                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                         August 11, 2006
                                 TENTH CIRCUIT                         Elisabeth A. Shumaker
                            __________________________                     Clerk of Court

 U N ITED STA TES O F A M ER ICA,

          Plaintiff - Appellee,

 v.                                                        No. 05-3331
                                                            (Kansas)
 RA ND ALL D ERW IN TERRELL,                    (D.Ct. No. 02-CR-40154-02-JAR)

          Defendant - Appellant.
                         ____________________________

                              OR D ER AND JUDGM ENT *


Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Randall Derwin Terrell appeals from his federal conviction and sentence

for possession of cocaine w ith intent to distribute and conspiracy to possess

cocaine with intent to distribute in violation of 21 U.S.C. §§ 841 and 846. Terrell

      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The 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.
presents three questions on appeal: (1) whether the Sixth Amendment prohibits

the introduction of Terrell’s statements to a federal agent obtained after counsel

had been appointed for his defense on state charges, (2) whether the district

court’s refusal to decrease his sentence due to his alleged minor role in the

conspiracy is an erroneous application of the advisory guidelines, and (3) whether

the district court’s application of the remedial holding in United States v. Booker,

543 U.S. 220 (2005), to Terrell’s pre-Booker offense violates the Ex Post Facto

clause. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, w e

AFFIR M .

I.    Background

      On November 5, 2002, Terrell, the driver, and his brother-in-law, M urnia

Vercher, were stopped by a Kansas H ighway patrolman, Officer Rios, for a traffic

infraction. In the course of events, approximately two kilograms of cocaine w ere

found hidden in the side panels of the rental van Terrell was driving. Terrell and

Vercher were arrested and charged in Kansas state court with possession of

cocaine with intent to distribute in violation of Kan. Stat. Ann. § 65-4161, and

failure to have a controlled substance tax stamp in violation of Kan. Stat. Ann. §§

79-5204 and 5208. At the time of the arrest, the drugs and a cell phone w ere

seized as evidence.

      On November 6, 2002, Terrell appeared before a Riley County judge via

close circuit television hook up from the Riley County Jail. Based on his

                                         -2-
indigency affidavit, an attorney from state public defender's office was appointed

for his defense. However, no specific attorney was immediately assigned to the

case.

        The next day, before Terrell had an opportunity to talk with his appointed

attorney, Task Force Officer Ray Bailiff, a Kansas Highway patrolman on

assignment to the Drug Enforcement Agency (DEA) Task Force, traveled to the

Riley County Jail to question Terrell in relation to a federal investigation

regarding the cocaine seizure. Based on the large quantity of drugs in the van,

Bailiff believed there were more conspirators involved in the drug distribution.

Therefore, he wanted to question Terrell regarding “the source, the brokers, the

suppliers, other traffickers [and] the distributors” to determine whether federal

drug conspiracy charges would be appropriate. (R. Vol. 3 at 16). Officer Rios

accompanied B ailiff to the interview. Bailiff began by asking Terrell for a

personal history, including the identification of his two home telephone numbers.

He then read Terrell a M iranda warning from a card used for that purpose. 1

Bailiff next asked, “Have you got anything you want to tell me?” (R. Vol. 3 at

22-23). Terrell told Bailiff he was abandoned by his real family and had become

close to his wife’s family. He said “he couldn’t rat on his family,” but advised




        1
         Miranda v. Arizona, 384 U.S. 436, 479 (1966) (a suspect must be apprised of his
rights against compulsory self-incrimination and to consult with an attorney before
authorities may conduct custodial interrogation).

                                          -3-
Bailiff to “[c]heck the fingerprints. That will tell you who put it in there.” (R.

Vol. 3 at 22, 34). The interview lasted approximately ten minutes. 2

      On December 30, 2002, Terrell and Vercher w ere indicted in federal court

on two counts, possession with the intent to distribute cocaine (Count One) and

conspiring to possess with the intent to distribute cocaine (Count Two). On June

16, 2004, a Superseding Indictment was filed expanding the dates of the

conspiracy charge. Prior to trial, Terrell moved to suppress the statements he

made to Bailiff, claiming Bailiff’s failure to notify Terrell’s state-appointed

attorney prior to the interview violated his Sixth Amendment rights. A hearing on

the motion occurred on November 1, 2004. At the hearing, Bailiff testified he

had no knowledge of Terrell’s state court proceedings the previous day and

Terrell did not inform him a state attorney had been appointed. M oreover, Terrell

did not request an attorney when he was informed of that right prior to the

interview. Bailiff further testified that all of his investigations and cases involved

federal, not state, conspiracy charges. Turning to the substance of the interview ,

Bailiff stated the telephone numbers Terrell gave him were the same as those

obtained from the cell phone in Terrell’s possession at the time of his arrest. As a

result, Terrell gave no information in the interview that was not acquired

elsewhere.



