     Case: 13-31287    Document: 00513260065   Page: 1   Date Filed: 11/05/2015




                      REVISED NOVEMBER 5, 2015

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

                                No. 13-31287                           FILED
                                                                 October 15, 2015
                                                                  Lyle W. Cayce
UNITED STATES OF AMERICA,                                              Clerk

                                          Plaintiff–Appellee,
v.

CLARENCE HAINES, also known as Knowledge Haines; RAYMOND
PORTER, also known as T. Porter; JOSE ITURRES–BONILLA,

                                          Defendants–Appellants.




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


Before KING, SMITH, and ELROD, Circuit Judges.
JENNIFER WALKER ELROD:
      Defendants-Appellants Clarence Haines, Raymond Porter, and Jose
Iturres-Bonilla were charged with one count of conspiracy to possess with
intent to distribute one kilogram or more of heroin and one count each of using
a communication facility in facilitating the commission of that crime. Both
counts stemmed from Defendant-Appellants’ involvement in a heroin ring. At
trial, the DEA case agent testified both as a fact witness about their case and
as an expert witness about drug code. All three defendants were convicted on
both counts.
    Case: 13-31287     Document: 00513260065      Page: 2   Date Filed: 11/05/2015



                                  No. 13-31287
      The jury found that the total scope of the conspiracy involved one
kilogram or more of heroin, and the district court concluded that this finding
triggered the statutory minimum of 20 years’ imprisonment for Haines and
Porter, and also increased Iturres-Bonilla’s statutory maximum from 20 years’
imprisonment to life imprisonment.           All three defendants challenge the
sufficiency of the evidence for their convictions and the district court’s use of a
conspiracy-wide drug-quantity jury finding instead of an individual-specific
drug-quantity jury finding. All three defendants also argue that the DEA
agent’s testimony was improper.          Iturres-Bonilla makes several other
challenges to his sentence.
      Because there is no merit to defendants’ sufficiency of the evidence
arguments, and because the portions of the DEA agent’s testimony that were
admitted in error were harmless, we AFFIRM the convictions. Because the
district court improperly sentenced Haines and Porter based upon the
conspiracy-wide drug quantity, we VACATE their sentences and remand the
case to the district court for resentencing of Haines and Porter. Because the
district court did not plainly err in sentencing Iturres-Bonilla, we AFFIRM his
sentence.
                                        I.
      In October 2010, the DEA began investigating a New Orleans drug
dealer named Marc Guyton. Officer Ricky Jackson testified that he made
roughly ten undercover purchases of heroin from Guyton between November
2010 and April 2011. In March 2011, the DEA began tracking Guyton’s calls
and texts. In April 2011, the DEA also began tracking Haines’s calls and texts.
Over the next several months, the government began surveilling two other
members of the drug ring, Harry Berry and Terrance Henderson.                 This
surveillance produced much of the evidence presented at trial.


                                        2
    Case: 13-31287    Document: 00513260065     Page: 3   Date Filed: 11/05/2015



                                 No. 13-31287
      DEA Task Force Agent Demond Lockhart was the key government
witness at trial. According to his trial testimony, Guyton called Haines in April
2011 and, using “code” phrases, expressed his desire to buy heroin from
Haines. Guyton was returning from an unsuccessful attempt to buy heroin in
St. Louis. In code, Haines agreed to sell a sample of heroin to Guyton. After
this phone call, GPS tracking indicated that Guyton went to the block of
Haines’s home. After midnight, Guyton texted Haines to begin negotiating the
price of heroin.
      Guyton also texted an individual identified as “Nick,” one of his heroin
customers. Guyton told Nick he wanted Nick to “check something out,” which,
according to Lockhart, indicated that Guyton wanted someone to test a sample
of heroin. Later that day, Guyton called Haines and said that “it’s good, I’m
going to get that from you,” as long as Haines “[m]ake[s] sure it’s that same
thing right there.”    According to Lockhart, this exchange was Guyton’s
confirming to Haines that Guyton would purchase heroin so long as it was the
same as the sample. Guyton asked Haines to let him know “the ticket,” i.e.,
the price, and to “[c]heck on the half also,” meaning a half-kilogram of heroin.
      Later that day, Guyton texted Haines and said, “just one quarter of
crawfish; don’t f—k with the one half.” According to Lockhart, “crawfish” was
a code term for heroin; the text message was changing the order from a half-
kilogram to a quarter kilogram. Haines responded that he would “see what
Cajuns got.” Lockhart testified that “Cajuns” was Guyton’s term for the person
from whom he would buy heroin. Haines sent a follow-up text stating that
“Cajuns” would let him know about the order later. At noon, Haines texted
Guyton that “Cajuns don’t have no mo crawfish.” The only person Haines had
talked to on the phone that morning, other than his two girlfriends, was Harry
Berry.


                                       3
    Case: 13-31287    Document: 00513260065    Page: 4   Date Filed: 11/05/2015



                                No. 13-31287
      After the “Cajuns” exchange, Guyton texted Haines and asked, “That’s
all you had?” Haines responded affirmatively. Guyton responded to Haines,
“D—n, Knowledge,” which is Guyton’s nickname for Haines. Haines replied,
“I know, bruh, we need to go to Afghanistan.” Lockhart testified that over 75%
of the world’s opium comes from Afghanistan, and opium is used to make
heroin.
      That same day, Haines called Guyton and the two of them discussed the
quality of the heroin that Haines had given to Guyton, apparently in response
to a negative review that another distributor had given Guyton of the sample
provided by Haines. Guyton and Haines arranged to meet, and indeed met
that night at a gas station. Haines and Guyton drove separate vehicles to the
gas station; Haines exited his vehicle and got into the passenger seat of
Guyton’s vehicle, then shortly thereafter exited Guyton’s vehicle and returned
to his own vehicle.
      The government also presented extensive evidence of the involvement of
appellant Raymond Terrell Porter, whose nickname was “T,” in the drug ring.
According to the testimony of co-conspirator McKenzie Weber, Porter had once
sold nine ounces of heroin to Guyton in Guyton’s Frenchman Street apartment.
After buying the heroin, Guyton proceeded to “cut” it using a blender.
      In May 2011, Porter called Guyton and Guyton responded that he was
still at home. Guyton then called two of his heroin customers and asked them
“to check something out.” As noted above, according to Lockhart’s testimony,
this is the phrase Guyton uses with his customers to indicate he has a sample
for them to try. The customer texted Guyton shortly thereafter, “Honestly, last
s—t was better, Brah.” That night, Guyton called a co-conspirator, Dorian
Goins, and discussed the variances they had noticed in Porter’s products.
Approximately two weeks later, the New Orleans police department arrested


                                      4
    Case: 13-31287      Document: 00513260065     Page: 5   Date Filed: 11/05/2015



                                   No. 13-31287
Guyton and found him in possession of 63 grams of heroin. After the arrest,
Haines and Berry discussed it on the phone.
         At this point, investigators believed that an apartment in Houston,
Texas, that Berry and his associates called “the spot,” was hosting drug
transactions involving defendants. In early June 2011, Berry and Haines
drove to Houston. Berry dropped Haines off at a mall and then went to “the
spot.”    While in Houston, Berry repeatedly called Iturres-Bonilla’s phone.
During the drive, Berry also contacted Porter and, according to Lockhart,
spoke in code that indicated Porter had not given Berry enough money.
         After Berry and Haines returned to New Orleans, the investigators put
surveillance on Berry. Berry drove from Haines’s residence to the home of
Ruffin Moye, a codefendant. Moye came outside, entered Berry’s vehicle, and
then exited it again. The next day, police checked Moye’s trash and found
plastic with heroin residue on it and black tape. It was inside a plastic bag
that looked as if it had been washed out. The police followed Moye, saw him
conduct heroin sales, and arrested him.
         Several days later, Berry made another trip to “the spot.” The following
day, on the way back, Berry stopped at Porter’s brother’s residence for 25
minutes. After leaving the residence, Berry stopped a block or two away and
discarded a white plastic bag containing plastic wrap and black electrical tape.
Berry then went to Porter’s residence.
         In July, Berry took another trip to “the spot.” On the way there, he
stopped at Haines’s residence and on his way back, he stopped at Haines’s
residence again. After remaining there for an hour, Berry and Haines left in
Berry’s truck. Berry stopped his truck around the corner, and Haines exited
the vehicle and threw away a bag in a trash bin. Investigators discovered that
the bag contained plastic wrap and black electrical tape, and it tested positive
for heroin residue.
                                         5
    Case: 13-31287     Document: 00513260065      Page: 6    Date Filed: 11/05/2015



                                  No. 13-31287
      Beginning in mid-July, the government intercepted numerous phone
calls between Iturres-Bonilla and Henderson and between Iturres-Bonilla and
Berry. On July 15, Berry and Iturres-Bonilla spoke on the phone. Iturres-
Bonilla asked, “How everything going with you?” Berry responded, “Ain’t too
much, slow but sure,” which Lockhart testified was code for steady heroin
business. Iturres-Bonilla also said, “I got a little situation,” which Lockhart
testified was a problem with his heroin trafficking.
      In a July phone call with Henderson, Iturres-Bonilla discussed dealing
with the money Henderson had previously given him, as well as problems with
his heroin suppliers. Iturres-Bonilla also assured Henderson that the heroin
business would “pick up.”
      The following day, in a phone call between Berry and Henderson,
Henderson referred to Iturres-Bonilla (whose voice can be heard on the call) as
Berry’s “partner.” The three of them discussed the heroin business in New
Orleans using code phrases relating to cars and auctions. The next day, Berry
and Iturres-Bonilla continued talking about the drug trade using the “auction”
codes. Near the end of the call, Iturres-Bonilla stated, “we’re going to go ahead
and get some other lines, okay?” Lockhart testified that this was an instruction
to get new telephones.
      Henderson called Iturres-Bonilla several days later and asked him
whether he kept a “skillet” at “the spot”; a skillet is a device used to cut heroin.
Several days after that, investigators heard Henderson discussing his plans for
collecting money from his dealers in New Orleans and the fact that his supplier
had more heroin available. Henderson then went to New Orleans and met
with several known heroin dealers. The following day, in Houston, Iturres-
Bonilla’s vehicle was spotted in the parking lot of “the spot” next to
Henderson’s vehicle. Iturres-Bonilla was then stopped by the police in a traffic


                                         6
     Case: 13-31287      Document: 00513260065         Page: 7    Date Filed: 11/05/2015



                                      No. 13-31287
stop. During the traffic stop, he gave the police a fake ID in the name of
Ramsey Crespo.
       In mid-August, Berry again went to “the spot.” When returning through
Baton Rouge, Berry was stopped by Louisiana police on a traffic violation. A
search of Berry’s car revealed a secret compartment containing 999 grams of
heroin wrapped in black electrical tape.
       In November, investigators arrested many of the coconspirators and
executed searches on multiple residences and other properties. DEA agent
Vincent Saltaformaggio testified that he helped execute a search warrant on
Iturres-Bonilla’s residence in Richmond, Texas, and also had an arrest warrant
for Iturres-Bonilla. According to Saltaformaggio, during the search, Iturres-
Bonilla ran outside from the garage and threw a metal press over the fence
into a neighbor’s yard. The metal press, which is commonly used by drug
dealers to compress drugs, contained 405 grams of heroin wrapped in clear
cellophane.
       Inside the garage, investigators found a garbage can containing a bag
with $89,000 in cash.        The residence contained a Colombian passport in
Iturres-Bonilla’s name and two Texas ID cards in the name of Ramsey Crespo.
The Crespo ID cards displayed a picture of Iturres-Bonilla. In and near the
sink were cellophane wrapping in soapy water and black tape, both of which
Saltaformaggio testified were commonly used to wrap heroin. Saltaformaggio
also testified that investigators had found similar wet cellophane wrapping
when doing “trash pulls.” 1 Specifically, a July trash pull relating to Haines
and Berry had yielded similarly wet cellophane wrapping.




