     Case: 13-40510      Document: 00512533449         Page: 1    Date Filed: 02/14/2014




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


                                      No. 13-40510
                                                                            FILED
                                                                     February 14, 2014
                                                                        Lyle W. Cayce
UNITED STATES OF AMERICA,                                                    Clerk

                                                 Plaintiff - Appellee
v.

GEARY MOHAMMED MILLS,

                                                 Defendant - Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:10-CR-65-8


Before JONES, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
       A jury convicted Geary Mohammed Mills of conspiring to possess with
the intent to distribute 210 grams or more of a substance containing a
detectable amount of “Ecstasy,” in violation of 21 U.S.C. §§ 841(a)(1), 846 and
possessing a firearm in furtherance of a drug trafficking crime in violation of
18 U.S.C. § 924(c).       The district court sentenced Mills to 248 months of
imprisonment. Mills appeals his conviction and sentence. We AFFIRM.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 13-40510     Document: 00512533449     Page: 2   Date Filed: 02/14/2014


                                  No. 13-40510

                                 I. Background
      Law enforcement officers arrested Mills without a warrant after
codefendant Lamon Donnell—who had been recently arrested as a part of an
extensive    Ecstasy     trafficking   investigation—provided      incriminating
information about Mills and called Mills to set up a purported drug
transaction. From their investigation, officers knew that Donnell distributed
Ecstasy to numerous individuals, although they did not have any prior
information on Mills. When Mills arrived at the agreed-upon location in the
car predicted by Donnell, officers arrested him. A search of Mills’s person
revealed a 9-millimeter handgun in his waistband, and a search of his car
revealed approximately $20,000 and ammunition for the handgun. According
to officers, Mills then waived his Miranda rights and confessed that he was
there to purchase Ecstasy from Donnell.
      A federal grand jury indicted Mills and ten other individuals on one
count of conspiring to possess with the intent to distribute 210 grams or more
of a substance containing a detectable amount of Ecstasy in violation of 21
U.S.C. §§ 841(a)(1), 846. The indictment further alleged that Mills knowingly
possessed a firearm in furtherance of a drug trafficking crime in violation of 18
U.S.C. § 924(c).     Mills was the only defendant charged with the firearm
possession count. Mills pleaded not guilty, while his codefendants pleaded
guilty. Prior to trial, Mills filed a motion to suppress his confession and the
evidence discovered at the time of his arrest on the ground that they were the
fruit of a warrantless arrest made without probable cause. The district court
denied the motion.
      At trial, numerous individuals testified regarding Mills’s participation in
the Ecstasy trafficking conspiracy. Donnell testified that in October 2009, he
received a shipment of approximately 300,000 tablets of Ecstasy from a
Canadian supplier. Donnell also testified that in December 2009, the owner of

                                        2
    Case: 13-40510    Document: 00512533449      Page: 3   Date Filed: 02/14/2014


                                 No. 13-40510

Club Iniquity introduced Mills to Donnell so that Mills could supply Ecstasy
for the club’s patrons. After an initial meeting, Mills began buying Ecstasy
from Donnell.    This continued on a weekly basis for approximately three
months, up until the night when the two were arrested. Donnell estimated
that he sold approximately 120,000 tablets of Ecstasy to Mills.            While
testimony revealed that Mills’s resale of the Ecstasy occurred independently of
the other codefendants, codefendant Charles Duffy testified that Mills would
sometimes come over to Donnell’s house, where Donnell’s large shipment of
Ecstasy was stored, and that they would count Ecstasy tablets together.
Codefendants Chris Brown, Josh Willsie, Jeremiah Sala, and Chrystopher
Persheff testified that they met Mills at Donnell’s house under similar
circumstances. The codefendants further testified that Mills was Donnell’s
largest seller of Ecstasy. There was also testimony from law enforcement
regarding the night of Mills’s arrest and from individuals who stated that Mills
had talked to them while in jail about his Ecstasy distribution activities.
      The jury found Mills guilty of both counts of the indictment. Mills filed
a timely post-trial motion for judgment of acquittal, which the district court
denied. Mills also filed a motion for a new trial based on “newly discovered
evidence” (Donnell’s unsuccessful motion to withdraw his guilty plea), which
the district court likewise denied. The district court sentenced Mills to 188
months of imprisonment for the conspiracy count and 60 consecutive months
of imprisonment for the firearm count. Mills timely appealed.
                                II. Discussion
A. Mills’s Motion to Suppress
      Mills contends that officers lacked probable cause to arrest him because
their knowledge regarding him came from Donnell, a first time informant. He
therefore argues that the district court erred in denying his motion to suppress
the evidence obtained as the fruit of his arrest. When reviewing the district

