                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          SEP 3 1999
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                    No. 98-3274
                                               (D.C. No. 97-40034-01-RDR)
 DWAINE EVANS, SR.,                                (District of Kansas)

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before EBEL, KELLY, and LUCERO, Circuit Judges.




      A jury found Dwaine Evans, Sr. guilty of attempted simple possession of

cocaine. The district court sentenced Evans, Sr. to six months imprisonment and

a fine of $10,000, and denied his motion to reconsider the sentence. Evans, Sr.

appeals, and we affirm.




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
                                 BACKGROUND

      Prior to December of 1996, law enforcement officers in Topeka, Kansas,

conducted an investigation of the drug trafficking activities of Dwaine Evans, Jr.,

son of Dwaine Evans, Sr., Appellant. The officers had no information that Evans,

Sr. was involved in any illegal activity.

      On December 10, 1997, relying on an informant, officers told a manager of

a FedEx office in Topeka to look out for packages from California addressed to

Dwaine Evans at Superior Auto Body Shop. The following day, the manager

informed the officers that such a package, addressed to “Dwaine Evans,” had

arrived. The officers subjected the package to a canine sniff, and the dog alerted

the package.

      While the sniff was taking place, a second package with the same return

address was found. This one was being sent to Yvonne Crawford at a residential

address. The package also was subjected to a canine sniff, and the dog again

alerted.

      The first package was delivered to the body shop by an officer posing as a

FedEx driver. Evans, Jr., signed for the package. Other officers then entered the

building and found the package underneath the floor mat of a car being repaired.

Evans, Jr., admitted that he placed the package there and that the cocaine inside

was his.


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      Officers went to the residence addressed in the second package but did not

deliver the package. 1 The home was occupied by Yvonne Crawford and her

daughter Cathy Williams (“Williams”). It was searched, and marijuana and drug

paraphernalia were found. The officers told Crawford and Williams that a large

quantity of cocaine destined for their residence had been intercepted.

      The women agreed to make taped phone calls to Evans, Sr. Crawford

called on December 12 and told Evans, Sr. to come get the package. However,

Evans, Sr. told her the package was not his. Later in the day, Williams called

Evans, Sr., who told her that he would explain later what was going on, and that

he had done nothing wrong. Both women later testified at trial that packages had

been coming to their residence for Evans, Sr., which either Evans, Sr. or his son

picked up.

      Meanwhile, Evans, Sr. called Lavonne Williams (“Lavonne”), daughter of

Cathy Williams, and apparently granddaughter of Evans, Sr. Evans, Sr. told

Lavonne to go to the residence, retrieve a package that had been delivered there,

and destroy it by putting baking soda or sugar in the package or flushing it down

the toilet. Later in the day, Evans, Sr. called Lavonne and asked if she had

destroyed the package. He told her he would “take care of” her when she fixed



      1
       The address on the package was incorrect, but the officers determined the
correct address and went there.

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her car. Evans, Sr. testified at trial that he suspected the package contained

drugs, based on the fact that a similar package was seized at his business, and he

determined to make sure the package was destroyed in order to protect his son.

      Evans, Sr. was indicted along with his son in a two-count indictment for

attempted possession with intent to distribute cocaine, in violation of 21 U.S.C.

§ 846 (attempt), with reference to 21 U.S.C. § 841(a) (possession with intent to

distribute), and 18 U.S.C. § 2 (principals). Evans, Sr. went to trial, and was

convicted of the lesser-included offense of attempted simple possession of

cocaine. See 21 U.S.C. § 844 (simple possession). The district court sentenced

Evans, Sr. to six month’s imprisonment and a fine of $10,000. Evans, Sr. filed a

motion for reconsideration of the sentence, which the district court denied.

Evans, Sr. appeals, arguing that the $10,000 fine was excessive, that the evidence

did not support the verdict, and that his motion to suppress should have been

granted. We address the arguments in turn.



                                          I.

      Appellant essentially argues that the district court abused its discretion in

fining him $10,000 because (1) there was “nothing in the record indicating what

the district court reviewed in determining that such a fine was appropriate”; and

(2) the fine was inappropriate and unduly burdensome because of the net monthly


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income of his household, which he claims is $3,264, and because of other

financial circumstances. We disagree.

      We review the district court’s imposition of a fine within the range set by

the Sentencing Guidelines for abuse of discretion. See United States v.

Wittgenstein, 163 F.3d 1164, 1173 (10th Cir. 1998), cert. denied, 119 S. Ct. 2355

(1999). We accept the district court’s factual findings relating to defendant’s

ability to pay unless clearly erroneous. See id. The defendant has the burden to

prove his inability to pay. See United States v. Klein, 93 F.3d at 698, 705 (10th

Cir. 1996).