       1A “trash pull” is the term for searching the trash after a suspect has been observed
discarding trash.
                                             7
    Case: 13-31287    Document: 00513260065      Page: 8   Date Filed: 11/05/2015



                                 No. 13-31287
      The same day, Saltaformaggio also searched “the spot,” which he
described as “torn up” and lacking any indication that people lived there, such
as clothing or personal items. Saltaformaggio also testified that he observed
the red pickup truck from Iturres-Bonilla’s residence near the apartment
building on a past occasion.
      Iturres-Bonilla’s girlfriend took police to his safe deposit box. The safe
deposit box contained copies of a Colombian passport, copies of a Colombian
National ID card, and a Puerto Rican birth certificate.         The Colombian
documents all bore Iturres-Bonilla’s name and picture. The birth certificate
bore the name Ramsey Fabian Crespo Morales. The safe deposit box also
contained jewelry that was later appraised at $97,000.
      DEA agent Derrick Conn conducted the search on Henderson’s Houston
residence. During the search, Conn found 710 grams of heroin, $9,700 cash,
and eight cell phones. Lockhart executed the search warrant on Berry’s house.
The search uncovered $40,000 in cash in a closet and receipts for another
$20,000 of expenditures.       Agent Marc Webber searched Porter’s home.
Although Porter had not reported income for 2008–2011, his residence included
granite countertops, large televisions, and over fifty boxes of shoes. Porter
stated that he was flat broke. Agent Jules Martin led the search of Haines’s
residence. There, police located $924 in the pants he was wearing and $2,000
in the pocket of a jacket in his closet. They also found a bottle of mannitol, a
dietary supplement used for cutting heroin. Finally, they found five cell phones
in the house. A search of two residences belonging to Guyton uncovered a large
press, a .223 caliber rifle, and 114 grams of heroin.




                                        8
     Case: 13-31287       Document: 00513260065          Page: 9     Date Filed: 11/05/2015



                                       No. 13-31287
                                             II.
        The grand jury returned a 28-count indictment against Haines, Porter,
Iturres-Bonilla, and eleven other defendants. 2 In the Second Superseding
Indictment, Haines, Porter, and Iturres-Bonilla were charged with conspiring
to possess with intent to distribute one kilogram or more of heroin in violation
of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A) and knowingly or intentionally
using a communications facility in committing that violation, in violation of 21
U.S.C. § 843(b).
       At trial, the government relied on extensive testimony from Lockhart.
He testified both in his role as the case agent and also as an expert witness on
drug code. 3 Lockhart testified that he had worked on drug investigations for
eleven years and had listened, through court-ordered phone taps, to “well over
100,000” phone calls including discussion of heroin or other illegal drugs. He
testified that through his experience, he had learned to interpret the coded
language drug dealers use to describe their products and activities.                      The
government moved to qualify Lockhart as “an expert in drug code.”
       The defendants cross-examined Lockhart to determine if he was properly
qualified as an expert in drug code. On cross-examination, Lockhart testified
that he had not taken courses on drug code and that he was aware of no such
courses. Lockhart also testified that he had not written articles on interpreting
drug code, nor had he taught any classes, although he had instructed other
individuals on interpreting drug code. He testified that he had participated in
hundreds of narcotics investigations and had been the lead agent on eight of
those investigations.


       2  Ten other defendants pleaded guilty before trial, while the eleventh was a fugitive
until after the conclusion of this trial.
        3 Our cases and those of our sister circuits use the phrases “jargon,” “code,” “lingo,”

and “slang” interchangeably. We use the phrase “drug code” here, but discern no substantive
difference between this term and the other terms.
                                              9
   Case: 13-31287     Document: 00513260065     Page: 10   Date Filed: 11/05/2015



                                 No. 13-31287
      After hearing the defendants’ objections to Lockhart’s being certified as
an expert in drug code, the district court accepted him as an expert, stating:
      I am going to accept Agent Lockhart as an expert in the field of
      drug jargon. I think his training and experience in drug
      investigations, and clearly there was numerous investigations
      involving the use of code words and slang by drug traffickers
      establishing and qualifying him to testify as an expert in this
      specialize[d] area. It’s unlikely that, without his testimony, the
      jury would be able to understand the recorded conversation which
      feature a certain amount of slang or coded language.
      The district court called back the jury and instructed it on the
importance of distinguishing between Lockhart’s expert testimony and his fact
testimony. Specifically, the district court directed:
      The following witness, Agent Lockhart, will testify both as an
      expert witness and as a fact witness. An expert witness offers an
      opinion on certain matters based upon special knowledge, skill,
      experience, training or education. Such witnesses may only render
      an opinion in their particular field of expertise. And, in this case,
      the particular field of expertise is drug code. So it’s only in that
      area that he is allowed to offer his opinion. A fact witness, on the
      other hand, testifies exclusively as to the facts that were
      personally experienced or observed by that witness. Regardless of
      [the] capacity in which Agent Lockhart testifies, you should
      evaluate his testimony as you would any other witness. That is,
      you should assess Agent Lockhart’s credibility as a witness and
      give his testimony as much or as little weight as you believe it
      deserves.
      Lockhart proceeded to testify at length about the phone calls between
the defendants and their co-conspirators. Most of this testimony was not
objected to by the defense. According to Lockhart’s testimony, he listened to a
phone call between Haines and Guyton in which Guyton asked, “You got some
pictures over there?” He testified as an expert that “pictures is a code word
that heroin traffickers use to describe samples or smaller portions of heroin,
representative samples of a larger portion of heroin.” No defendant objected

                                       10
      Case: 13-31287   Document: 00513260065       Page: 11   Date Filed: 11/05/2015



                                    No. 13-31287
to this testimony. Likewise, no defendant objected when Lockhart testified
that an April 3, 2011, phone conversation between Haines and Guyton used
language masking drug references.         Nor did any defendant object when
Lockhart testified to an April 3, 2011, text message from Guyton to Haines;
Lockhart testified that the reference to crawfish in the statement, “Just one
quarter of crawfish; don’t f—k with the one half,” was drug code.             Later
interpretations of “crawfish” and “seafood” as heroin were likewise not objected
to.
        Lockhart also described a text message exchange between Guyton and
Haines as being about heroin purchasing. On a recorded phone call Haines
stated, “Put that with that.” Lockhart testified that this was a reference to
comingling two quantities of heroin. No party objected to Lockhart’s testifying
on the meaning of this phrase.         Lockhart also repeatedly testified that
“Cajuns,” the name of a restaurant, was a code word for a source of heroin. No
party objected to this testimony.
        There were some instances in which the defendants objected. Lockhart
testified that the word “that” in a text message stating “I know you can do that
for me for 21, ha,” was used as a code phrase for heroin. The defense objected
on the grounds that “that” was plain English, not drug jargon. The defense
argued that “[Lockhart] has been qualified as an expert. However, now, he is
saying that he believed the word ‘that’ was referring to . . . specifically some
drug. . . . this is not a matter of code, jargon or linguistics; this is purely
speculation about what a pronoun is in reference to, and that’s what the jury’s
got to determine.”     The district court overruled the objection, telling the
prosecution, “you can do that, what’s ‘that’ mean. I think it’s appropriate for
[Lockhart] to tell us in the context of this text [message] what ‘that’ is referring
to. And I’m going to allow.” Referencing the same text message, the district


                                        11
    Case: 13-31287    Document: 00513260065     Page: 12    Date Filed: 11/05/2015



                                 No. 13-31287
court explained that “I’m going to allow him to testify as an expert in narcotic
drugs, drug code, with the context of this text message.”
      In another exchange, the defense lodged a speculation objection to
Lockhart’s testifying about the context behind a text message. The objection
was overruled and the following exchange took place:
      Q [Prosecutor]: Agent Lockhart . . . is [the exhibit] a text message,
      and who is that from?
      A [Lockhart]: This text message occurred at 7:16 a.m. on April 3,
      2011. It’s a text message from Marc Guyton to an individual he
      referred to as Nick.
      Q: Did you, as the case agent, have the opportunity to investigate
      and find out who the person Nick is?
      A: As we identified, Nick is one of Marc Guyton’s heroin customers.
      Q: Could you read the text to the jury.
      A: Text message says: Nick, I need you to check something out for
      me; call me ASAP.
      Q: Is there any code in that text message?
      A: When Marc Guyton uses the two words ‘check something,’ when
      he uses the phrase ‘check something out,’ he’s referring to [a]
      heroin sample that he wants one of his customers to test.
      Q: How did you form that opinion?
      A: Listening to all of Marc Guyton’s telephone calls when he’s
      speaking with his heroin customers.
      Lockhart also testified about an intercepted call on April 3, 2011, as
follows:
      Q: Is there any drug code in this call?
      A: Yes. When Marc Guyton says: ‘What you going to do, man.’ He’s
      asking Clarence Haines if he’s followed through with acquiring the
      total package of heroin that he requested from him on the following
      -- on the previous date. Clarence Haines says: ‘Waiting on the
      word for you.’ He means that I was waiting on you to call me and
      tell me that it was okay for me to follow through. When he,

                                       12
   Case: 13-31287    Document: 00513260065      Page: 13   Date Filed: 11/05/2015



                                 No. 13-31287
      Guyton, says: ‘Yeah, it’s good, I’m going to get that from you.’
      When he says ‘it’s good,’ he’s letting Clarence Haines know that
      the heroin sample-tested out good and that he wanted to get it, get
      the total package of heroin from him. Also . . . Marc Guyton says:
      ‘Make sure it’s that same thing right there.’ He’s telling Clarence
      Haines to make sure that the total package of heroin that he
      supplies is identical to the sample that he received from him on
      the previous date.
      Later, after reading a portion of a call transcript in which Haines says
“we need to go to Afghanistan,” Lockhart testified as an expert that that was a
reference to Afghanistan’s being a major source of heroin. The court overruled
an objection to that testimony as well. When Lockhart testified that “no news
is good news” had meaning as drug code, the district court overruled the
defense’s objection. The defendants also objected to Lockhart’s testifying about
statements from Houston because they claimed he had been admitted as an
expert only on New Orleans drug slang. The court overruled that objection.
      At other times, the court sustained objections that were related to the
scope of Lockhart’s testimony: when Lockhart speculated about the meaning
of a text message based on his own knowledge of other factual circumstances
that had happened around the same time; when Lockhart was asked to
speculate about the identity of a person referenced in a text message; when
Lockhart interpreted “main man” to refer specifically to Porter (the court said
it was the jury’s province to draw that conclusion); and when Lockhart
attempted to recount the contents of a difficult-to-hear audio track that had
been played for the jury.
      In total, during the nine-day trial, the government played or displayed
approximately 100 calls and texts, submitted 113 exhibits into evidence, and
presented the testimony of 22 witnesses. The jury convicted each defendant
on both counts and found that the conspiracy involved one kilogram or more of
heroin.