                                       3
    Case: 13-40510     Document: 00512533449       Page: 4     Date Filed: 02/14/2014


                                   No. 13-40510

court’s denial of Mills’s motion to suppress, we review legal issues de novo and
findings of fact for clear error, viewing all evidence in the light most favorable
to the Government. United States v. Powell, 732 F.3d 361, 369 (5th Cir. 2013).
We may affirm the district court on any basis established by the record. Id.
      If a warrantless arrest is not based on probable cause, the evidence
discovered as a result of the arrest is subject to suppression as the “‘fruit’ of an
illegal arrest.” United States v. Wadley, 59 F.3d 510, 512 (5th Cir. 1995).
Probable cause exists when the totality of the facts and circumstances are
sufficient for a reasonable person to conclude that the suspect committed an
offense or was in the process of committing an offense. United States v. Ochoa,
667 F.3d 643, 649 (5th Cir. 2012). It is a “fair probability” determination,
which requires more than a bare suspicion but less than a preponderance of
the evidence. United States v. Garcia, 179 F.3d 265, 269 (5th Cir. 1999).
Where, as here, an informant’s tip is used to supply probable cause, the
informant’s veracity and basis of knowledge should be considered within the
totality of the circumstances; although, a deficiency in either may be
compensated for by a strong showing as to the other, or by other indicia of
reliability. See Illinois v. Gates, 462 U.S. 213, 233 (1983); cf. United States v.
Delario, 912 F.2d 766, 768 (5th Cir. 1990) (“[P]rior performance [of an
informant] is not the only indicia of reliability.”).
      We have reviewed the evidence presented to the district court regarding
Donnell, the basis for his knowledge, corroboration of his information, and
other indicia of reliability the officers had. We conclude that the totality of the
facts and circumstances within the officers’ knowledge was sufficient for a
reasonable person to believe that Mills was in the process of committing a drug
trafficking offense.   See Ochoa, 667 F.3d at 649.           The evidence obtained
pursuant to Mills’s arrest was not subject to suppression.



                                         4
    Case: 13-40510       Document: 00512533449   Page: 5   Date Filed: 02/14/2014


                                  No. 13-40510

B. Evidence of Other Drugs
      At trial, a DEA agent and a detective testified about the search of
Donnell’s stash house, where they found Ecstasy, methamphetamine, and
cocaine.   The Government then offered exhibits of the drugs and drug
paraphernalia found at the house and testimony from Donnell about selling
methamphetamine and cocaine. Mills’s counsel did not object to the testimony,
and he affirmatively stated that he had no objection to the admission of the
exhibits; he also elicited information about these drugs through cross-
examination and used this evidence in closing arguments to argue against
Donnell’s credibility.
      Mills now argues that the district court erred in allowing admission of
the testimony and evidence of other drugs. Because he affirmatively stated at
trial that he had no objection and then used the testimony and evidence to his
benefit, his argument now is arguably waived. See United States v. Andino-
Ortega, 608 F.3d 305, 308 (5th Cir. 2010) (“A waiver occurs by an affirmative
choice by the defendant to forego any remedy available to him, presumably for
real or perceived benefits resulting from the waiver.” (citation and internal
quotation marks omitted)). Even if we were to conclude that the error was only
forfeited, review would be for plain error. See United States v. Garcia, 567 F.3d
721, 726 (5th Cir. 2009).      Because Mills has not satisfied “his burden of
demonstrating the requisite prejudice,” he has failed to show plain error
warranting reversal. See id. at 726–27.
C. Sufficiency of the Evidence to Support Mills’s Conspiracy Conviction
      In the district court, Mills filed a timely post-trial motion for judgment
of acquittal under Federal Rule of Criminal Procedure 29(c), arguing that there
was insufficient evidence to sustain a conspiracy conviction against him and,
alternatively, that the evidence demonstrated at most multiple conspiracies.
Mills reasserts both arguments on appeal. Since Mills raised these issues