      The Guidelines provide that the sentencing court “shall impose a fine in all

cases, except where the defendant establishes that he is unable to pay and is not

likely to become able to pay any fine.” U.S.S.G. § 5E1.2(a). The Guidelines set

forth the following factors the court should consider in determining a fine:

      (1)     the need for the combined sentence to reflect the
              seriousness of the offense (including the harm or loss to
              the victim and the gain to the defendant), to promote
              respect for the law, to provide just punishment and to
              afford adequate deterrence;

      (2)     any evidence presented as to the defendant’s ability to
              pay the fine (including the ability to pay over a period
              of time) in light of his earning capacity and financial
              resources;

      (3)     the burden that the fine places on the defendant and his
              dependents relative to alternative punishments;


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      (4)    any restitution or reparation that the defendant has made
             or is obligated to make;

      (5)    any collateral consequences of conviction, including
             civil obligations arising from the defendant’s conduct;

      (6)    whether the defendant previously has been fined for a
             similar offense;

      (7)    the expected costs to the government of any term of probation,
             or term of imprisonment and term of supervised release
             imposed; and

      (8)    any other pertinent equitable considerations.

      The amount of the fine should always be sufficient to ensure that the
      fine, taken together with other sanctions imposed, is punitive.

U.S.S.G. § 5E1.2(d) (emphasis added). This section does not require the court to

make specific factual findings addressing the enumerated considerations. See

United States v. Nez, 945 F.2d 341, 343 (10th Cir. 1991).

      We believe the fine was thoroughly justified by the magnitude of the

offense. The two FedEx packages of cocaine contained a street value of a quarter

of a million dollars. While the package delivered to the body shop contained

1979.36 grams of cocaine, the package addressed to the Crawford residence

contained 988.77 grams of cocaine and 3.67 grams of crack. Given the quantity

and value of the drugs in the second package, which Evans, Sr. was convicted of

attempting to possess, we do not believe the $10,000 fine was an abuse of

discretion. The fine, after all, should “reflect the seriousness of the offense,” and


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in the end should “be sufficient to ensure that the fine, taken together with other

sanctions imposed, is punitive.” U.S.S.G. § 5E1.2(d). As for Evans, Sr.’s ability

to pay, that was only one of many factors the district needed to consider, and in

any event the district court “examined all the financial data supplied by the

defendant” and conducted a “complete review of that material.” The court found

that Evans, Sr. did not meet his burden of proving his inability to pay, and his

arguments on appeal do not convince us otherwise. Thus, we affirm the $10,000

fine.



                                          II.

        Next, Evans, Sr. argues that the evidence was insufficient to support the

jury verdict of attempted simple possession of cocaine, because he “did not know

what he was doing was illegal, nor did he have any intent to violate the law.”

Rather, Evans, Sr. argues he only was trying to protect his son by attempting to

gain possession of the package to destroy its contents.

        “[I]n reviewing the sufficiency of the evidence to support a jury verdict,

this court must review the record de novo and ask only whether, taking the

evidence—both direct and circumstantial, together with the reasonable inferences

to be drawn therefrom—in the light most favorable to the government, a

reasonable jury could find the defendant guilty beyond a reasonable doubt.”


                                         -7-
United States v. Voss, 82 F.3d 1521, 1524-25 (10th Cir. 1996) (quotations

omitted). “This review should be independent of the jury’s determination that

evidence on another count was insufficient.”    United States v. Powell , 469 U.S.

57, 67 (1984).

      We believe there was sufficient evidence to support the verdict. Title 21

U.S.C. § 844 provides that “[i]t shall be unlawful for any person knowingly or

intentionally to possess a controlled substance unless such substance was obtained

directly, or pursuant to a valid prescription or order, from a practitioner, while

acting in the course of his professional practice, or except as otherwise

authorized . . . .” (emphasis added). From the statute, it is apparent that the

elements of simple possession are “‘(1) the knowing possession (2) of a

controlled substance.’” United States v. Stone, 139 F.3d 822, 834 (11th Cir.

1998) (quoting United States v. Krout, 66 F.3d 1420, 1431 (5th Cir. 1995)).