                                      13
    Case: 13-31287      Document: 00513260065         Page: 14    Date Filed: 11/05/2015



                                     No. 13-31287
                                           III.
      Defendants’ challenges to the sufficiency of the evidence rely in large
part on their claims that Lockhart was improperly permitted to testify as an
expert.    Accordingly, before addressing their sufficiency challenges, we
examine whether Lockhart’s testimony was proper.                    At trial, Lockhart
provided extensive testimony regarding wiretapped conversations and
intercepted text messages among defendants and other co-conspirators.
Defendants argue the district court erred in two respects regarding Lockhart’s
testimony: (1) the district court improperly permitted Lockhart to testify as an
expert under Federal Rule of Evidence 702 on the topic of drug code; and (2)
the district court improperly permitted Lockhart to testify on matters that
were beyond the scope of his expertise. Defendants properly preserved both of
these arguments by objecting at trial.             We review preserved objections
regarding the admission of expert or lay testimony for abuse of discretion,
subject to harmless error analysis. 4 United States v. Akins, 746 F.3d 590, 597
(5th Cir.), cert. denied, 135 S. Ct. 189, and cert. denied, 135 S. Ct. 467, and cert.
denied, 135 S. Ct. 707, and cert. denied, 135 S. Ct. 707 (2014).
                                            A.
      Defendants first argue that Lockhart should not have been qualified as
an expert under Rule 702 at all.            Under Rule 702, expert testimony is
permissible if the expert is qualified “by knowledge, skill, experience, training,


      4   As the government points out, defendants failed to object at trial to many of the
specific instances of Lockhart’s testimony which they now challenge. Defendants argue that
objections would have been futile, noting that the district court twice instructed defense
counsel to “stop beating that dead horse” when they continued to object to Lockhart’s
testimony. We need not decide whether further objections would have been futile, although
we note that the district court granted some of defendants’ subsequent objections to
Lockhart’s testimony. However, because we address Lockhart’s testimony by category rather
than examining each specific statement and because we find that any errors were harmless,
we will review all of defendants’ evidentiary challenges under the more generous abuse of
discretion standard for the sake of simplicity.
                                            14
   Case: 13-31287     Document: 00513260065     Page: 15   Date Filed: 11/05/2015



                                 No. 13-31287
or education” to render his opinion. Fed. R. Evid. 702. Rule 702 further
requires that: “(a) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence or to determine
a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the
testimony is the product of reliable principles and methods; and (d) the expert
has reliably applied the principles and methods to the facts of the case.” Id. If
a “witness testifies as both a fact witness and an expert witness in the same
trip to the witness stand . . . the government and the court must take some
special precautions to make clear for the jury when the witness is relying on
his expertise and when he is relying only on his personal knowledge of the
case.” United States v. York, 572 F.3d 415, 421 (7th Cir. 2009).
      We have “recognized that in the context of drug conspiracies, ‘[d]rug
traffickers’ jargon is a specialized body of knowledge, familiar only to those
wise in the ways of the drug trade, and therefore a fit subject for expert
testimony.’” Akins, 746 F.3d at 599 (quoting United States v. Griffith, 118 F.3d
318, 321 (5th Cir. 1997)). Our sister circuits have also “consistently upheld the
use of expert testimony to explain both the operations of drug dealers and the
meaning of coded conversations about drugs.” United States v. Dukagjini, 326
F.3d 45, 52 (2d Cir. 2002); see also, e.g., United States v. Freeman, 498 F.3d
893, 901–02 (9th Cir. 2007) (holding that expert’s testimony on “interpretation
of encoded drug jargon was admissible”); United States v. Ceballos, 302 F.3d
679, 686 (7th Cir. 2002) (holding that DEA agents with extensive drug
investigation experience were properly qualified as experts in drug code).
Because “drug dealers often camouflage their discussions” with code words,
“expert testimony explaining the meanings of code words may ‘assist the trier
of fact to understand the evidence or to determine a fact in issue.’” Dukagjini,
326 F.3d at 52 (citing Fed. R. Evid. 702).


                                       15
    Case: 13-31287    Document: 00513260065       Page: 16   Date Filed: 11/05/2015



                                  No. 13-31287
      The district court properly qualified Lockhart as an expert under Rule
702 based on his extensive experience as a drug investigator. Under Rule 702,
a witness may be qualified as an expert based upon “knowledge, skill,
experience, training, or education.”         We have never required formal
educational credentials to qualify a witness as an expert, and even “the
advisory committee notes to Rule 702 state that experience in the field can be
the predominant, if not the sole, basis for expert testimony in some cases.”
Ceballos, 302 F.3d at 686.      Defendants engaged in extensive voir dire of
Lockhart before the district court, and they do not argue that they were not
given adequate opportunity to challenge his credentials. Lockhart had been a
drug investigator for over eleven years. During that time, he authored over
fifty Title III (wiretap) affidavits and was the lead investigator in seven or eight
investigations. He also testified that he has listened to “well over 100,000”
wiretapped phone calls in his career. Cf. Griffith, 118 F.3d at 322–23 (holding
that law-enforcement witness was qualified to give expert testimony about
drug dealers based on her “eight-and-one-half years as a DEA agent” and
participation in 50 investigations). Lockhart explained that while he had
never published papers or taught formal classes on drug code, these types of
formal educational opportunities are not common in the field because formal
rules of interpretation would lead conspirators to change their tactics and
undermine investigators’ ability to interpret their conversations. Lockhart
did, however, have experience informally instructing other investigators in
drug code interpretation. Based on Lockhart’s extensive knowledge, skills, and
experience, the district court did not err by qualifying him as an expert.
                                        B.
      Defendants next argue that Lockhart’s testimony went beyond the scope
of his expertise. We agree, in part. Lockhart’s testimony falls into three broad
categories. He testified about: (1) the “coded” meaning of specific words and
                                        16
    Case: 13-31287    Document: 00513260065      Page: 17    Date Filed: 11/05/2015



                                  No. 13-31287
terms commonly used in the drug trade; (2) the meaning of specific words and
terms used by the particular defendants in this case; and (3) the meaning, in
context, of exchanges using common words such as “what,” “she,” “that,” and
“stuff.” As we will explain, testimony in category (1) was permissible expert
testimony; testimony in category (2) was not permissible as expert testimony,
but was admissible as lay opinion testimony; and testimony in category (3) was
impermissible. In addition, with respect to category (2), the district court failed
to guard against conflation of lay and expert testimony. However, we also
conclude that the district court’s errors with respect to Lockhart’s objected-to
testimony were harmless.
                                        1.
      We begin with the portions of Lockhart’s testimony that were properly
admitted as expert testimony. In Griffith, the district court permitted a DEA
agent to testify that “days of work” was code for “pounds of marijuana,” that
“30” meant “$30,000,” and that “5 price” meant $500 per pound. 118 F.3d at
322. We observed that “[j]urors as well as judges often need help in deciphering
the jargon of those engaged in the drug trade.” Id. at 321 (citation omitted).
We had previously “allowed law officers to testify to the ‘argot or seemingly
secret jargon’ used in drug money laundering. . . . [and saw] no reason the same
principle should not apply to drug traffickers as well as their bankers.” Id. at
321–22 (citation omitted).
      Much of Lockhart’s testimony was proper under Griffith. In particular,
Lockhart’s testimony about drug code that has consistent meaning in the
narcotics trade and would be unknown to a lay person was permissible expert
testimony. For instance, Lockhart testified that “ticket” is a word commonly
used in the narcotics trade to reference price; “taxing” refers to overcharging a
customer for heroin; “hitter” is a term for the phone that drug dealers use to
contact their customers; “at my hat” meant “trying to collect money”; and
                                        17
    Case: 13-31287    Document: 00513260065       Page: 18   Date Filed: 11/05/2015



                                  No. 13-31287
“picture” is commonly used to refer to a small sample of heroin. Lockhart
testified that “based on [his] experience with narcotics, when a person is not
able to sell a lot of drugs or is not profiting from selling drugs, they say they’re
suffering from starvation. The opposite of starvation is eating . . . [s]o if you
are profiting from selling drugs and if you are doing well in the drug game,
you’re eating.” Based on this, Lockhart explained that Haines’s reference to
his supplier’s “not being hungry anymore” was Haines’s communicating that
“[o]nce his supplier ‘eats,’ he’s satisfied.” Lockhart also testified about Haines’s
text message to Guyton, which stated that “we need to go to Afghanistan.”
Lockhart testified that “[b]ased on information that [he had] received from [his]
law enforcement career, [he was] aware that over 75 percent of the world’s
opium is produced in Afghanistan. They use opium to produce morphine, and
heroin comes from morphine. So, when Clarence Haines referenced going to
Afghanistan, he’s telling Marc Guyton that that’s the place we need to go to
obtain the quantities of heroin that we want.”         All of this testimony was
properly admitted as expert testimony under Rule 702.
                                         2.
                                        a.
      Turning to the second category of testimony, Lockhart also testified
about the meaning of specific words and terms used by the particular
defendants in this case (but not necessarily in the drug trade generally). For
example, Lockhart testified that when [co-conspirator] Barry said “you know
I’ll be up there as soon as I can,” the phrase “I’ll be up there” is a reference to
Houston, Texas. He also testified that Barry uses the phrase “as soon as I can”
“to inform Bonilla that as soon as he’s [Barry] done distributing heroin he’ll be
up there.” Lockhart also testified that when Haines sent messages saying “I
know you can do that for me for 21, ha,” and “that’s all I had,” the word “that”
was code for “heroin.” Lockhart further testified that “What you going to do,
                                        18
    Case: 13-31287      Document: 00513260065      Page: 19     Date Filed: 11/05/2015