                                        5
    Case: 13-40510     Document: 00512533449     Page: 6   Date Filed: 02/14/2014


                                  No. 13-40510

before the district court, we consider them de novo. See United States v.
Thomas, 690 F.3d 358, 366 (5th Cir.), cert. denied, 133 S. Ct. 673 (2012).
      When reviewing the sufficiency of evidence underlying a conviction, we
consider whether, “after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,
319 (1979); see also Thomas, 690 F.3d at 366. Likewise, when reviewing the
sufficiency of the evidence to support a single-conspiracy finding, the analysis
is whether “the evidence and all reasonable inferences, examined in the light
most favorable to the government, would preclude reasonable jurors from
finding a single conspiracy beyond a reasonable doubt.”         United States v.
Mitchell, 484 F.3d 762, 769 (5th Cir. 2007) (quoting United States v. Morris, 46
F.3d 410, 415 (5th Cir. 1995)) (internal quotation marks omitted).
      The elements of a conspiracy under 21 U.S.C. § 846 are “(1) an agreement
existed between two or more persons to violate federal narcotics law, (2) the
defendant knew of the existence of the agreement, and (3) the defendant
voluntarily participated in the conspiracy.” Thomas, 690 F.3d at 366 (quoting
Ochoa, 667 F.3d at 648) (internal quotation marks omitted). The essence of
the crime of conspiracy is the agreement to commit an unlawful act. Iannelli
v. United States, 420 U.S. 770, 777 (1975). The agreement need not be explicit,
but can inferred from the facts and circumstances of the case. Id. at 777 n.10.
      When viewed in the light most favorable to the Government, the
extensive evidence presented at trial would allow a rational trier of fact to find
beyond a reasonable doubt that Mills knowingly participated in a conspiracy
to distribute drugs.   See, e.g., Thomas, 690 F.3d at 366; United States v.
Delgado, 672 F.3d 320, 334 (5th Cir.) (en banc) (noting that a large quantity of
drugs can serve as evidence of a conspiracy), cert. denied, 133 S. Ct. 525 (2012);
United States v. Olguin, 643 F.3d 384, 394 (5th Cir. 2011).

                                        6
    Case: 13-40510     Document: 00512533449     Page: 7   Date Filed: 02/14/2014


                                  No. 13-40510

      In addition, contrary to Mills’s primary argument, the evidence as a
whole demonstrates that the relationship between Donnell and Mills went well
beyond that of a “single buy-sell agreement.” Delgado, 672 F.3d at 333. The
jury could readily infer that their transactions were agreed upon, regular, and
over multiple months, having ended only at the instance of their arrest. Cf.
Thomas, 690 F.3d at 366 (observing that an indication of an ongoing, mutually
dependent relationship can be evidence of membership in a conspiracy). As in
Delgado, Mills’s argument in this regard “misunderstands the scope of the so-
called ‘buyer-seller exception’ in this circuit and ignores substantial evidence.”
672 F.3d at 333. The evidence against Mills supports a finding that he was a
distributor of drugs, not a mere acquirer or street-level user for which the rule
was intended. Id.
      Mills alternatively contends that the evidence was insufficient to prove
the single conspiracy charged in the indictment and, at most, the evidence
demonstrated two separate conspiracies: a two-man conspiracy involving
Donnell and Mills, and a multi-party conspiracy involving Donnell, Duffy, and
the other codefendants. To determine whether the evidence supports a single-
conspiracy finding, we look to: “(1) the existence of a common goal or purpose;
(2) the nature of the scheme; and (3) overlapping participants in various
dealings.” United States v. Franklin, 561 F.3d 398, 402 (5th Cir. 2009) (citation
and internal quotation marks omitted).         “This does not require that the
participants in the conspiracy know the other participants, nor that each
participate in every conspiracy action.” Id.
      This court has “adopted an expansive notion of a ‘common purpose.’”
Morris, 46 F.3d at 415. Here, the evidence is sufficient to allow a jury to find
that the defendants shared the common purpose to distribute Donnell’s large
shipment of Ecstasy for profit. See, e.g., Olguin, 643 F.3d at 394 (common
purpose to “distribut[e] drugs in the Dallas/Fort Worth area”); Mitchell, 484

