     Case: 16-30212      Document: 00514167191         Page: 1    Date Filed: 09/22/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit
                                    No. 16-30212                                    FILED
                                  Summary Calendar                          September 22, 2017
                                                                               Lyle W. Cayce
                                                                                    Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

VACARRA ROGERS,               also    known      as   Vacarra      Comanche;          KEVIN
HONEYCUTT,

                                                 Defendants-Appellants


                  Appeals from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 3:15-CR-58-1


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
       Following a jury trial, Vacarra Rogers and Kevin Honeycutt were
convicted of conspiracy to distribute and to possess with intent to distribute
methamphetamine.         Honeycutt was also convicted of a substantive meth
offense and possession of firearms by a convicted felon. The district court
sentenced each defendant within the applicable guidelines range. Rogers was



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 16-30212

sentenced to 151 months of imprisonment and five years of supervised release;
Honeycutt was sentenced to concurrent terms of 151 months of imprisonment
for the controlled substance offenses and 120 months of imprisonment for the
firearms offense, to be followed by five years of supervised release.
      As a preliminary matter, Rogers, who is proceeding pro se on appeal, has
moved the court to reject a previously-filed appellate brief and to allow him to
file a corrected brief. Rogers’s motion is GRANTED IN PART insofar as he
seeks permission to (1) proceed with his four claims pertaining to the
sufficiency of the evidence supporting his conviction, the introduction of
Honeycutt’s out-of-court statements, the introduction of evidence of a prior
methamphetamine sale, and the calculation of his criminal history and the
methamphetamine       quantity   under     the   Sentencing   Guidelines;    and
(2) withdraw his challenge to the denial of his motion to suppress and his claim
of prosecutorial vindictiveness.     Because briefing is complete and the
Government would be prejudiced if Rogers were allowed to proceed with his
new claim alleging a violation of Alleyne v. United States, 133 S. Ct. 2151
(2013), Rogers’s motion to file a corrected brief is DENIED IN PART insofar as
he seeks to add an Alleyne claim. Rogers’s motion to supplement the record
with transcripts of the grand jury proceedings is DENIED.
      In addition, Honeycutt, also proceeding pro se, moves this court to adopt
and incorporate his former appointed counsel’s “brief and its arguments in
their entirety.” But there is no right to hybrid representation. See United
States v. Ogbonna, 184 F.3d 447, 449 & n.1 (5th Cir. 1999). And although
Federal Rule of Appellate Procedure allows an appellant to adopt parts of
another appellant’s brief, that rule does not allow a pro se appellant to adopt
all or part of a brief previously filed by an attorney who no longer represents
him. Accordingly, Honeycutt’s motion is DENIED.



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      Rogers and Honeycutt contend that the evidence was insufficient to
support their conspiracy convictions because there was no showing that each
defendant agreed with at least one other person to traffic methamphetamine.
We review de novo their challenge to the sufficiency of the evidence. See United
States v. Alaniz, 726 F.3d 586, 600 (5th Cir. 2013). The Government was
required to prove “1) the existence of an agreement between two or more
persons to violate narcotics laws, 2) knowledge of the conspiracy and intent to
join it and 3) voluntary participation in the conspiracy.” United States v. White,
219 F.3d 442, 445 (5th Cir. 2000). For purposes of a conspiracy, the agreement
to violate the law “need not be explicit or formal; tacit agreement is sufficient.”
United States v. Chapman, 851 F.3d 363, 376 (5th Cir. 2017). The existence of
an agreement may be proved solely by circumstantial evidence or may be
inferred from a concert of action. Id. We view all the evidence in the light most
favorable to the Government. See Alaniz, 726 F.3d at 600.
      The Government presented sufficient evidence at trial that Rogers
agreed with others to participate in a conspiracy to distribute and to possess
methamphetamine with the intent to distribute it. Based on the three-way
phone calls showing that Rogers directed the movement of money and
methamphetamine between Monroe, Louisiana, and his uncle’s house in
Texas, as well as the evidence showing a concert of action between Rogers, his
girlfriend Kendra Turner, Honeycutt, and others, a reasonable jury could have
determined beyond a reasonable doubt that Rogers at least tacitly agreed with
others to participate in a drug trafficking conspiracy. See Chapman, 851 F.3d
at 376. Further, the premise of Rogers’s argument is incorrect; his conviction
was not based on any testimony or other evidence showing his use of the word
“tires” to be a code word for “methamphetamine.”