                                   No. 13-31287
man?” was drug code for “asking Clarence Haines if he’s followed through with
acquiring the total package of heroin that he requested from him on the . . .
previous date.” This testimony was not based on Lockhart’s expertise with the
drug trade writ large; rather, this testimony is based on his familiarity with
this particular case.
      We have recognized that this type of testimony is “within the proper
ambit of a lay witness with extensive involvement in the underlying
investigation.”    Akins, 746 F.3d at 599.         Where an “agent’s ‘extensive
participation     in    the   investigation   of   [the]      conspiracy,   including
surveillance . . . and the monitoring and translating of intercepted telephone
conversations, allow[s] him to form opinions concerning the meaning of certain
code words used in this [specific] drug ring based on his personal perceptions,”
lay opinion testimony is proper. Id. (quoting United States v. Miranda, 248
F.3d 434, 441 (5th Cir. 2001)). “[E]xplaining the meanings of terms as used in
the conversations and documents, as well as the relationships between the
people [the agent is] investigating . . . provide[s] the jury with relevant factual
information about the investigation.” Id. (quoting United States v. El-Mezain,
664 F.3d 467, 514 (5th Cir. 2011)).
      In Akins, we held that where the witness decoded specific phrases and
explained the basis for his opinion as to their meaning, his lay opinion
testimony was proper. Id. at 600. The law enforcement agent testified that he
knew that “three zones” was code for “three ounces” “because he heard the
speakers on the intercepted calls use the terms interchangeably [and] that a
‘nine’ referred to nine ounces of cocaine because the quoted price was consistent
with that amount in the investigation . . . and ‘[he knew] from the search and
seizure that [a ‘bi’] is approximately 4–1/2 ounces of crack cocaine.’” Id. at 600
n.15 (third alteration in original); see also United States v. Macedo-Flores, 788
F.3d 181, 192 (5th Cir. 2015) (“Although [an FBI agent’s] experience as a law
                                         19
   Case: 13-31287     Document: 00513260065      Page: 20   Date Filed: 11/05/2015



                                 No. 13-31287
enforcement officer may have allowed him to testify as an expert, our case law
also allows him to testify to his lay opinion regarding the meaning of code
words used in an investigation for which he is the lead investigator.”), petition
for cert. filed (Sept. 2, 2015) (No. 15-5947); Miranda, 248 F.3d at 441 (holding
that lay witness could testify to “the meaning of certain code words used in this
drug ring based on his personal perceptions”).
      When Lockhart testified that “picture” and “camera” were drug code, he
also bolstered that opinion with testimony that the GPS tracking device on
Guyton’s cell phone indicated that Guyton had just returned from St. Louis,
Missouri when he placed that particular call. Thus, Lockhart was relying on
both his experience interpreting drug code and his first-hand knowledge of the
investigation. Lockhart also testified about an exchange between Guyton and
Terry Thompson, one of Guyton’s heroin customers. Guyton told Thompson
that he had something for Thompson, and Thompson later responded that “I
did a little over half of it and it was weak.” Lockhart testified that this
exchange was Guyton getting Thompson to sample a batch of heroin and report
on its quality and strength. This testimony is lay opinion under Rule 701
because it is based upon Lockhart’s personal knowledge of the investigation.
Similarly, Lockhart’s testimony that “half” in the phrase “check on the half”
referred to a quantity of heroin was based on his knowledge of the previous
quantities of heroin that Guyton had purchased. Therefore, it would have been
admissible as lay opinion testimony under Rule 701 even if Lockhart were not
also an expert on drug code.
                                       b.
      Although Lockhart’s testimony in the second category was admissible as
lay opinion testimony under Rule 701, it was nevertheless admitted in error in
some instances, because the district court did not adequately differentiate
between Lockhart’s lay and expert testimony.
                                       20
    Case: 13-31287    Document: 00513260065     Page: 21   Date Filed: 11/05/2015



                                 No. 13-31287
      In Dukagjini, the Second Circuit identified four special concerns that
arise when case agents testify in a dual capacity as experts and lay witnesses.
326 F.3d at 53 (“While expert testimony aimed at revealing the significance of
coded communications can aid a jury in evaluating the evidence, particular
difficulties, warranting vigilance by the trial court, arise when an expert, who
is also the case agent, goes beyond interpreting code words and summarizes
his beliefs about the defendant’s conduct based upon his knowledge of the
case.”). First,
      when a fact witness or a case agent also functions as an expert for
      the government, the government confers upon him the aura of
      special reliability and trustworthiness surrounding expert
      testimony, which ought to caution its use. This aura creates a risk
      of prejudice because the jury may infer that the agent’s opinion
      about the criminal nature of the defendant’s activity is based on
      knowledge of the defendant beyond the evidence at trial, a risk
      that increases when the witness has supervised the case. Simply
      by qualifying as an “expert,” the witness attains unmerited
      credibility when testifying about factual matters from first-hand
      knowledge. Additionally, when the expert bases his opinion on in-
      court testimony of fact witnesses, such testimony may improperly
      bolster that testimony and may suggest to the jury that a law
      enforcement specialist believes the government’s witness to be
      credible and the defendant to be guilty, suggestions we have
      previously condemned.
326 F.3d at 53 (internal citations, quotation marks, and modifications omitted).
      “Second, expert testimony by a fact witness or case agent can inhibit
cross-examination.” Id. Impeaching an expert is generally difficult because
the expert usually has impressive credentials, and an expert opinion is less
easily contradicted than a factual matter.      Id.   Because a failed effort to
impeach the witness as expert may bolster his credibility as a fact witness, “a
defendant may have to make the strategic choice of declining to cross-examine
the witness at all.” Id.


                                      21
    Case: 13-31287     Document: 00513260065      Page: 22    Date Filed: 11/05/2015



                                   No. 13-31287
      Third, “when the prosecution uses a case agent as an expert, there is an
increased danger that the expert testimony will stray from applying reliable
methodology and convey to the jury the witness’s ‘sweeping conclusions’ about
appellants’ activities, deviating from the strictures of Rules 403 and 702.” Id.
at 54 (citing United States v. Simmons, 923 F.2d 934, 946–47 n.5 (2d Cir.
1991)). The Dukagjini court noted the need for testimony interpreting drug
code to be “closely monitored by the district court” to avoid letting the agent
usurp the jury’s function and improperly summarize an investigation by others
that is not part of the record. Id.
      Fourth, a failure to clearly distinguish between fact and opinion
testimony is likely to confuse the jury. “Some jurors will find it difficult to
discern whether the witness is relying properly on his general experience and
reliable methodology, or improperly on what he has learned of the case. When
the witness is a case agent who testifies about the facts of the case and states
that he is basing his expert conclusions on his knowledge of the case, a juror
understandably will find it difficult to navigate the tangled thicket of expert
and factual testimony from the single witness, thus impairing the juror's
ability to evaluate credibility.” Id.
      Other circuits have likewise noted these four concerns and the need for
courts and the government to carefully distinguish between an agent’s dual
roles. E.g., Freeman, 498 F.3d at 903 (“We share the concerns expressed by
the Second Circuit in Dukagjini.”); United States v. Garcia, 752 F.3d 382, 391–
92 (4th Cir. 2014) (“Despite the district court’s careful attention to [a special
agent’s] credentials as a decoding expert, however, we hold that the agent’s
testimony was fraught with error arising from the problems the district court
itself identified early in the trial: the conflation of [the agent’s] expert and fact
testimony, particularly her reliance on her knowledge of the investigation to
support her coding interpretations; her failure to apply her methodology
                                         22
    Case: 13-31287     Document: 00513260065    Page: 23   Date Filed: 11/05/2015



                                 No. 13-31287
reliably; and last, her failure to state on the record an adequate foundation for
very many of her specific interpretations.”); York, 572 F.3d at 425 (although
law enforcement officers are often permitted to testify as both fact and expert
witness, “there are some inherent dangers with this kind of dual testimony,”
including risk of jury confusion, undue weight being given to fact testimony
because of “aura of special reliability,” and undue weight being given to opinion
testimony because of perception that the officer was privy to facts not
presented at trial).
      The district court in this case recognized the problems arising from the
dual nature of Lockhart’s testimony. Notwithstanding the court’s instruction
to the jury at the outset of Lockhart’s testimony, which accurately described
his dual role, the distinction largely disappeared over the course of Lockhart’s
extensive direct examination. After denying multiple objections and requests
for limiting instructions, the court eventually agreed that a limiting
instruction was needed, noting that “very frankly, we’re going in and out
[between expert and fact testimony], and it becomes very problematic.” The
court then instructed the jury that:
      [Y]esterday, when Agent Lockhart had been called, I indicated to
      you that he had been offered and accepted by the Court as an
      expert in the field of drug code or decoding some of the terminology,
      and that he would be testifying as an expert witness as well as a
      fact witness. As to the testimony you’ve just heard regarding
      identification of various phone numbers, you should be informed
      that that was fact testimony as related to facts that he’s personally
      aware of but not an expert in that opinion.
      After another hour of testimony, the court again correctly recognized
that Lockhart’s purported expert testimony had strayed from a principled
application of specialized knowledge and experience.         In response to an
objection, the court stated: “I think the problem is using [Lockhart] now as a


                                       23
   Case: 13-31287     Document: 00513260065      Page: 24   Date Filed: 11/05/2015



                                  No. 13-31287
transcript and he’s not decoding. He’s just telling us what it said.” The court
then reminded the jury “that the evidence in this case is the actual tape.”
      These instructions were certainly helpful but may have been insufficient
to mitigate the potential for confusion or prejudice caused by the government’s
failure to adequately distinguish between Lockhart’s fact and opinion
testimony. Safeguards sufficient to ensure that a witness’s dual role does not
prejudice or confuse a jury “might include requiring the witness to testify at
different times, in each capacity; giving a cautionary instruction to the jury
regarding the basis of the testimony; allowing for cross-examination by defense
counsel; establishing a proper foundation for the expertise; or having counsel
ground the question in either fact or expertise while asking the question.”
Garcia, 752 F.3d at 392 (finding that a cautionary instruction was insufficient
to mitigate the potential for prejudice where the court had represented to the
jury that the government would be clear in its questions whether it was asking
for fact or opinion testimony, and the government failed to do so); York, 572
F.3d at 425 (“[D]istrict courts must take some precautions to ensure the jury
understands its function in evaluating this evidence. The jury needs to know
when an agent is testifying as an expert and when he is testifying as a fact
witness.”) (internal citation omitted) (finding error where district court did not
“flag for the jury when [the agent] testified as a fact witness and when he
testified as an expert”; agent’s testimony switched back and forth between
expert experience and knowledge of the particular investigation at issue; and
the government’s framing of questions asked agent to rely on both expert
opinion and knowledge of the investigation at the same time); see also
Dukagjini, 326 F.3d at 56 (“Although we decline to prohibit categorically the
use of case agents as experts, we note that the Federal Rules of Evidence and
the Supreme Court place the responsibility upon the district courts to avoid
falling into error by being vigilant gatekeepers of such expert testimony to
                                       24
    Case: 13-31287        Document: 00513260065          Page: 25      Date Filed: 11/05/2015