                                        7
     Case: 13-40510      Document: 00512533449        Page: 8    Date Filed: 02/14/2014


                                     No. 13-40510

F.3d at 770 (common purpose “to derive personal gain from the sale of crack
cocaine in Paris[, Texas]”); Morris, 46 F.3d at 415 (common purpose “to derive
personal gain from the illicit business of buying and selling cocaine”).
      For the nature-of-the-scheme factor, the inquiry is whether “the
activities of one aspect of the scheme are necessary or advantageous to the
success of another aspect or to the overall success of the venture.” Mitchell,
484 F.3d at 770 (quoting Morris, 46 F.3d at 416) (internal quotation marks
omitted). In this case, although Mills did not jointly sell drugs with the other
sellers, each participant in the conspiracy was aware of the others’
involvement, with each aiding in the larger plan of distributing Donnell’s large
shipment of Ecstasy. See Morris, 46 F.3d at 416.
      The third factor examines the interrelationships among the participants
in the conspiracy. Mitchell, 484 F.3d at 770. Sufficient interrelationships are
shown where participants conspire with a pivotal member to carry out a
common goal. See id. (citing Morris, 46 F.3d at 416). In this case, Donnell was
that pivotal member with whom the other participants conspired.
      In light of the foregoing, we conclude that the evidence was sufficient to
allow reasonable jurors to find beyond a reasonable doubt that Mills knowingly
participated in the single conspiracy charged in the indictment. 1
D. Mills’s Motion for a New Trial
      After Mills’s trial, codefendant Donnell filled a pro se motion to withdraw
his guilty plea. In turn, Mills filed a motion for a new trial, arguing that
Donnell’s motion constituted newly discovered evidence that would likely
result in an acquittal if his case were retried.           The district judge denied
Donnell’s motion to withdraw his guilty plea because “he did not allege
sufficient facts which, if proven, would entitle him to the relief he requested.”


      1 We do not reach Mills’s venue argument because it is contingent on us finding that
the evidence was insufficient to support the single conspiracy charged in the indictment.
                                            8
     Case: 13-40510       Document: 00512533449          Page: 9     Date Filed: 02/14/2014


                                       No. 13-40510

Thereafter, the same district judge denied Mills’s motion for a new trial,
finding Mills’s argument moot in light of the court’s denial of Donnell’s motion
to withdraw his guilty plea. On appeal, Mills argues that the district court
abused its discretion in denying his motion for a new trial.
       Federal Rule of Criminal Procedure 33 allows a district court to grant a
new trial “if the interest of justice so requires.” FED. R. CRIM. P. 33(a). To
receive a new trial based on newly discovered evidence, a defendant must
demonstrate the following:
       (1) the evidence is newly discovered and was unknown to the
       defendant at the time of trial; (2) failure to detect the evidence was
       not due to a lack of diligence by the defendant; (3) the evidence is
       not merely cumulative or impeaching; (4) the evidence is material;
       and (5) the evidence introduced at a new trial would probably
       produce an acquittal.

United States v. Ebron, 683 F.3d 105, 157–58 (5th Cir. 2012) (citations and
internal quotation marks omitted), cert. denied, 134 S. Ct. 512 (2013). We
review a district court’s denial of a motion for a new trial based on newly
discovered evidence for abuse of discretion. Id. at 157.
       Mills describes Donnell’s Motion as a “recantation of his guilty plea.”
However, Donnell did not recant either his statements underlying his guilty
plea or his testimony at Mills’s trial. 2 He instead requested that he be allowed
to withdraw his guilty plea because he believed he received ineffective
assistance of counsel; the gist of his motion is that his attorney did not give



       2 Although Mills seeks a new trial based on Donnell’s motion, the parties do not cite
to the motion, and it is not included in the record on appeal. We take judicial notice of the
motion since it is a public record of the district court, which was before the district judge in
deciding Mills’s motion for a new trial. See ITT Rayonier Inc. v. United States, 651 F.2d 343,
345 n.2 (5th Cir. Unit B July 1981); cf. NCNB Tex. Nat’l Bank v. Johnson, 11 F.3d 1260, 1263
n.2 (5th Cir. 1994) (taking judicial notice of documents in the record of a companion case).
Furthermore, the parties had access to the motion and referred to it in their briefs, and
neither party objected to our taking judicial notice when we raised the issue at oral argument.