      2
       Bailiff also met with co-defendant Vercher, who answered personal history
questions but declined to comment further.

                                          -4-
      On January 11, 2005, the district court issued its written order denying,

inter alia, Terrell’s motion to suppress his statements. The court determined

Terrell’s Sixth Amendment rights had attached for the purposes of his state

charges, but concluded the federal conspiracy charge was a separate offense to

which no right to counsel had attached. Because the M iranda warnings Bailiff

provided were adequate and effective in relation to the federal conspiracy charge,

and Terrell voluntarily waived those rights, the court concluded “Bailiff was free

to interrogate him regarding that offense.” (R. Vol. 1, Doc. 132 at 8). The court

rejected Terrell’s argument that the statement could not be used in his trial for the

possession charge, finding any questions regarding the possession charge w ere

merely a prequel to the purpose of the investigation, securing the identities of co-

conspirators “on the sending and receiving ends.” (Id.) As a result, Bailiff was

allowed to recount Terrell’s statement during Terrell’s jury trial. The trial began

February 9, 2005, and on February 16, 2005, the jury returned a verdict of guilty

on both counts. The court ordered the preparation of a presentence report and

scheduled sentencing for M ay 16, 2005.

      Terrell raised several objections to the presentence report. At issue here is

the district court’s denial of a dow nw ard adjustment due to his role in the offense

under U SSG §3B1.2 (M itigating Role). Terrell also claims the district court’s

application of the remedial portion of the Supreme Court’s ruling in Booker to his

case violates the ex post facto clause because he committed his crime prior to

                                          -5-
Booker. W e address each issue in turn.

II.   Discussion

      A.     M otion to Suppress

      In review ing the district court's order granting or denying a motion to

suppress, we accept the district court's factual findings unless clearly erroneous

and consider the evidence in the light most favorable to the district court's

determination. United States v. Toles, 297 F.3d 959, 965 (10th Cir. 2002). W e

review legal conclusions de novo. United States v. Baez-Acuna, 54 F.3d 634, 636

(10th Cir. 1995).

      Terrell complains that Bailiff’s questioning without the presence of

Terrell’s appointed law yer on the state cocaine possession charge, violated his

Sixth Amendment right to counsel. 3 The Sixth Amendment provides that “[i]n all

criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance

of Counsel for his defense.” In M ichigan v. Jackson, the Supreme Court held that

once the right to counsel has attached and been invoked, any subsequent waiver

during a police-initiated custodial interview is ineffective. 475 U.S. 625, 636

(1986). However, five years later, in M cNeil v. Wisconsin, the Court explained:

      The Sixth A mendment right [to counsel] . . . is offense specific. It
      cannot be invoked once for all future prosecutions, for it does not

      3
          The government suggests Terrell may not have preserved this issue because he
failed to lodge a contemporaneous objection to Bailiff’s testimony at trial. However, it
appears during a pre-trial conference defense counsel requested and was granted
preservation of this issue without contemporaneous objection.

                                           -6-
       attach until a prosecution is commenced, that is, at or after the
       initiation of adversary judicial criminal proceedings - whether by
       way of formal charge, preliminary hearing, indictment, information,
       or arraignment.

501 U.S. 171, 175 (1991) (citations and internal quotation marks omitted). The

Court added, “[J]ust as the right is offense specific, so also its M ichigan v.

Jackson effect of invalidating subsequent waivers in police-initiated interview s is

offense specific.” Id. As a result, the Court held a defendant's statements to

police officers regarding uncharged offenses were admissible notwithstanding the

attachment of the Sixth Amendment right to counsel on other charged offenses.

Id. at 176.

       In Texas v. Cobb, the Court considered “whether the Sixth Amendment

right to counsel extends to crimes that are ‘factually related’ to those that have

actually been charged . . . .” 532 U.S. 162, 167 (2001). In Cobb, the defendant

admitted to the commission of a home burglary but denied any knowledge of the

disappearance of a woman and child who lived in the home. After being charged

with burglary and having counsel appointed, the defendant told his father he had

murdered the woman and child. W hen the father shared this information with

police, the officers interviewed the defendant regarding both incidents, resulting

in the defendant’s confession to the murders. Id. at 165. On appeal, he argued

that his confession should have been suppressed because his counsel for the

burglary charge was not notified of the interview. Id. at 166.