                                        No. 13-31287
ensure that it is reliable and not substantially more unfairly prejudicial than
probative.”) (internal citation omitted).
       The government’s questions and Lockhart’s testimony interpreting the
wiretapped phone calls in this case frequently failed to distinguish between
Lockhart’s opinion testimony based on his years of experience investigating
drug crimes and his fact testimony based on his knowledge of the particular
conspiracy at issue in the case.            This “le[ft] the jury to wonder who was
testifying, [Lockhart]-the-expert or [Lockhart]-the-case-agent.” York, 572 F.3d
at 426. Where Lockhart offered fact testimony about the meaning of certain
words or phrases used in this conspiracy but not in the broader drug trade,
without explaining the basis of interpretation, the government and the court
did not adequately clarify for the jury that this was lay testimony. As a result,
some of Lockhart’s fact testimony, which would otherwise have been
admissible based on his personal knowledge of the investigation, was admitted
in error.
       Nonetheless, any error here was harmless 5 because the record—even
excluding those portions of Lockhart’s testimony in which his role was
unclear—is replete with evidence that all three defendants participated in the
conspiracy. See Part IV, infra.
                                               3.
       Turning to the third category of testimony, Lockhart also testified about
the meaning, in context, of exchanges using common words such as “what,”
“she,” “that,” and “stuff.” This testimony was impermissible. Federal Rule of
Evidence 701 provides:




       5 As noted above, we are reviewing all of defendants’ evidentiary challenges for abuse
of discretion subject to harmless error, notwithstanding their failure to object at trial to some
of the statements they now challenge.
                                              25
   Case: 13-31287     Document: 00513260065      Page: 26   Date Filed: 11/05/2015



                                  No. 13-31287
      If a witness is not testifying as an expert, testimony in the form of
      an opinion is limited to one that is: (a) rationally based on the
      witness’s perception; (b) helpful to clearly understanding the
      witness’s testimony or to determining a fact in issue; and (c) not
      based on scientific, technical, or other specialized knowledge
      within the scope of Rule 702.
“[L]ay opinion testimony is permitted under Rule 701 because it has the effect
of describing something that the jurors could not otherwise experience for
themselves by drawing upon the witness’s sensory and experiential
observations that were made as a first-hand witness to a particular event.”
United States v. Freeman, 730 F.3d 590, 595 (6th Cir. 2013) (emphasis added)
(citation omitted).   Testimony on topics that the jury is fully capable of
determining for itself is not “helpful to clearly understanding the witness’s
testimony,” Fed. R. Evid. 701, and therefore is inadmissible under Rule 701.
      In Freeman, 730 F.3d at 598, the government offered lay opinion
testimony from an FBI agent that included interpreting “the situation is over
with” by explaining that “[t]he situation discussed was regarding [the victim]
and his having stolen jewelry from [the defendant], [the defendant] having put
a hit on [the victim] and [the victim] ultimately being killed.” The Sixth Circuit
cautioned that “a lay opinion should not waste time” or “merely tell the jury
what result to reach,” and that “[a] witness, lay or expert, may not form
conclusions for a jury that they are competent to reach on their own.” Id. at
597. “[A] case agent testifying as a lay witness may not explain to the jury
what inferences to draw from recorded conversations involving ordinary
language.” Id. at 598. The court held that the agent’s testimony was improper
because it “effectively spoon-fed his interpretations of the phone calls and the
government’s theory of the case to the jury, interpreting even ordinary English
language.” Id. at 597 (citing United States v. Peoples, 250 F.3d 630, 640 (8th
Cir. 2001) (finding that the agent’s “testimony was not limited to coded, oblique

                                       26
   Case: 13-31287     Document: 00513260065      Page: 27   Date Filed: 11/05/2015



                                  No. 13-31287
language, but included plain English words and phrases” and was therefore
inadmissible under Rule 701)). But see United States v. Ceballos, 302 F.3d 679,
688 (7th Cir. 2002) (“[W]e hold that the district court did not abuse its
discretion in permitting [special agents] to offer expert testimony on the
meaning of pronouns such as ‘it’ and ‘them’ because the pronouns were used in
an ambiguous manner and because of the agents’ vast experience with drug
code language.”); United States v. Gadson, 763 F.3d 1189, 1210 (9th Cir. 2014)
(“Because a jury may become confused by vague pronouns such as ‘who,’ ‘him,’
and ‘that,’ [an officer’s] testimony would provide helpful context” and district
court did not plainly err by admitting it).
      Similarly, in United States v. Grinage, 390 F.3d 746, 748–49 (2d Cir.
2004), a DEA agent testified that several intercepted phone calls using the
phrases “I need something bad, bad, bad,” and “I need about nearly four,” were
drug-related “based on [his] knowledge of the entire investigation” and
“because of his knowledge of [the defendant’s] activities.” The court held that
this testimony was improper as lay opinion because it “usurped the function of
the jury to decide what to infer from the content of the calls.” Id. at 750. The
court warned that under this approach “there would be no need for the trial
jury to review personally any evidence at all. The jurors could be ‘helped’ by a
summary witness for the Government, who could not only tell them what was
in the evidence but tell them what inferences to draw from it. That is not the
point of lay opinion evidence.” Id.; see also United States v. Hampton, 718 F.3d
978, 986 (D.C. Cir. 2013) (Brown, J., concurring) (“A lay opinion witness may
tell jurors ‘what was in the evidence,’ but not ‘tell them what inferences to draw
from it,’ for that responsibility is up to the jury and the jury alone.”) (citing
Grinage, 390 F.3d at 750). Such a usurpation of the jury’s function by a
government agent is especially concerning because “[a]n agent presented to a
jury with an aura of expertise and authority increases the risk that the jury
                                       27
   Case: 13-31287     Document: 00513260065      Page: 28   Date Filed: 11/05/2015



                                  No. 13-31287
will be swayed improperly by the agent’s testimony, rather than rely on its own
interpretation of the evidence.” Freeman, 730 F.3d at 599; see also Grinage,
390 F.3d at 751 (same). But see Gadson, 763 F.3d at 1209 (“Contrary to the
rationale of Hampton and Grinage, ‘the application of Rule 701 should not be
influenced by concern that opinion testimony usurps the role of the jury or that
factual testimony is more reliable than opinion testimony.’”) (quoting 29
Charles Alan Wright & Victor James Gold, Federal Practice & Procedure
§ 6252, at 112 (1997)).
      In this case, when Lockhart testified to the meaning of common words
like “what,” “she,” “that,” and “stuff,” he was offering his own interpretation of
language that was well within the province of the jury to interpret. The same
is true with respect to Lockhart’s testimony as to the meaning of pronouns such
as “that” and “it,” and his testimony that “as soon as I can” was a reference
related to heroin. At another point, the government introduced an exchange
between Haines and Guyton in which Haines says, “I wanted to bring him that
s—t, too” “from last night.” Lockhart testified that he “determined that the . . .
s—t that [Haines] wanted to bring him back was the heroin that he provided
to Marc Guyton on the previous night. Or, the money from that heroin, he
wanted to bring that to his heroin supplier when was finished.” This testimony
was admitted in error because it went beyond Lockhart’s expertise and
personal knowledge of the investigation and instead ventured into speculation,
usurping the jury’s function, which is to draw its own inferences from the
evidence presented. Furthermore, Lockhart was presented to the jury “with
an aura of expertise and authority,” Freeman, 730 F.3d at 599, which arose not
only from his status as the case agent but also because of his extensive
experience in investigating other drug crimes, increasing the risk that his
testimony would improperly sway the jury.


                                       28
    Case: 13-31287    Document: 00513260065     Page: 29   Date Filed: 11/05/2015



                                 No. 13-31287
      Nevertheless, Lockhart’s interpretation of common words constituted
only a small fraction of his extensive testimony. As discussed below, there was
sufficient evidence to sustain the defendants’ convictions apart from Lockhart’s
improper testimony, and the error was therefore harmless.
                                      IV.
      All three defendants challenge the sufficiency of the evidence for their
convictions. Review of the sufficiency of the evidence is very deferential to the
jury verdict.
      We review a challenge to the sufficiency of the evidence supporting
      a conviction by reviewing all evidence in the light most favorable
      to the verdict to determine whether a rational trier of fact could
      have found that the evidence established the essential elements of
      the offense beyond a reasonable doubt. In determining whether
      there is sufficient evidence to support a verdict, this court asks
      only whether the jury’s decision was rational, not whether it was
      correct. We must accept all credibility choices and reasonable
      inferences made by the trier of fact which tend to support the
      verdict.   The evidence need not exclude every reasonable
      hypothesis of innocence or be wholly inconsistent with every
      conclusion except that of guilt, and the jury is free to choose among
      reasonable constructions of the evidence.
United States v. Lewis, 774 F.3d 837, 841 (5th Cir. 2014) (internal quotation
marks and citations omitted).     None of the defendants can overcome this
exacting standard of review. All of the defendants’ convictions are supported
by evidence that would allow a rational fact-finder to find all of the elements
of the offenses.
      “In a drug conspiracy prosecution, the Government must prove beyond a
reasonable doubt: (1) the existence of an agreement between two or more
persons to violate narcotics law; (2) the defendant’s knowledge of the
agreement; and (3) the defendant’s voluntary participation in the agreement.”
United States v. Hayes, 342 F.3d 385, 389–90 (5th Cir. 2003). “A conviction
under § 843(b) requires proof that a defendant (1) knowingly or intentionally
                                       29
    Case: 13-31287    Document: 00513260065     Page: 30   Date Filed: 11/05/2015