                                               9
    Case: 13-40510       Document: 00512533449         Page: 10     Date Filed: 02/14/2014


                                      No. 13-40510

due consideration to his various legal theories. 3 The motion is not traditional
recantation evidence, as it is not a statement by a witness that his prior
testimony was false. See, e.g., United States v. Gresham, 118 F.3d 258, 267
(5th Cir. 1997); United States v. Nixon, 881 F.2d 1305, 1311 (5th Cir. 1989);
United States v. Adi, 759 F.2d 404, 408 (5th Cir. 1985). The motion also does
not draw into question Donnell’s honesty or credibility as a witness.                     It
therefore is not newly discovered evidence relevant to Mills’s guilt or
innocence. What is more, Mills clearly fails to demonstrate that the purported
evidence is material and that it would probably produce an acquittal. The
district court did not abuse its discretion in denying the motion for new trial.
E. Mills’s Sentence
       We review sentencing decisions for reasonableness under an abuse-of-
discretion standard of review. Gall v. United States, 552 U.S. 38, 46 (2007).
We employ a bifurcated review process, first ensuring that “the district court
committed no significant procedural error, such as failing to calculate (or
improperly calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors, selecting a sentence based
on clearly erroneous facts, or failing to adequately explain the chosen
sentence.” Id. at 51. If no procedural error is found, we then consider the
substantive reasonableness of the sentence. Id.
       The district court calculated Mills’s base offense level by attributing to
him at least 120,000 tablets of Ecstasy. Mills argues that this was procedurally
unreasonable because the amount of drugs was based primarily on Donnell’s


       3  Donnell stated that “counsel constantly refuse[d] to give [him] answers to the many
different aspects of his innocence, rights and defenses guaranteed under Uniform
Commercial Code(s), common law, common equity law, laws of admiralty, and commercial
liens and levies.” Donnell further stated that counsel “would act dumfounded when [he
would] assert his innocence to the fact that there can be no violation of any of these laws
unless there is a victim consisting of a natural flesh and blood man or woman who has been
injured.”
                                             10
    Case: 13-40510    Document: 00512533449           Page: 11    Date Filed: 02/14/2014


                                     No. 13-40510

testimony,   which    he       believes   “was    wholly    without     any   indicia   of
trustworthiness or reliability.” When making the factual finding of the amount
of drugs involved in a drug trafficking offense, “the district judge may consider
any information that has ‘sufficient indicia of reliability to support its probable
accuracy,’   including     a     probation    officer’s    testimony,    a    policeman’s
approximation of unrecovered drugs, and even hearsay.” United States v.
Huskey, 137 F.3d 283, 291 (5th Cir. 1998) (quoting U.S. SENTENCING
GUIDELINES MANUAL (“U.S.S.G.”) § 6A1.3).              “The district court has broad
discretion in considering the reliability of the submitted information regarding
the quantities of drugs involved. Such credibility determinations rest within
the province of the trier-of-fact.” Huskey, 137 F.3d at 291 (citations and
internal quotation marks omitted). We find no procedural error in the district
court’s reliance on Donnell’s testimony.
      Mills further contends that his sentence is substantively unreasonable
because he received a longer sentence than most of his coconspirators who
pleaded guilty and cooperated with the Government. It is well settled that “a
disparity of sentences among co-defendants does not, without more, constitute
an abuse of discretion.” United States v. Stalnaker, 571 F.3d 428, 442 (5th Cir.
2009) (citation and internal quotation marks omitted). “This is especially true
when the co-defendants pled guilty and cooperated with the government. The
sentences of such co-defendants are obviously the result of leniency . . . .”
United States v. Sparks, 2 F.3d 574, 587 (5th Cir. 1993) (citation and internal
quotation marks omitted). Such is the case here.
      The record as a whole reveals that Mills is not similarly situated to his
codefendants and that the disparity among their sentences is warranted by the
Guidelines. See United States v. Duhon, 541 F.3d 391, 397 (5th Cir. 2008)
(disparity due to a defendant providing substantial assistance is warranted);
United States v. Candia, 454 F.3d 468, 476 (5th Cir. 2006) (“Congress intended

                                             11
   Case: 13-40510    Document: 00512533449      Page: 12   Date Filed: 02/14/2014


                                 No. 13-40510

that certain disparities be caused by application of the federal guidelines, and
a sentencing disparity intended by Congress is not unwarranted.” (citation and
internal quotation marks omitted)). The record thus belies Mills’s unsupported
assertion that “[t]he only possible explanation” for the differences among the
sentences is that the district court impermissibly punished him for exercising
his constitutional right to a jury trial. Mills has not shown that his sentence
is substantively unreasonable.
      AFFIRMED.




                                      12
