champ,

                                         Defendants-Appellants

Cons. w/No. 14-30865

UNITED STATES OF AMERICA,

                                         Plaintiff - Appellee

v.

AUBURN THOMAS,
                                         Defendant – Appellant


                Appeals from the United States District Court
                    for the Western District of Louisiana
                          USDC No. 5:10-CR-230-6
                          USDC No. 5:10-CR-230-2
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                                     No. 14-30434
                                   c/w No. 14-30865
Before DAVIS, JONES, and GRAVES, Circuit Judges.
PER CURIAM: *
       JeCarlos Montrae Carter, Antonio Demetrious Furlow, Gransihi Deon
Mims, and Auburn Thomas appeal the prison sentences they received upon
resentencing after they were convicted of various drug counts arising from
their roles in a cocaine distribution conspiracy. Carter is proceeding pro se on
appeal, and Furlow, Mims, and Thomas are represented by appointed counsel.
The parties did not preserve their arguments in the district court, and so this
court’s review is for plain error only. See United States v. Henao-Melo, 591
F.3d 798, 801 (5th Cir. 2009).
       When this case was originally before this court, we determined that the
evidence presented at trial did not support a finding that the conspiracy
involved at least five kilograms of cocaine as found by the jury but concluded
that the evidence did support a finding that the conspiracy involved 500 grams
or more of the drug. United States v. Daniels, 723 F.3d 562, 571-72 (5th Cir.),
reh’g granted in part and denied in part, 729 F.3d 496 (5th Cir. 2013). We thus
vacated the defendants’ sentences and remanded for resentencing under 21
U.S.C. § 841(b)(1)(B)(ii). Daniels, 723 F.3d at 574; see Daniels, 729 F.3d at 496
(vacating, on rehearing, the defendants’ sentences on all counts and remanding
for resentencing). At resentencing, each defendant entered into a stipulation
acknowledging that he was responsible for 3.5 to 5 kilograms of cocaine, and
Carter further agreed to a leadership role enhancement to his offense level. In
accordance with their stipulations, Carter received a 240-month prison term,




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.



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Furlow and Mims received statutory mandatory minimum prison sentence of
120 months, and Thomas received a 97-month prison term.
      Carter argues that his stipulation was coerced, involuntary, and made
under duress, contending that he did not understand the consequences of the
stipulation. However, the record does not support Carter’s assertions. The
district court took care to ensure that Carter understood that his stipulation
covered the entire guidelines calculation, including the 3.5 to 5 kilogram drug
quantity and leadership enhancement, and that by entering into the
stipulation, he waived his right to a hearing to determine drug quantity.
Carter also agreed to the applicable guidelines range, and, indeed, to the
precise prison sentence that he received. Carter’s “[s]olemn declarations in
open court carry a strong presumption of verity.” Blackledge v. Allison, 431
U.S. 63, 74 (1977). Moreover, Carter consulted with his attorney regarding the
stipulations both before and during the resentencing hearing.
      To the extent that Carter faults the prosecutors for representing that in
the absence of a stipulation, they would put forward evidence at the
resentencing hearing that could lead the court to find that Carter was
responsible for a larger quantity of drugs, this was not improper.            At
sentencing, the district court is permitted to take into account any reliable
evidence to determine the drug quantity by a preponderance of the evidence
and may find that the quantity that the defendant is responsible for is greater
than that proved at trial. See United States v. Hinojosa, 749 F.3d 407, 415 (5th
Cir. 2014).   As for Carter’s claims that his counsel rendered ineffective
assistance, the record is not sufficiently developed to allow us to make a fair
evaluation of those claims; we therefore decline to consider them without
prejudice to collateral review. See United States v. Isgar, 739 F.3d 829, 841
(5th Cir. 2014). Accordingly, Carter has not established that the district court



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committed any error, plain or otherwise, by accepting an involuntary or coerced
stipulation.
      Invoking United States v. Alleyne, 133 S. Ct. 2151 (2013), Carter also
argues that he should not have been resentenced under § 841(b)(1)(B)(ii) based
on this court’s determination, rather than a jury finding, that the conspiracy
involved 500 grams or more of cocaine. In Carter’s first appeal, we determined
that, though the evidence did not support a finding beyond a reasonable doubt
that the conspiracy involved five kilograms or more of cocaine, it did support a
finding that the conspiracy involved 500 grams or more of the drug. See
Daniels, 723 F.3d at 570-74.        We acknowledged the Supreme Court’s
admonition in Alleyne that ‘“when a finding of fact alters the legally prescribed
punishment so as to aggravate it, the fact necessarily forms a constituent part
of a new offense and must be submitted to the jury,’” but determined that it
was appropriate to order resentencing because the jury’s finding that the
conspiracy involved a larger drug quantity encompassed a finding that it
involved the smaller quantity. Id. at 574 (quoting Alleyne, 133 S. Ct. at 2162).
Accordingly, the law-of-the-case doctrine, under which this court may not
reexamine an issue decided in an earlier appeal, United States v. Lee, 358 F.3d
315, 320 (5th Cir. 2004), as well as the rule that one panel of this court may
not overturn the decision of a prior panel unless there has been an intervening
change in the law, United States v. Traxler, 764 F.3d 486, 489 (5th Cir. 2014),
foreclose this argument.
      Next, Carter faults the district court for going outside of this court’s
mandate by resentencing him based on a drug quantity of 3.5 to 5 kilograms of
cocaine, taking into account additional evidence of drug quantity not raised in
the first sentencing, and permitting relitigation of the leadership role
enhancement. The first time this case was before this court, we determined



