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

                                                 FILED
                                                                      September 18, 2009

                                      No. 09-30006                   Charles R. Fulbruge III
                                                                             Clerk

UNITED STATES OF AMERICA

                                                 Plaintiff-Appellee

v.

JOSEPH EARL ROBINSON

                                                 Defendant-Appellant




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 3:08-cr-00024


Before JOLLY, DeMOSS, and PRADO, Circuit Judges.
PER CURIAM:*


       Appellant Joseph Earl Robinson was convicted of, among other crimes, one
count of conspiracy to possess with intent to distribute cocaine base in violation
of 21 U.S.C. §§ 841(a) and (b)(1)(A) and 846. Robinson timely moved to acquit
on this count, arguing that under Federal Rule of Criminal Procedure 29 the




       *
         Under 5TH CIR . R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                      No. 07-60495

government had presented insufficient evidence to support the conviction. The
district court denied the motion.
        The jury convicted Robinson on all counts. At sentencing, the district
court    calculated   a   Guidelines    sentencing   range   of   121-151   months’
imprisonment. But because Robinson had a prior felony drug conviction, he was
subject to a mandatory minimum sentence of 240 months’ imprisonment under
21 U.S.C. § 841(b)(1)(A). Thus, the district court sentenced him to 240 months’
imprisonment.
        On appeal, Robinson argues that the district court erred in denying his
Rule 29 motion and that the application of the statutory mandatory minimum
sentence of 240 months’ imprisonment violated his Fifth and Fourteenth
Amendment rights to substantive due process and to a judicial determination of
the reasonableness of his sentence. After considering the parties’ arguments, we
affirm the district court’s ruling.
             I. FACTUAL AND PROCEDURAL BACKGROUND
        After an investigation by the Madison Parish Sheriff’s Office and the
Louisiana State Police, Robinson was arrested and charged with one count of
conspiracy to possess with intent to distribute fifty grams or more of cocaine
base, in violation of 18 U.S.C. §§ 841(a) and (b)(1)(A) and 846 (Count 1); seven
counts of possession with intent to distribute cocaine base, in violation of 21
U.S.C. § 841(a) and (b)(1)(A) and (B) (Counts 2-8); and one count of forfeiture as
a result of a drug distribution offense, in violation of 21 U.S.C. § 853 (Count 9).
Before trial, the government filed a motion for enhancement of penalties under
21 U.S.C. § 851 based on Robinson’s prior conviction of a drug trafficking offense.
Over Robinson’s objection, the district court granted the motion.
        At trial, the government presented the testimony of Louisiana State Police
Senior Trooper Randy Almond, the lead agent on Robinson’s case. Almond
testified that officers used a confidential informant (“CI”) to buy about five

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                                  No. 07-60495

grams of crack from Robinson on eight separate occasions. The CI testified that
Robinson’s nephew Andrew L. Coleman, known as “Lucky,” participated in the
purchases on two occasions. Once, as the CI passed in front of Robinson’s home,
Lucky flagged her down to give her the drugs, although the CI was not sure
whether Robinson or Lucky actually handed her the drugs. Another time, Lucky
came to the CI’s house and gave her the crack that she had requested from
Robinson.
      The government also produced evidence that an unnamed and unindicted
individual was Robinson’s supplier in Monroe, Louisiana. The CI testified that
Robinson told her his supplier wanted only twenties and larger bills, not fives
or tens.    Trooper Steve Wallace, who participated in the investigation of
Robinson, testified that Robinson admitted to buying crack at least twice from
the same supplier.
      Almond testified that officers suspected Robinson would be receiving more
drugs from his supplier. Trooper Chris Jordan testified that officers surveilled
Robinson as he and an unidentified passenger drove to a house in Monroe.
Robinson parked and entered the house, leaving the passenger in his vehicle.
A few minutes later, Robinson returned to the vehicle and put something under
the seat. After Robinson left the house in Monroe, officers arranged a traffic stop
of Robinson’s vehicle.
      Trooper Michael Bickford testified that when Robinson refused to consent
to a search, officers called a canine unit. The canine unit alerted to the vehicle,
and a search revealed a package of suspected crack cocaine under the seat.
Later analysis showed that the package contained about 327.5 grams of crack
cocaine.
      After presentation of all of the evidence during a three-day trial, Robinson
moved for a judgment of acquittal as to the conspiracy charged in Count 1,
arguing that the government had presented insufficient evidence under Rule 29.