      The evidence amply supports the finding that Evans, Sr. knew he was

attempting to possess a controlled substance. Yvonne Crawford testified that she

previously had received between four and five packages on behalf of Evans, Sr.;

that he paid her $50 every time and told her that “‘it was nothing illegal.’” She

further testified that either Evans, Sr., Evans, Jr. or both would pick up the

packages. At trial, appellant testified that he suspected the package sent to the

residence contained illegal drugs, based on the contents of the packaged seized at


                                          -8-
his place of business. His granddaughter Lavonne testified that he told her to

pick up the package and destroy it by mixing it with baking soda or sugar or

flushing it down the toilet, and he testified that he offered to take care of her

when she got her car fixed. Moreover, Evans, Sr. agreed during cross-

examination that he was “going to exercise enough control over that package to

make sure that it was destroyed.” Taken in the light most favorable to the

government, the evidence squarely refutes Evans, Sr.’s argument that the jury

lacked sufficient evidence of the “knowing” element.

        Therefore, we affirm the jury’s verdict.



                                          III.

      Finally, Evans, Sr. appeals the denial of his motion to suppress all items

seized at his body shop on December 11, 1996. Evans, Sr. contends that the

FedEx packages—the first of which was delivered to the body shop and seized on

December 11—were illegally seized at the FedEx office by the FedEx manager,

who detained the package and who, Evans, Sr. asserts, was acting as an agent of

the police. Evans, Sr. also argues that the subsequent sniffing by the drug dog did

not provide probable cause to support the search warrant for the packages.

Although unclear from his brief, Evans, Sr. apparently posits that the allegedly

illegal seizure of the packages at the FedEx office began the chain of events


                                          -9-
which culminated in the searches of his place of business, and therefore that the

items seized from those searches should be suppressed. We do not find these

arguments persuasive.

      “When reviewing a district court’s denial of a motion to suppress, we

consider the evidence in the light most favorable to the government, and accept

the court’s findings of fact unless they are clearly erroneous.” See United States

v. Vazquez-Pulido, 155 F.3d 1213, 1216 (10th Cir. 1998) (quotations omitted)),

cert. denied, 119 S. Ct. 437 (1998). However, “[t]he ultimate determination of

reasonableness under the Fourth Amendment is . . . a conclusion of law that we

review de novo.” Id. (quotations omitted).

      First, assuming arguendo that the FedEx manager was acting as an agent of

the government in detaining the first FedEx package, see United States v. Smythe,

84 F.3d 1240, 1242-43 (10th Cir. 1996), there was clearly reasonable suspicion

for the temporary detainment, such that no Fourth Amendment right was invaded

thereby. Cf. United States v. Lux, 905 F.2d 1379, 1382 (10th Cir. 1990) (“A

temporary detention of mail for investigative purposes is not an unreasonable

seizure when authorities have reasonable suspicion of criminal activity.” (citing

United States v. Van Leeuwen, 397 U.S. 249 (1970)). A reliable confidential

informant tipped off the government that Evans, Jr. trafficked in cocaine, and

with a detailed explanation, informed the government that Evans, Jr. was


                                       - 10 -
expecting to “re-up” with a FedEx package to be shipped to the body shop from

his cocaine source in California. The officers visited the FedEx office on

December 10 to inform the manager to look out for such a package, and the

following day the first package arrived matching the description provided by the

confidential informant. These facts presented reasonable suspicion for a

temporary detainment of the package for further investigation. Additionally, the

thirty-minute detention for a canine sniff in this case was not excessive and did

not amount to an unreasonable seizure. See Van Leeuwen, 397 U.S. at 1032

(detention of package for 29 hours was not excessive); Lux, 905 F.2d at 1381-82

(one-and-a-half day detention was not unreasonable seizure). As for the second

package, the fact that it arrived on the same day and had the same Californian

return address as the first package, and that it was discovered after the canine

alert on the first package, provided reasonable suspicion for its temporary

detainment for a canine sniff.

      Second, the canine alert on the packages provided probable cause to

support the warrant authorizing their search. The canine had a 98.7% reliability

rate with a total of 1,046 sniffs, and the record does not reveal any impropriety in

the manner in which the sniff was conducted. Under our case law, this alert

established probable cause. See United States v. Scarborough, 128 F.3d 1373,

1378 (10th Cir. 1997) (stating that “a drug sniffing dog’s detection of contraband


                                        - 11 -
in itself establishes probable cause for a search warrant,” and finding alert of

canine with 92% reliability supported finding of probable cause).

      Accordingly, we affirm the district court’s denial of Evans, Sr.’s

suppression motion.



                                  CONCLUSION

      The $10,000 fine, the jury verdict, and the denial of the motion to suppress

are AFFIRMED.


                                        ENTERED FOR THE COURT


                                        David M. Ebel
                                        Circuit Judge




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