                                          -7-
      The Court rejected the “factually related” test and held the right to counsel

only attaches to uncharged offenses that constitute the "same offense" as the one

for w hich the accused has been formally charged. Id. at 172-73. The Court

applied the double jeopardy "same offense" test, first articulated in Blockburger v.

United States, 284 U.S. 299, 304 (1932), to determine whether two state offenses

were the same for purposes of the Sixth Amendment right to counsel. Cobb, 532

U.S. at 173. Under the Blockburger test, “where the same act or transaction

constitutes a violation of two distinct statutory provisions, [it is one offense

unless] each provision requires proof of an additional fact which the other does

not.” Blockburger, 284 U.S. at 304. Once the Sixth Amendment right to counsel

attaches, the right includes offenses which would be considered the same offense

under the Blockburger test, even though the additional offenses are uncharged.

Cobb, 532 U.S. at 173.

      In the instant case, the parties agree and the district court concluded the

state charge of possession of cocaine with the intent to distribute would be the

same offense as Count One of the federal indictment under the Blockburger test.

Thus, Terrell contends Cobb precludes the introduction of his statements at his

trial on Count One of the indictment. He further claims that because Count Two,

conspiracy to possess with intent to distribute, incorporates every element of the

underlying offense, the conspiracy is also the “same offense” under Blockburger.

The government disagrees, claiming the requirement of an agreement under the

                                          -8-
conspiracy count renders the two charges separate offenses. Therefore, according

to the government, Terrell’s Sixth Amendment right had not attached as to the

conspiracy count at the time Bailiff conducted his interview.

       W e agree with the government. It is well-settled “that a substantive crime

and a conspiracy to commit that crime are not the ‘same offence’ for double

jeopardy purposes.” United States v. Felix, 503 U.S. 378, 389 (1992). A

conspiracy charge requires only proof of an agreement to commit the offense, not

possession of an illegal substance. 4 On the other hand, a possession charge

requires (obviously) proof of possession, and no proof of an agreement is

necessary. 5 Therefore, the Blockburger test requiring each charge to contain a

separate proof of fact is satisfied here. 6 In addition, Bailiff’s purpose was not to


       4
         “A conspiracy in violation of 21 U.S.C. § 846 consists of four elements[:] . . . (1)
an agreement with another person to violate the law, (2) knowledge of the essential
objectives of the conspiracy, (3) knowing and voluntary involvement, and (4)
interdependence among the alleged conspirators.” United States v. Williams, 374 F.3d
941, 949 n.10 (10th Cir. 2004) (quoting United States v. Dozal, 173 F.3d 787, 797 (10th
Cir. 1999)).
       5
          “To establish a violation of 21 U.S.C. § 841(a)(1), the Government must prove
the defendant: (1) possessed the controlled substance; (2) knew he possessed the
controlled substance; and (3) intended to distribute or dispense the controlled substance.”
United States v. Bowen, 437 F.3d 1009, 1014 (10th Cir. 2006) (quoting United States v.
McKissick, 204 F.3d 1282, 1291 (10th Cir. 2000)).
       6
         Accordingly, we need not reach the government’s invitation to apply "the dual
sovereignty doctrine," wherein double jeopardy is not invoked when a defendant's
conduct violates the laws of two separate sovereigns. See, e.g., Heath v. Alabama, 474
U.S. 82, 87-93 (1985); Abbate v. United States, 359 U.S. 187 (1959) (holding that a
federal prosecution is not barred by a prior state prosecution of the same person for the
same acts).

                                             -9-
question Terrell regarding the possession charge. Rather, the point of his

investigation was to discover the existence and extent of a conspiracy. Although

Bailiff stated he would have also liked Terrell to admit to knowledge and

possession of the drugs, we agree with the district court this inquiry is analogous

to the situation in Cobb. As the district court noted, “in order to get to the

murders that were being investigated, the officers [in Cobb] had to question the

defendant about the burglary for which he was then represented by counsel.”

(V ol. 1, Doc. 132 at 8); see Cobb, 532 U.S. at 169-71. Similarly, Bailiff had to

question Terrell about his possession of the drugs in order to get to the

conspiracy. Consequently, while Terrell’s statements might be inadmissible at his

trial on the state possession charge, his Sixth Amendment right to counsel was not

violated in this case.