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only that the evidence presented at trial did not support a finding that the
conspiracy involved five kilograms or more of cocaine and remanded for
resentencing; we did not determine, for sentencing purposes, the drug quantity
that Carter was responsible for nor did we determine whether he was an
organizer or leader of the conspiracy. See Daniels, 723 F.3d at 574. The
mandate rule is a “specific application” of the law-of-the-case doctrine that
compels the district court on remand to comply with this court’s dictates and
prohibits it from relitigating issues this court decided. Lee, 358 F.3d at 321
(internal quotation marks and citation omitted). The district court did not
violate this rule by taking into account the total drug quantity Carter was
responsible for and his role as a leader in the conspiracy. Indeed, it was
required to consider facts outside of those presented at trial. See United States
v. Elizondo, 475 F.3d 692, 696 (5th Cir. 2007). It could not have resentenced
Carter without considering the Guidelines relating to relevant conduct and his
role in the offense. See Gall v. United States, 552 U.S. 38, 51 (2007) (explaining
that before imposing sentence, the district court must first properly calculate
the guidelines range); Elizondo, 475 F.3d at 698. Accordingly, Carter has not
established that the district court committed any error in taking account of the
facts that it considered at sentencing.
      All four defendants argue that the district court erred in basing their
sentences solely on their stipulations regarding drug quantity, contending that
no evidence in the record supported a finding that they were each responsible
for 3.5 to 5 kilograms of cocaine. Under Fifth Circuit law, factual disputes,
such as drug quantity, that the district court could have resolved upon a timely
objection at sentencing can never constitute plain error. See United States v.
Claiborne, 676 F.3d 434, 438 (5th Cir. 2012); United States v. Pofahl, 990 F.2d
1456, 1479 (5th Cir. 1993). In any event, sentencing stipulations are valid if



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they are informed and uncoerced regardless whether they are factually sound.
Libretti v. United States, 516 U.S. 29, 42 (1995). Furlow, Mims, and Thomas
do not argue that their stipulations were coerced or uninformed, and, as we
have already explained, the record does not support Carter’s argument that he
was coerced into entering into the stipulation or that his stipulation was
involuntary. Accordingly, the district committed no error relying on them.
      Furlow and Mims further argue that the statutory mandatory minimum
penalty does not apply to them because there was insufficient evidence to
establish that they were responsible for a quantity of cocaine sufficient to
trigger the minimum. However, the 3.5 to 5 kilograms of cocaine that they
stipulated was reasonably foreseeable to them was sufficient to trigger the 10-
year statutory minimum. See § 841(b)(1)(B)(ii).
      Mims additionally faults the district court for failing to make a finding
as to the drug quantity involved in the cocaine possession count of which he
was convicted. Even if Mims could establish plain error despite his failure to
object in the district court, which he cannot, see Claiborne, 676 F.3d at 438;
Pofahl, 990 F.2d at 1479, he has not explained, much less established, how, in
light of his stipulation, the absence of a drug quantity finding on the possession
count affected his substantial rights. See United States v. Williams, 602 F.3d
313, 318 (5th Cir. 2010).
      Finally, Carter contends that the district court did not make findings on
disputed matters as required by Rule 32 of the Federal Rules of Criminal
Procedure, that he should have been held responsible for only the drugs that
were connected to him at trial, and that there was no reliable evidence that he
was a leader in the conspiracy. By entering into an uncoerced and voluntary
stipulation that he was responsible for 3.5 to 5 kilograms of cocaine and had a
leadership role in the offense and by acknowledging that his stipulation mooted



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his objections to the presentence report, he has waived these arguments. See
Libretti, 516 U.S. at 42; see also United States v. Olano, 507 U.S. 725, 733
(1993) (explaining that waiver is “the intentional relinquishment or
abandonment of a known right” (internal quotation marks and citation
omitted)).
      The district court’s judgments are AFFIRMED.




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