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      Likewise, the trial evidence shows that Honeycutt at least tacitly agreed
with others to violate the narcotics laws. See id.; Alaniz, 726 F.3d at 600. The
Government presented evidence that for several days leading up to the arrests
in this case, Honeycutt communicated with Ruby Jane McMillian about
obtaining funds from her; he participated in calls with Rogers and Turner
about those funds and a trip to Texas to obtain methamphetamine from a third
party; and he received money from McMillian, which he then provided to
Turner to purchase methamphetamine.          In addition, during a search of
Honeycutt’s residence, officers retrieved methamphetamine that Turner had
left with Honeycutt prior to her trip to Texas, as well as two firearms, cash,
and other tools of the drug trade.
      Rogers also argues on appeal that Sergeant Paul Knight testified to
statements made by Honeycutt to officers that were “facially” and “directly”
incriminating and that implicated Rogers and the other co-conspirators.
Rogers contends that because Honeycutt did not testify at trial, he was denied
his right to confront Honeycutt as to those statements, in violation of Bruton
v. United States, 391 U.S. 123 (1968). We review this issue, raised for the first
time on appeal, for plain error. See United States v. Vasquez, 766 F.3d 373,
378 (5th Cir. 2014). We conclude that there was no Bruton error as the
out-of-court statements attributable to Honeycutt did not directly allude to
Rogers. See United States v. Smith, 822 F.3d 755, 762 (5th Cir. 2016); United
States v. Restrepo, 994 F.2d 173, 186 (5th Cir. 1993).
      Next, Rogers argues that the district court erred in admitting evidence
at trial of his sale of methamphetamine to a confidential informant two months
before the charged conspiracy.       Our court applies a two-part test for
admissibility of evidence “of a crime, wrong, or other act” under Federal Rule
of Evidence 404(b): (1) the evidence must be “relevant to an issue other than



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the defendant’s character”; and (2) the evidence’s probative value must not be
substantially outweighed by its prejudicial effect. United States v. Beechum,
582 F.2d 898, 911 (5th Cir. 1978) (en banc).
      The first Beechum requirement is easily met.           Roger’s intent and
knowledge, two permissible purposes cited in Rule 404(b), were the main issues
he disputed at trial. See United States v. Cockrell, 587 F.3d 674, 679 (5th Cir.
2009). And Rogers fails to show that the district court abused its discretion
with respect to the second Beechum inquiry.        The district court carefully
weighed the evidence and instructed the jury as to the “very limited purposes”
for which it could consider the evidence. See United States v. Garcia-Mendoza,
587 F.3d 682, 689 (5th Cir. 2009). The prior drug transaction was highly
probative because it involved the same type of drug, took place just two months
before the charged conduct, and involved two of the same conspirators—
Honeycutt and Turner. See United States v. Garcia Mendoza, 587 F.3d 682,
689 (5th Cir. 2009) (holding that even a drug transaction occurring five years
before the charged conduct was “a close enough temporal interval for rule
404(b) purposes.”). On the prejudice side of the equation, the extrinsic offense
was not of such a “heinous nature” that it would “incite the jury to irrational
decision by its force on human emotion.”          Beechum, 582 F.2d at 917.
Accordingly, the district court did not abuse its discretion by admitting
evidence of Roger’s prior methamphetamine sale.            See United States v.
Kinchen, 729 F.3d 466, 470-74 (5th Cir. 2013).
      Honeycutt challenges the district court’s denial of his motion to suppress
evidence seized during a warrantless search of his residence. He maintains
that he did not freely and voluntarily consent, emphasizing that he did not
understand his right to refuse permission. “A search conducted pursuant to
consent is excepted from the Fourth Amendment’s warrant and probable cause