                                 No. 13-31287
(2) used a communications facility (3) to facilitate the commission of a drug
offense.”   United States v. Mankins, 135 F.3d 946, 949 (5th Cir. 1998)
(emphasis omitted).
      Haines contends that there was insufficient evidence to show that he was
involved in a heroin conspiracy. His argument is premised on our excluding
Lockhart’s testimony in its entirety. As we have explained, much of Lockhart’s
testimony was properly admitted and the portions of the testimony admitted
in error were harmless in light of the other evidence presented. Even without
the objectionable parts of Lockhart’s testimony, there is ample evidence from
which a reasonable jury could find Haines guilty beyond a reasonable doubt of
conspiracy to possess with intent to distribute a kilogram of heroin. Haines
was arrested in March 2011 for possession of heroin with intent to distribute.
Haines spoke with the other members of the conspiracy. Although Haines did
not visit “the spot” himself, Haines met with Guyton on multiple occasions and
accompanied Berry on his trip to Houston. Berry met with Haines before and
after his July trip to “the spot,” and Haines discarded a bag of trash containing
heroin refuse. When Haines’s house was searched, investigators found a large
amount of cash, a bottle of mannitol, and five cell phones. The portions of
Lockhart’s testimony that were proper provide still further support for the jury
verdict.    Haines did not object to numerous of Lockhart’s statements
interpreting certain messages to be related to heroin (for example, the
“crawfish” messages of April 3), and Lockhart also testified that Haines spoke
with Guyton on the phone regarding the “ticket,” or the price of heroin. All in
all, there is more than enough evidence in the record for a rational jury to
conclude that Haines knowingly joined a heroin conspiracy.
      Haines’s conviction for use of a telephone in facilitating a drug
conspiracy is likewise supported by sufficient evidence. Even discounting the
objectionable parts of Lockhart’s testimony, there still was ample evidence in
                                       30
    Case: 13-31287      Document: 00513260065        Page: 31    Date Filed: 11/05/2015



                                    No. 13-31287
the record. The government presented evidence of numerous text messages
and calls between Haines and Guyton. Lockhart testified—permissibly—that
many of the phone calls and text messages included discussion of selling heroin
using code language.       Moreover, even without direct testimony about the
content of the calls, there was ample evidence with which a rational jury could
conclude, based on the number and timing of the communications, and the
cryptic and vague language used, that these phone calls and text messages
were in furtherance of the conspiracy.            And with the admission of the
permissible aspects of Lockhart’s testimony, there is even more evidence to
support a finding that the Guyton-Haines calls and texts were in furtherance
of the drug conspiracy. In sum, ample evidence supports the jury verdict.
      Porter’s challenge to the sufficiency of the evidence is primarily based on
his assertion that a rational jury could not conclude beyond a reasonable doubt
that he was “T.” “T” was the nickname of one of the conspiracy participants,
and much of Porter’s connection to the case depends upon whether that
nickname refers to Porter. Porter asserts that there are other people who could
potentially be nicknamed “T” in this case, including Terrence or an unknown
entity.   Because all of the inculpatory evidence relies on his being “T,”
according to Porter, the evidence is insufficient to convict him if the jury could
not have rationally found that he was “T.”
      Be that as it may, there are at least two bases on which a rational jury
could have inferred that Porter was “T.” First, McKenzie Weber identified
Porter as “T.” 6 Porter did not object to Weber’s repeated assertion that he was
“T,” and a rational jury might find credible Weber’s testimony that Porter’s



      6 Weber testified that he bought drugs from Guyton, who bought them from Porter.
On cross-examination, Weber admitted that he had not actually seen Porter on the night in
question when Guyton bought heroin from “T,” and that he had never interacted with Porter
personally or been around him talking, but maintained that “I know him just seeing him.”
                                           31
    Case: 13-31287    Document: 00513260065       Page: 32   Date Filed: 11/05/2015



                                  No. 13-31287
nickname is “T.” Second, in one call, Guyton refers to “T” as having brought
“little B, . . . his step son” to Guyton’s residence, and Porter does have a stepson
whose name begins with a “B.”
      Although Porter attacks Weber’s testimony and the reasonableness of
referring to a teenage boy as “little B,” these facts are sufficient for a rational
fact-finder to infer that Porter is “T.” See United States v. Cannon, 750 F.3d
492, 506 (5th Cir. 2014) (noting that we review the evidence “in the light most
favorable to the verdict, accepting all credibility choices and reasonable
inferences made by the trier of fact which tend to support the verdict.”)
(citation omitted). Because a rational jury could have inferred that Porter was
“T,” a rational jury could have inferred that Porter joined the conspiracy. As
Porter admits in his brief, it would have been reasonable for a jury to infer that
the “T” referenced as Guyton’s “main man” is the same “T” who sold Guyton
heroin during the sale described by Weber. Once the references to “T” are
inferred to be references to Porter, there is more than enough evidence for a
rational jury to convict.    “T” sold heroin to Guyton, was his “main man”
(supplier), and had been the subject of Guyton’s complaints regarding heroin
quality.
      Porter also contends that the evidence was insufficient for the jury to
find that his June 12 call to Berry was in furtherance of the conspiracy,
meaning his conviction for using a communications facility to facilitate a drug
offense would have to be reversed. Porter contends that because the phone call
was just benign sports talk and an agreement for Berry to come over before the
game’s start time of 7:00 p.m., Porter could not have been “facilitating the
commission” of a drug conspiracy under § 843(b). In light of the deferential
standard of review, we cannot say that there was insufficient evidence for the
jury to convict. The government produced evidence that Porter’s arranging to
meet at 7:00 p.m. was for the purpose of getting heroin from Berry. The
                                        32
   Case: 13-31287      Document: 00513260065     Page: 33   Date Filed: 11/05/2015



                                  No. 13-31287
evidence established that Berry was on his way back from “the spot.” Right
before going to Porter’s residence, Berry discarded heroin packaging. Berry
went to Porter’s house at 4:30 p.m., well in advance of the game, and stayed
for four minutes. That evidence was sufficient to allow the jury to find that the
meeting arranged over the call was for a heroin drop-off, which would mean
Porter used a phone to facilitate the drug conspiracy. Sufficient evidence
supports Porter’s conviction on both counts.
      Iturres-Bonilla challenges the sufficiency of the evidence for his
conspiracy conviction because, according to him, the government failed to
prove a sufficient nexus between him, Harry Berry, and Terrance Henderson.
However, there was sufficient evidence for the jury to find beyond a reasonable
doubt that Iturres-Bonilla was part of the conspiracy. When his home was
searched, he attempted to discard 405 grams of heroin that was in a press
designed to compact the powder. In addition to the press and the heroin,
investigators found cellophane wrapping and black electrical tape that was
commonly used to wrap heroin.        The phone records indicate that Iturres-
Bonilla was in frequent contact with Berry and Henderson, including
conversations that used coded language to obfuscate the calls’ nature relating
to drug trafficking.   Contrary to Iturres-Bonilla’s assertions, the record is
replete with evidence tying him to Berry and Henderson. His challenge to the
sufficiency of evidence on that point is rejected, and the conviction is affirmed.
                                       V.
      Iturres-Bonilla argues that the district court erred when it declined to
permit him to call DEA agent Violet Szeleczky as a witness. Szeleczky was one
of the DEA agents in charge of investigating the case. When Iturres-Bonilla’s
lawyer learned that Szeleczky had been cited for poor judgment by the DEA in
2000, the government informed him that it would not be calling Szeleczky as a
witness. Iturres-Bonilla’s lawyer stated that he intended to call Szeleczky
                                       33
   Case: 13-31287     Document: 00513260065      Page: 34   Date Filed: 11/05/2015



                                  No. 13-31287
anyway to elicit statements from her and then use her disciplinary record to
impeach her. The district court instructed Iturres-Bonilla’s lawyer that he
could not call a witness just to impeach her, but could call Szeleczky for factual
testimony and then, if she gave inconsistent testimony, could impeach her. The
district court also stated that Iturres-Bonilla could impeach Szeleckzy if he
established that she was hostile. However, the district court warned that it
would not allow Iturres-Bonilla to call her solely to impeach her.
      Iturres-Bonilla argues that the district court improperly “held that a
party can’t impeach his own witness.” He contends that the district court
stated he could impeach Szeleczky only if the government called her as a
witness. This, according to Iturres-Bonilla, was a violation of his right to
present a complete defense and a violation of his right to confrontation because
Szeleczky was a significant witness. Iturres-Bonilla is correct that a party may
impeach his own witness. Fed. R. Evid. 607 (“Any party, including the party
that called the witness, may attack the witness’s credibility.”). Moreover,
evidence that one of the DEA agents involved in the investigation and arrest
of Iturres-Bonilla had been disciplined for poor judgment may have contributed
to Iturres-Bonilla’s defense. See United States v. Scheffer, 523 U.S. 303, 329
n.16 (1998) (“Whether rooted directly in the Due Process Clause of the
Fourteenth Amendment or in the Compulsory Process or Confrontation clauses
of the Sixth Amendment, the Constitution guarantees criminal defendants a
meaningful opportunity to present a complete defense.”) (internal citations and
quotation marks omitted). However, Iturres-Bonilla’s argument fails because
the district court did not actually prohibit him from calling Szeleczky. In any
event, Iturres-Bonilla did not raise a Confrontation Clause or Due Process
objection before the district court and cannot satisfy the plain error standard.




                                       34
   Case: 13-31287    Document: 00513260065     Page: 35   Date Filed: 11/05/2015



                                No. 13-31287
                                     VI.
      Haines and Porter argue that the district court erred by imposing a 20-
year mandatory minimum sentence. According to Haines and Porter, the
district court erroneously based the mandatory minimum on the conspiracy-
wide quantity of heroin, rather than on the quantities attributable to each of
the defendants individually. The government agrees with Haines and Porter
that the relevant quantity should be the quantity attributable to each
individual defendant, but nevertheless believes it is constrained by our
precedent, which it believes makes conspiracy-wide quantity the relevant
metric. Because it is undisputed that the jury did not make an individualized
quantity finding with respect to either Haines or Porter, and because such
findings are necessary to increase their mandatory minimum sentences, we
vacate their sentences and remand for re-sentencing.
      Sentencing in a conspiracy case involves two distinct sentencing ranges:
the statutory range of punishment and the Sentencing Guidelines range. The
statutory range acts as an outer boundary; a defendant cannot be sentenced
below the statutory minimum or above the statutory maximum, even if the
Guidelines recommend a term of imprisonment outside of that statutory range.
Title 21 U.S.C. § 841 controls the statutory range of punishment for the
defendants in this case. As we have explained,
      Section 841 consists of two relevant subsections. Section 841(a)
      makes it unlawful for any person to manufacture or distribute a
      controlled substance. Section 841(b) defines the applicable
      penalties for violations of § 841(a) based on the type and quantity
      of drug, previous convictions, and whether death or serious bodily
      injury resulted from use of the drug.
United States v. Doggett, 230 F.3d 160, 164 (5th Cir. 2000).       The factual
determination regarding the quantity of the controlled substance can
“significantly increase[] the maximum penalty from 20 years under