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The district court denied Robinson’s motion, and the jury found Robinson guilty
on all counts.
      At sentencing, the district court assigned Robinson an offense level of 32
with a criminal history category of I, yielding a Guidelines range of 121-151
months’ imprisonment. The district court also found that Robinson had a prior
drug trafficking felony conviction, that the conviction was final, and that the
government had properly filed a motion before trial under 21 U.S.C. § 851 to
include the conviction for sentencing purposes. Under 21 U.S.C. § 841(b)(1)(A),
Robinson’s statutory mandatory minimum sentence became 240 months’
imprisonment.     The district court sentenced Robinson to 240 months’
imprisonment, followed by ten years of supervised release on Counts 1 and 2 and
eight years on Counts 3-8, all sentences to run concurrently. The district court
overruled Robinson’s constitutional objections to the enhanced sentence.
Robinson timely filed a notice of appeal.
      We have jurisdiction over this appeal of the district court’s final judgment
under 18 U.S.C. § 3742 and 28 U.S.C. § 1291.
                                II. ANALYSIS
A.    The Rule 29 motion for judgment of acquittal
      1.     Standard of review
      We review de novo a district court’s denial of a motion for judgment of
acquittal.   United States v. Burns, 162 F.3d 840, 847 (5th Cir. 1998).       “In
evaluating the sufficiency of the evidence we must affirm the verdict ‘if a
reasonable trier of fact could conclude from the evidence that the elements of the
offense were established beyond a reasonable doubt, viewing the evidence in the
light most favorable to the verdict and drawing all reasonable inferences from
the evidence to support the verdict.’” Id. (quoting United States v. Myers, 104
F.3d 76, 78 (5th Cir. 1997)). “The evidence does not need to exclude every
reasonable hypothesis of innocence; the jury is free to choose among reasonable
interpretations of the evidence.” United States v. Perrien, 274 F.3d 936, 939-40


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(5th Cir. 2001) (citations omitted). We must accept “[a]ll reasonable inferences
and credibility choices which support the jury’s verdict.”       United States v.
Gonzales, 866 F.2d 781, 783 (5th Cir. 1989).
      The jury “is the final arbiter of the credibility of witnesses.” United States
v. Bermea, 30 F.3d 1539, 1552 (5th Cir. 1994). A guilty verdict based on a
witness’s testimony may be sustained unless that witness’s testimony is
“incredible as a matter of law.” Id. For testimony to be incredible as a matter
of law, it must relate to “facts that the witness could not possibly have observed
or to events which could not have occurred under the laws of nature.” Id.
      2.    Analysis
      Rule 29(a) says, “After the government closes its evidence or after the close
of all the evidence, the court on the defendant’s motion must enter a judgment
of acquittal of any offense for which the evidence is insufficient to sustain a
conviction.” In this case, Robinson moved the district court for judgment of
acquittal only as to Count 1, which charged Robinson with conspiracy to possess
cocaine base with intent to distribute. To convict a defendant of conspiracy to
possess a controlled substance with intent to distribute, the government must
present sufficient evidence that the defendant: (1) agreed with at least one other
person, (2) to possess the controlled substance with the intent to distribute, (3)
knew the conspiracy existed, and (4) intentionally participated in the conspiracy.
United States v. Rena, 981 F.2d 765, 771 (5th Cir. 1993).
      The government presented sufficient evidence to establish a conspiracy
between Robinson and Lucky. The government presented evidence that Lucky
participated in drug sales with Robinson on at least two occasions. In his brief,
Robinson notes that the CI did not remember whether Lucky or Robinson
actually handed her the drugs on one of these occasions. Robinson argues that
because the CI did not remember, the evidence is not sufficient to show that
Lucky knowingly participated in the transaction. But it does not matter who




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actually handed the drugs to the CI. All that matters is whether the government
presented sufficient evidence of a conspiracy. It did.
      The government also presented sufficient evidence of a conspiracy between
Robinson and his supplier.     Robinson argues that the government did not
introduce evidence that anyone in the house in Monroe participated in a
conspiracy with Robinson.     Further, Robinson claims that the government
defines “conspiracy” so broadly as to include anyone who ever bought or sold
drugs, regardless of the circumstances.
      Robinson overstates the government’s position. The government does not
argue that simply buying drugs constitutes a conspiracy.           Instead, the
government argues that in this case, evidence shows that Robinson had an
ongoing relationship with a supplier. This evidence, although weaker than the
evidence of a conspiracy between Robinson and Lucky, is sufficient for a
reasonable jury to conclude that Robinson and his supplier agreed to possess
crack cocaine with the intent to distribute and that Robinson knowingly and
intentionally participated in the conspiracy.
      “[V]iewing the evidence in the light most favorable to the verdict and
drawing all reasonable inferences from the evidence to support the verdict,”
Burns, 162 F.3d at 847 (internal quotation marks omitted), a reasonable trier of
fact could conclude that the government established the elements of Count 1
beyond a reasonable doubt as to conspiracies between Robinson and Lucky, and
between Robinson and his supplier. Accordingly, we hold that the government
presented sufficient evidence on which the district court could base a denial of
Robinson’s Rule 29 motion for judgment of acquittal on Count 1.
B.    The statutory mandatory minimum in 21 U.S.C. § 841(b)(1)(A)
      We review de novo constitutional questions and issues of statutory
interpretation. United States v. Perez-Macias, 335 F.3d 421, 425 (5th Cir. 2003).
Our review of a defendant’s sentence is bifurcated. Gall v. United States, 128 S.
Ct. 586, 597 (2007).    First, we must consider whether the district court