      B.     Adjustment Under U SSG §3B1.2

      Terrell argues the district court erred in denying his request for a base

offense level reduction under §3B1.2 of the Guidelines on the ground he was

either a minimal or a minor participant. To determine w hether the district court

erred in its application of the Guidelines, we review the district court's factual

findings for clear error and its legal conclusions regarding the application of the

guidelines de novo. United States v. M ares, 441 F.3d 1152, 1159-60 (10th Cir.

2006). “A trial court's findings concerning a defendant's role in a particular

offense are treated by an appellate court as factual findings, which are subject to

                                         -10-
deferential review under the clearly erroneous standard.” United States v.

Santistevan, 39 F.3d 250, 253 (10th Cir. 1994) (quotations and citations omitted).

A district court's finding of fact will stand unless it is “without factual support in

the record, or if after reviewing the evidence we are left with the definite and firm

conviction that a mistake has been made.” Id. at 253-54 (citations and quotations

omitted ). “It is the defendant's burden to establish, by a preponderance of the

evidence, his entitlement to an offense level reduction under § 3B1.2.” Id. at 254.

      The district court may grant a base offense level reduction if it finds a

defendant relatively less culpable than other participants in the offense. 7 USSG

§3B1.2. It allows the court to consider a four level decrease in the offense level

for “minimal” participation and a two level decrease for a “minor” participant,

with the option of awarding a three level decrease for those “falling between.”

USSG §3B1.2(a), (b). Application note 4 to §3B1.2 provides that a “minimal

participant” “is intended to cover defendants who are plainly among the least

culpable of those involved in the conduct of a group” and is an adjustment to be

“used infrequently.” A pplication note 5 explains that a “minor participant” is

“one w ho is less culpable than most other participants.” Application note 3(A )




      7
         We apply the November 1, 2002 edition of the Sentencing Guidelines Manual.
Terrell was arrested on November 5, 2002. The guidelines in effect on the date of arrest
limited the base offense level in the case of a minor or minimal participant to 30. See
USSG §2D1.1(a)(3) (2002). This beneficial limitation was eliminated from the
Guidelines via Amendment 668 effective November 1, 2004.

                                          -11-
states the adjustments are generally “for a defendant . . . [w ho is] substantially

less culpable than the average participant.”

      In the present case, Terrell claims the district court erred in failing to

compare his culpability with that of the conspiracy’s distributors. He also claims

there is no evidence to support the district court’s finding that he recruited

another driver, removing him from the least culpable in that category of

participants. Terrell is correct. There is no evidence to support he recruited

another driver. However, the district court found “even without [the] additional

act or participation of recruiting . . . [Terrell] would be equally culpable.” (Vol.

11 at 7-8). W e find no error in the district court’s conclusion. Even if Terrell

was merely a driver or courier, our precedents reject the argument that this fact

alone compels the district court to grant a base offense level reduction under

§3B1.2. See M ares, 441 F.3d at 1159-60; United States v. Salazar-Samaniega,

361 F.3d 1271, 1277-78 (10th Cir.), cert. denied, 543 U.S. 59 (2004); United

States v. Lockhart, 37 F.3d 1451, 1455 (10th Cir. 1994). Terrell cites no case law

to the contrary.

      W hile Terrell attempts to place himself in the shadow of the lead

participants in the drug conspiracy, his actions evidence more than a one or two

time, poorly paid, short turn-around delivery. W e recently considered the same

argument Terrell presents here. In M ares, the defendant was arrested twice for

bringing marijuana, hidden in the gas tank of a car, over the border in New

                                          -12-
M exico and Texas and allegedly traveling to the Ruidoso, New M exico, area.

M ares, 441 F.3d at 1155. Although the defendant argued she did not know of the

presence of the drugs in the first instance and was forced to transport the drugs at

the time of her second arrest, the district court refused to decrease her offense

level pursuant to her role as a minor participant. The district court noted its

tendency to consider a decrease w hen the drugs were transported in “a very short

turn-around trip for which [the defendant is] usually not paid very much” but

found, “[i]n this instance there is more planning than is normal, and for that

reason I don't think that minor participation is appropriate.” Id. at 1160. W e

affirmed, concluding, “[w]hen combined with the evidence that she had been

‘hired’ for the 2002 drug run, the court did not err in finding the minor participant

adjustment inapplicable.” Id.