                                      35
    Case: 13-31287       Document: 00513260065          Page: 36     Date Filed: 11/05/2015



                                       No. 13-31287
§ 841(b)(1)(C) to life imprisonment under § 841(b)(1)(A),” id., and it can
significantly increase the minimum penalty from zero years under
§ 841(b)(1)(C) to ten years under § 841(b)(1)(A). 7 In Apprendi v. New Jersey,
530 U.S. 466, 490 (2000), and Alleyne v. United States, 133 S. Ct. 2151, 2158
(2013), the Supreme Court held that factual determinations that increase
maximum or minimum sentences, other than a prior conviction, must be found
by a jury beyond a reasonable doubt (or admitted by the defendant). Because
the quantity of heroin involved affects Haines’s and Porter’s minimum
sentences under § 841, it must be found by a jury. See Alleyne, 133 S. Ct. at
2155 (“Mandatory minimum sentences increase the penalty for a crime. It
follows, then, that any fact that increases the mandatory minimum is an
‘element’ that must be submitted to the jury.”).
       The question we must address in this case is whether the relevant
quantity for purposes of determining a mandatory minimum is the quantity
attributable to the entire conspiracy or the quantity attributable to the
individual defendant. We hold that Haines and Porter should have been
sentenced based on the drug quantity attributable to them as individuals, not
the quantity attributable to the entire conspiracy.
       The relevant facts of Haines’s and Porter’s sentencing are laid out below.
                                              A.
       The district court calculated Haines’s criminal-history score as six, which
put him in Criminal History Category III. Haines’s offense level for the drug-
conspiracy charge was 34. With a criminal-history category of III and a base
offense level of 34, the Sentencing Guidelines gave a suggested range of 188–
235 months’ imprisonment. The presentence report (PSR) recommended a


       7 Section 841(b)(1)(C) applies generally to schedule I controlled substances including
heroin, but § 841(b)(1)(A) applies if the violation involves 1 kilogram or more of a mixture or
substance containing heroin.
                                              36
   Case: 13-31287     Document: 00513260065     Page: 37   Date Filed: 11/05/2015



                                 No. 13-31287
sentence of 240 months, however, because 21 U.S.C. § 841(b)(1)(A) mandates
a 20-year minimum if, inter alia, the offense involved one kilogram or more of
heroin and the defendant “commits such a violation after a prior conviction for
a drug felony offense.” Because Haines had a prior felony drug conviction and
the jury found that “the overall scope of the conspiracy involved 1 kilogram or
more of heroin,” the PSR recommended applying the statutory minimum.
      Haines filed 13 objections to the PSR. In his written objections, he
challenged specific facts in the PSR as being outside the evidence presented to
the jury or inconsistent with that evidence. After filing his initial objections,
Haines submitted a sentencing memorandum. He “object[ed] to any and all
enhancements or increases of any kind to his sentence based on facts other
than those decided by the jury or admitted by the defendant,” and cited
Apprendi and Alleyne. At the sentencing hearing, the district court denied all
of Haines’s objections. Haines’s attorney stated that he “would reurge the
objection with regard to the mandatory minimum and . . . would direct the
Court’s attention to a federal case, [United States v. Gurrusquieta, 54 F. App’x
592 (5th Cir. 2002)].” Haines’s attorney stated that “just because there was a
conviction for a certain amount does not automatically trigger the mandatory
minimum sentences found in Section 841(a)(1), but for sentencing purposes the
defendant is only accountable for all of the quantities of marijuana [sic] [with]
which he was directly involved.” The district court overruled that objection,
stating that “Mr. Haines was found by a jury of 12 that he was guilty of
participating in a conspiracy beyond a reasonable doubt and the jury
specifically found that it included a kilogram of heroin.” Because of that, the
district court held that the statutory minimum applied. The court sentenced
Haines to 240 months’ imprisonment on count one and 48 months’
imprisonment on count two, to run concurrently.


                                       37
    Case: 13-31287       Document: 00513260065          Page: 38     Date Filed: 11/05/2015



                                       No. 13-31287
       The district court calculated Porter’s criminal-history score as five,
which put him in Criminal History Category III. The PSR calculated his base
offense level at 34 and, as with Haines, the PSR stated that the 20-year
statutory minimum applied because of a past felony drug conviction and the
jury finding that the offense involved one kilogram or more of heroin.
       Porter filed six objections to the PSR.             In Objection No. 5, Porter
challenged the portion of the PSR which stated that the mandatory minimum
sentence of 240 months applied to him:
       Paragraph 176 of the PSI states “. . . in accordance with USSG
       § 5g1.1(C)(2), the applicable advisory guideline range is 240
       months.” According to [Alleyne], which was decided one month
       following the trial in the above referenced matter, “any fact that
       increases mandatory minimum sentence for crime is ‘element’ of
       crime, not ‘sentencing factor,’ that must be submitted to jury.” The
       Sixth Amendment requires that each element must be proven
       beyond a reasonable doubt. Porter objects to this classification
       because the jury did not deliberate on facts that increase the
       mandatory minimum sentence. 8
       At sentencing, the district court overruled Porter’s objections. Porter’s
attorney reiterated his objection and explained that the numbers in the PSR
were mostly reached by conjecture. He stated that the only quantity his client
was alleged to have “physically touched” was eight ounces. The court overruled
the objection as moot because the statutory minimum would override any
guidelines range reached by the PSR calculations. The defendant himself then
stated that his own conduct did not amount to three to ten kilograms of heroin;
the PSR, he asserted, was attempting to sentence him for the whole conspiracy.
The district court explained that the statutory minimum overrode the



       8The only facts in Porter’s case that increased the mandatory minimum were the
quantity of the heroin attributable to him and his prior conviction. Apprendi and Alleyne do
not require jury findings for prior convictions, so Porter’s challenge necessarily went to the
drug quantity.
                                             38
   Case: 13-31287     Document: 00513260065      Page: 39   Date Filed: 11/05/2015



                                  No. 13-31287
guidelines calculations, agreed to note Porter’s objection, and sentenced Porter
to 240 months’ imprisonment on count one and 48 months’ on count two, to run
concurrently.
      Although Haines and Porters’ objections before the district court did not
identify the precise issue they now raise on appeal with an ideal level of
specificity, they were sufficient to put the district court on notice of their
challenge and preserve the objections on appeal. “Preserved challenges to
sentences, whether inside or outside the guidelines range, are reviewed for
abuse of discretion.” United States v. Torres-Perez, 777 F.3d 764, 767 (5th Cir.
2015).
                                       B.
      For purposes of the Guidelines or for determining statutory minimum
and maximum sentences, our cases always have limited the defendant’s
liability to the quantity of drugs with which he was directly involved or that
was reasonably foreseeable to him. For example, in United States v. Quiroz-
Hernandez, 48 F.3d 858 (5th Cir. 1995), as modified on reh’g (May 8, 1995), we
explained:
      Under the Sentencing Guidelines, a defendant who participates in
      a drug conspiracy is accountable for the quantity of drugs, which
      is attributable to the conspiracy and reasonably foreseeable to him.
      Reasonable foreseeability does not follow automatically from proof
      that the defendant was a member of the conspiracy. Reasonable
      foreseeability requires a finding separate from a finding that the
      defendant was a conspirator. Thus, for a sentencing court to
      attribute to a defendant a certain quantity of drugs, the court must
      make two separate findings: (1) the quantity of the drugs in the
      entire operation and (2) the amount which each defendant knew or
      should have known was involved in the conspiracy.
Id. at 870 (citations, quotation marks, and alteration omitted); accord United
States v. Brito, 136 F.3d 397, 415 (5th Cir. 1998); United States v. Puig-Infante,
19 F.3d 929, 942 (5th Cir. 1994). Of course, Apprendi and Alleyne require the

                                       39
   Case: 13-31287     Document: 00513260065     Page: 40   Date Filed: 11/05/2015



                                 No. 13-31287
jury (rather than the court) to determine “the amount which each defendant
knew or should have known was involved in the conspiracy,” but that finding
still must be made.
      In light of this longstanding rule, we have found error where the district
court increased a statutory minimum in reliance on a conspiracy-wide quantity
of drugs. In United States v. Guajardo, we reiterated that “[f]or sentencing
purposes, a defendant is accountable only for the drug quantity with which he
was directly involved, and all reasonably foreseeable quantities of marijuana
within the scope of the joint criminal activity.” 391 F. App’x 384, 386 (5th Cir.
2010) (internal quotation marks omitted). We held that even though Guajardo
pleaded guilty to a conspiracy involving more than five kilograms of cocaine
and 500 grams of a mixture of methamphetamine, the district court erred by
applying a 10-year statutory minimum because the PSR “determined that the
drug quantity attributable to Guajardo was the equivalent of 300.51 kilograms
of marijuana[, which was less] than the threshold quantity (1,000 kilograms of
marijuana) necessary for triggering the 10-year statutory minimum penalty.”
Id. Likewise, in Gurrusquieta, we noted that a defendant’s conviction for
conspiring to distribute in excess of 1,000 kilograms of marijuana did not
automatically trigger the 10-year mandatory minimum because “a defendant
is only accountable for all quantities of the marijuana with which he was
directly involved, and all reasonably foreseeable quantities of marijuana that
were within the scope of the criminal activity that he jointly undertook.” 54 F.
App’x 592, at *3. “In other words, an individual convicted of conspiring to
distribute at least 1,000 kilograms of marijuana . . . is not necessarily subject
to the ten-year minimum. Only if the defendant is responsible for at least 1,000
kilograms, as determined by the Sentencing Guidelines, does the mandatory
statutory minimum apply.” Id. (finding no plain error because defendant’s
sentence fell within the applicable Guidelines range).
                                       40
    Case: 13-31287        Document: 00513260065          Page: 41     Date Filed: 11/05/2015



                                       No. 13-31287
       In its brief, the government agrees with the defendants that “at least [as]
to imposing a mandatory minimum, . . . the sentence should be based on a
‘defendant-specific approach’ – a finding as to the type and quantity of drugs
that can be attributed to the individual defendant by his personal conduct and
reasonable-foreseeability of co-conspirator conduct.”                   According to the
government,
       [a]t the time of sentencing, the government advocated [that] both
       mandatory minimums and statutory maximums were controlled
       by the jury’s conspiracy-wide finding. After defendants were
       sentenced, the Department of Justice shifted its policy, urging that
       mandatory minimum sentences in drug conspiracy cases should be
       determined by a jury’s defendant-specific finding, in light of
       Alleyne.
However, at oral argument the government cautioned that the rule for drug
quantity findings that increase the mandatory minimum should be the same
as the rule for drug quantity findings that increase the statutory maximum—
and the government suggests that our precedent in United States v. Turner,
319 F.3d 716 (5th Cir. 2003), requires a finding as to the conspiracy-wide
quantity for purposes of the statutory maximum. 9 That is a bridge we need
not cross today. We simply hold that, for purposes of statutory minimums at
sentencing, the relevant quantity is the quantity attributable to the individual
defendant. In this case, the jury did not make any findings about the drug