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committed a “significant procedural error.” Id. Second, if “the district court’s
sentencing decision is procedurally sound, [we] should then consider the
substantive reasonableness of the sentence imposed under an abuse-of-discretion
standard.” Id.
      Robinson does not assert that the district court committed a procedural
error, so we proceed to step two.      Robinson argues that the congressional
imposition of a statutory mandatory minimum sentence under § 841(b)(1)(A),
which is greater than the entire Guidelines range, violates his substantive due
process rights under the Fifth and Fourteenth Amendments. Robinson also
argues that the statutory mandatory minimum deprives him of the right to a
judicial determination of the reasonableness of his sentence. We address these
arguments in turn.
      First, Robinson argues that the § 841(b)(1)(A) mandatory minimum
sentence deprives him of his substantive due process rights. The Supreme Court
rejected a similar argument in Almendarez-Torres v. United States, 523 U.S. 224
(1998), which confirmed that the enhanced mandatory minimum sentences for
recidivists in 21 U.S.C. § 841(b)(1)(A)-(D) are constitutional sentencing
provisions. Id. at 230. The Court observed that “the lower courts have almost
uniformly interpreted statutes (that authorize higher sentences for recidivists)
as setting forth sentencing factors, not as creating new crimes (at least where
the conduct, in the absence of the recidivism, is independently unlawful).” Id.
The Court agreed with the lower courts, explaining that “recidivism,” or “prior
commission of a serious crime,” is “as typical a sentencing factor as one might
imagine.” Id. The Court explained that a statute like § 841(b)(1)(A) which “did
not ‘alter[] the maximum penalty for the crime’ but ‘operates solely to limit the
sentencing court’s discretion in selecting a penalty within the range already
available to it’” does not create a separate element or violate due process. Id. at
243 (quoting McMillan v. Pennsylvania, 477 U.S. 79, 87-88 (1986) (alteration in
original)); see also Mistretta v. United States, 488 U.S. 361, 364 (1989)


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(“[Congress] has the power to fix the sentence for a federal crime, and the scope
of judicial discretion with respect to a sentence is subject to congressional
control.”). Section 841(b)(1)(A) does not violate Robinson’s due process rights.
      In addition, Robinson argues that congressionally-imposed mandatory
minimum sentences prevent district courts from setting reasonable sentences.
Like Robinson’s previous argument, this argument is precluded by Almendarez-
Torres, 523 U.S. at 230, which confirmed the constitutionality of § 841(b)(1)(A)-
(D)’s enhanced mandatory minimum sentences for recidivists. In an effort to
support his argument, Robinson quotes Gall and United States v. Booker, 543
U.S. 220 (2005). But Gall and Booker do not support Robinson’s argument. Gall
and Booker discuss a reasonableness test that is used to determine whether a
court has abused its discretion in setting a sentence. Gall, 128 S. Ct. at 594 (“As
a result of our decision [in Booker], the Guidelines are now advisory, and
appellate review of sentencing decisions is limited to determining whether they
are ‘reasonable.’” ); Booker, 543 U.S. at 268 (“[W]hether it will [] be sufficient to
review a sentence for reasonableness may depend upon application of the
harmless-error doctrine.”). This is a different issue entirely.
      We hold that the application of the statutory mandatory minimum in 21
U.S.C. § 841(b)(1)(A) does not violate Robinson’s Fifth and Fourteenth
Amendment rights to substantive due process or to a judicial determination of
the reasonableness of his sentence.
                               III. CONCLUSION
      For the reasons herein, we AFFIRM the district court’s denial of
Robinson’s Rule 29 motion for judgment of acquittal on Count 1, and we hold
that the application of the statutory mandatory minimum sentence in 21 U.S.C.
§ 841(b)(1)(A) does not violate Robinson’s Fifth and Fourteenth Amendment
rights to substantive due process or to a judicial determination of the
reasonableness of his sentence.
      AFFIRMED.


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