       Here, Terrell is clearly not a “minimal participant.” The evidence

established repeated instances of his involvement in delivering controlled

substances from Las Vegas, Nevada, to the St. Louis, M issouri, area. Nor is he

substantially less culpable than the average participant. The documentary

evidence at trial established at least five trips between Las V egas and St. Louis

carrying approximately five kilograms of cocaine. Terrell received $700.00 to

$1,000.00 per trip. In addition, the drugs were found carefully hidden in the door

compartment of the rented van, evidence of studied planning. Finally, the

frequent telephone calls between the conspirators and Terrell’s home demonstrate

                                         -13-
his “knowledge . . . concerning the scope and structure of the enterprise and the

activities of others involved in the offense.” United States v. Calderon-Porras,

911 F.2d 421, 423 (10th Cir. 1990). The district court did not abuse its discretion

in denying Terrell a minor participant adjustment.

C.    Ex Post Facto Clause and D ue Process

      After Terrell committed the federal offenses, but prior to sentencing, the

Supreme Court issued its decision in United States v. Booker, 543 U.S. 220

(2005). In Booker, one majority held that under the Sixth Amendment “[a]ny fact

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

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

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

doubt.” Id. at 244. A second majority issued Booker’s “remedial” holding,

“correct[ing] the Sixth Amendment error created through mandatory application

of the Sentencing Guidelines by severing the statutory section that required

district courts to sentence within the Guidelines range.” United States v. Payton,

405 F.3d 1168, 1172-73 (10th Cir. 2005) (citing Booker, 543 U .S. at 245). As a

result, after Booker, the guidelines are still in effect, but merely advisory.

      Terrell wants it both w ays. He contends Booker's constitutional holding —

mandatory enhancements based on judge-found facts violate the Sixth

Amendment — applies to his case. However, he also argues that applying the

remedial holding and allowing the district court to sentence him based on judge-

                                          -14-
found facts under an advisory guideline scheme for an offense that pre-dated

Booker would violate the Ex Post Facto C lause. He claims the district court’s

consideration of eighty-six kilograms of cocaine (an amount not found by the

jury) is error. Article I of the United States Constitution provides that neither

Congress nor the states shall pass an “ex post facto Law.” See U.S. Const. art. I,

§ 9, cl. 3; art. I, § 10, cl. 1. Although the Ex Post Facto Clause limits the

legislature instead of the judiciary, “limitations on ex post facto judicial

decisionmaking are inherent in the notion of due process.” Rogers v. Tennessee,

532 U.S. 451, 456 (2001). “An Ex Post Facto violation occurs only when a law

retroactively alters the definition of crimes or increases the punishment for

criminal acts.” United States v. Andrews, 447 F.3d 806, 809 (10th Cir. 2006)

(internal quotation and citation omitted). W e easily dispose of Terrell’s argument

as every circuit, including this one, has considered and rejected it. United States

v. Rines, 419 F.3d 1104, 1106-07 (10th Cir. 2005) (“W e decline Defendant's

invitation to hold that the Supreme Court ordered us to violate the Constitution . .

. . The only difference between the Booker regime under which his sentence is




                                          -15-
determined and the regime he would have anticipated at the time of his offense is

that the guidelines are not mandatory.”), cert. denied, 126 S. Ct. 1089 (2006). 8

A FFIRME D.

                                         Entered by the C ourt:

                                         Terrence L. O ’Brien
                                         United States Circuit Judge




      8
          See also United States v. Perez-Ruiz, 421 F.3d 11, 15 (1st Cir. 2005), cert.
denied, 126 S.Ct. 1092 (2006); United States v. Fairclough, 439 F.3d 76, 79 (2d Cir.),
cert. denied, 126 S.Ct. 2915 (2006); United States v. Pennavaria, 445 F.3d 720, 724 (3d
Cir. 2006); United States v. Davenport, 445 F.3d 366, 369 (4th Cir. 2006); United States
v. Charon, 442 F.3d 881, 893 (5th Cir. 2006); United States v. Richardson, 437 F.3d 550,
555 (6th Cir. 2006); United States v. Hale, 448 F.3d 971, 988 (7th Cir. 2006); United
States v. Counce, 445 F.3d 1016, 1019 (8th Cir. 2006); United States v. Staten, 450 F.3d
384, 389 (9th Cir. 2006); United States v. Thomas, 446 F.3d 1348, 1354 (11th Cir. 2006);
United States v. Alston-Graves, 435 F.3d 331, 343 (D.C. Cir. 2006).

                                          -16-