       9 Last year, relying on Turner, we explained that the government’s burden at trial in
a drug conspiracy case “does not extend to the ‘individualized question of what drug quantity
was attributable’ to a particular defendant as a co-conspirator. The Government ‘need only
allege and prove to the jury the bare facts necessary to increase the statutory sentencing
maximum for the conspiracy as a whole.’” Akins, 746 F.3d at 607 (quoting Turner, 319 F.3d
at 722). Like Turner, Akins addressed statutory sentencing maximums. We also
reemphasized in Akins our well-established rule that “a defendant will not necessarily be
held responsible for the full amount of drugs involved in the conspiracy, but rather only those
amounts of drugs that he knew or reasonably could have known or believed were involved in
the conspiracy, considering the co-conspirator’s role in the conspiracy, his relationship to the
other conspirators, and any other information with sufficient indicia of reliability.” Id.
(citation and internal quotation marks omitted).
                                              41
   Case: 13-31287    Document: 00513260065      Page: 42   Date Filed: 11/05/2015



                                 No. 13-31287
quantities attributable to Haines or Porter, and we accordingly vacate their
sentences and remand for re-sentencing.
                                     VII.
      Iturres-Bonilla claims that the district court erred by imposing a
sentence above the statutory maximum.        According to Iturres-Bonilla, he
should have been sentenced with a statutory maximum of 20 years, but the
district court erroneously applied a statutory maximum of life imprisonment
(and sentenced him to 292 months’ imprisonment) based on the conspiracy-
wide quantity of heroin, rather than based on an individualized quantity
finding. This issue is similar to the one addressed supra with respect to Haines
and Porter; the difference is that whereas Haines and Porter argued that their
minimum was set incorrectly, Iturres-Bonilla claims that his maximum was
incorrectly set. Unlike Haines and Porter, however, Iturres-Bonilla did not
preserve his objection to the use of conspiracy-wide findings, and he cannot
prevail on plain error review.
      Iturres-Bonilla made 25 objections to the PSR.          Several of these
objections were factual corrections, and several others were objections to
statements that implied he was guilty.       Iturres-Bonilla’s other objections
mostly concerned the PSR’s calculation of drug quantities. His most detailed
objection was Objection No. 14, in which he criticized the PSR’s drug quantities
as “based on guesswork, sheer speculation or grossly insufficient information.”
The objection also stated:
      At trial, the defense maintained that Mr. Iturres-Bonilla was
      responsible for less than one kilogram of heroin. The jury
      concluded otherwise. For appellate purposes and for the purpose
      of these objections, the defense maintains that Mr. Iturres-Bonilla
      was responsible for less than one kilogram of heroin. Mr. Iturres-
      Bonilla should be held responsible for no more than 405.6 grams
      of heroin. His base offense level should be 28.


                                      42
   Case: 13-31287     Document: 00513260065      Page: 43   Date Filed: 11/05/2015



                                  No. 13-31287
This objection, and its reference to the “base offense level,” is an objection to
the Guidelines calculation, not to the applicable statutory maximum. Because
Iturres-Bonilla failed to object to the use of a conspiracy-wide quantity to set
the statutory maximum, we review for plain error.               There are four
requirements for plain error review:
      (1) there must be an error or defect—some sort of deviation from a
      legal rule—that has not been intentionally relinquished or
      abandoned; (2) the legal error must be clear or obvious, rather than
      subject to reasonable dispute; (3) the error must have affected the
      appellant’s substantial rights; and (4) if the above three prongs are
      satisfied, the court of appeals has the discretion to remedy the
      error—discretion which ought to be exercised only if the error
      seriously affects the fairness, integrity or public reputation of
      judicial proceedings.
United States v. Escalante-Reyes, 689 F.3d 415, 419 (5th Cir. 2012) (en banc)
(citation and internal quotation marks and alterations omitted).          Iturres-
Bonilla has not argued, much less proven, that he can prevail under that
standard, and we therefore reject his challenge to the applicable statutory
maximum.
      Iturres-Bonilla raises three other challenges to the calculation of his
recommended sentence under the Sentencing Guidelines. We review de novo
the district court’s Guidelines interpretations and review for clear error the
district court’s findings of fact. United States v. Miller, 607 F.3d 144, 147 (5th
Cir. 2010).
      First, Iturres-Bonilla claims that the district court erred in determining
his Guidelines range. In calculating Iturres-Bonilla’s Guidelines range, the
district court determined that Iturres-Bonilla was responsible for between
three and ten kilograms of heroin as part of the conspiracy. This triggered a
base offense level of 34. USSG 2D1.1(c)(3). At sentencing, the court made
several factual findings in support of this quantity. Harry Berry made three

                                       43
   Case: 13-31287      Document: 00513260065    Page: 44   Date Filed: 11/05/2015



                                 No. 13-31287
trips (June, July, and August 2011) to “the spot” and retrieved heroin to be
distributed in New Orleans. Following the June trip, Berry discarded an
empty package containing heroin residue that was consistent with having
contained half a kilogram of heroin. Following the July trip, Berry discarded
two such empty packages. Following the August trip, Berry was arrested with
one kilogram of heroin in his possession, which he had retrieved from “the
spot,” where Iturres-Bonilla supplied heroin.     These trips account for 2.5
kilograms of heroin.
      When Iturres-Bonilla was arrested in November 2011, he was found in
possession of 405.6 grams of heroin and $89,437 cash. Although the district
court did not explicitly state that she found the cash to have a heroin
equivalent, Lockhart had testified at sentencing that $89,000 was equivalent
to roughly two kilograms of heroin, and Iturres-Bonilla does not appear to deny
the district court actually held that the $89,000 was part of the calculation.
The district court did not err in converting the cash into a drug quantity.
Under § 2D1.1, the court may approximate the quantity of the controlled
substance if “the amount seized does not reflect the scale of the offense.” USSG
§ 2D1.1 cmt. n.5. Converting the money seized from a drug defendant into its
equivalent amount of drugs is not clear error. United States v. Henderson, 254
F.3d 543, 544 (5th Cir. 2001).
      It is true that, as Iturres-Bonilla points out, Lockhart later stated that
$40,000 could purchase half a kilogram of heroin, which would mean that
$89,000 could purchase only a little more than one kilogram.                This
inconsistency is immaterial, however, because the cash had to account only for
94.4 grams of heroin, so whether the district court adopted the one-kilogram
or two-kilogram conversion, it more than sufficed to push the total to at least
three kilograms. Accordingly, the district court did not err in calculating the


                                      44
   Case: 13-31287     Document: 00513260065      Page: 45   Date Filed: 11/05/2015



                                  No. 13-31287
amount of heroin attributable to Iturres-Bonilla for purposes of the guidelines
calculation.
      Second, Iturres-Bonilla claims that the district court erred by applying a
four-level sentencing enhancement for being an “organizer or leader of a
criminal activity that involved five or more participants or was otherwise
extensive.” USSG § 3B1.1(a). Specifically, the court found that the evidence
at trial established that Iturres-Bonilla was “a source of supply of the heroin
for Berry and Henderson,” he “directed Berry and Henderson to ‘the spot’
where the heroin was to be retrieved,” and he “directed them to switch
telephones to avoid detection.” Iturres-Bonilla also “further directed Berry and
Henderson to move more heroin.” Iturres-Bonilla objected to this enhancement
in his response to the PSR.
      A trial court’s finding that a defendant is a leader or organizer is a
factual finding reviewed for clear error. United States v. Gonzalez, 436 F.3d
560, 584 (5th Cir. 2006). A court’s factual finding is clearly erroneous “only if,
based on the entire evidence, [we are] left with the definite and firm conviction
that a mistake has been committed.” Akins, 746 F.3d at 609 (citation omitted).
Iturres-Bonilla contends that the district court clearly erred because his “tone
is not one of a leader, but of a partner.”        Rather than directing his co-
conspirators to get new cell phones, he merely stated that, “We’re going to go
ahead and get some other lines, okay?”           He also notes that Berry and
Henderson could access the stash house whenever they wanted.
      Iturres-Bonilla has not carried his burden to show clear error. The
district court’s interpretation of the “other lines” comment as imperative is
plausible.     In addition, although Iturres-Bonilla cites United States v.
Betancourt, 422 F.3d 240, 245 (5th Cir. 2005), for the proposition that being a
supplier of drugs does not automatically render that person a leader or
organizer, that case actually supports the district court’s finding. A person’s
                                       45
    Case: 13-31287     Document: 00513260065        Page: 46   Date Filed: 11/05/2015



                                   No. 13-31287
status as a distributor in a drug conspiracy is relevant in determining both
“the degree of participation in planning or organizing the offense” and “the
nature and scope of the illegal activity.” Id. (quoting USSG § 3B1.1 cmt. n.4).
In light of all this, the district court did not clearly err in finding that Iturres-
Bonilla was a leader or organizer of the conspiracy.
      Third, Iturres-Bonilla argues that the district court erred in applying a
two-level sentencing enhancement because Iturres-Bonilla “maintained a
premises for the purpose of manufacturing or distributing a controlled
substance.” USSG § 2D1.1(b)(12). Iturres-Bonilla objected to the imposition
of this enhancement. The district court overruled the objection, finding that
Iturres-Bonilla had maintained “the spot” for the purpose of making heroin
transactions, as evidenced by Berry’s trips there to receive heroin and the lack
of food, clothes, and personal items found when officers searched “the spot.”
The thrust of Iturres-Bonilla’s argument on appeal is that “the spot” was not
just for drug transactions, but was more generally maintained to be a safe
meeting place. He does not appear to be challenging the conclusion that he
maintained the premises.
      A district court’s application of § 2D1.1(b)(12) is a factual finding
reviewed for clear error. See United States v. Barragan-Malfabon, 537 F. App’x
483, 484–85 (5th Cir. 2013), cert. denied, 134 S. Ct. 716 (2013) (district court
did not clearly err in determining that a primary use of the home was the
storage of controlled substances for distribution purposes); United States v.
Chagoya, 510 F. App’x 327, 328 (5th Cir. 2013) (“[Defendant-Appellant] has
not shown that the district court clearly erred in assessing him an increase in
offense level under § 2D1.1(b)(12).”).        The district court did not err.    The
Sentencing Guidelines specify that “distributing a controlled substance need
not be the sole purpose for which the premises was maintained, but must be
one of the defendant’s primary or principal uses for the premises.” USSG
                                         46
   Case: 13-31287    Document: 00513260065    Page: 47   Date Filed: 11/05/2015



                               No. 13-31287
§ 2D1.1 cmt. n.17. The district court made factual findings, supported by the
record, showing that one of the main purposes for the apartment was drug
distribution. Iturres-Bonilla has not shown how the district court’s decision
was erroneous. His sentence is affirmed.
     For the foregoing reasons, we AFFIRM the defendants’ convictions and
Iturres-Bonilla’s sentence, VACATE Haines’s and Porter’s sentences, and
REMAND the case to the district court for resentencing of Haines and Porter.




                                     47