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requirements.” United States v. Solis, 299 F.3d 420, 436 (5th Cir. 2002). The
voluntariness of consent is a factual finding to be reviewed for clear error. Id.
We analyze the following six factors to determine whether consent to a search
was voluntarily given: “(1) the voluntariness of the defendant’s custodial
status; (2) the presence of coercive police procedures; (3) the extent and level
of the defendant’s cooperation with the police; (4) the defendant’s awareness of
his right to refuse to consent; (5) the defendant’s education and intelligence;
and (6) the defendant’s belief that no incriminating evidence will be found.” Id.
at 436 & n.21 (internal quotation marks and citation omitted).
      Following an evidentiary hearing, the district court determined that
Honeycutt voluntarily consented to the search that led to the discovery of
methamphetamine and the search of the remainder of his residence because,
there was no evidence of police coercion; he fully cooperated with the officers;
as a convicted felon, he was not a novice in matters of criminal and police
procedure; and he affirmed that he understood his Miranda rights. The finding
of voluntariness based on these circumstances is a reasonable view of the
evidence. See id. The district court recognized there was no direct evidence
showing Honeycutt knew he could refuse consent. But that factor alone “is not
be given controlling significance.” United States v. Freeman, 482 F.3d 829, 833
(5th Cir. 2007).
      Honeycutt next argues, for the first time on appeal, that his Sixth
Amendment right to confront and cross-examine adverse witnesses was
violated when Sergeant Knight testified about statements made to him by
Mike Goins of the Ouachita Parish Sheriff’s Office about monitored prison
phone calls. Goin’s out-of-court statements were introduced in the context of
how Sergeant Knight investigated the case and developed suspects for the
charged drug conspiracy.     The district court thus did not plainly err in



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admitting the testimony because it was not clearly introduced for the truth of
the matter asserted. See Smith, 822 F.3d at 762.
      Honeycutt further contends that the prosecutor acted vindictively and
violated the Equal Protection Clause in charging the male defendants with a
larger quantity of methamphetamine than their female codefendants, as
evidenced by the indictment and the record. Our review is again for plain error
as he did not object on this basis in the district court. See United States v.
Rodriguez, 602 F.3d 346, 351 (5th Cir. 2010) (vindictiveness); United States v.
Ramos, 537 F.3d 439, 458 n.15 (5th Cir. 2008) (equal protection); see also FED.
R. CRIM. P. 12(b)(3)(A)(iv). Honeycutt’s conclusory allegations of vindictiveness
and selective prosecution are “insufficient to take this case out of the general
rule that prosecutors have wide latitude in determining which cases to
prosecute.” United States v. Ramirez, 765 F.2d 438, 440 (5th Cir. 1985). And
both female defendants pleaded guilty and testified at trial.        Accordingly,
Honeycutt has not established any error, much less plain error. See United
States v. Molina, 530 F.3d 326, 332 (5th Cir. 2008).
      Rogers presents two sentencing arguments, both of which are raised for
the first time on appeal. First, he challenges the assignment of 12 criminal
history points, arguing that some of his prior state convictions and sentences
were consolidated and thus erroneously included in his scoring. The district
court did not err, plainly or otherwise, in counting Rogers’s four prior sentences
separately.   While the sentences for his attempted simple burglary and
aggravated battery offenses were imposed on the same day, the two offenses
were separated by an intervening arrest. See U.S.S.G. § 4A1.2(a)(2). As to
Rogers’s prior convictions for possession of a firearm by a convicted felon and
simple burglary, his sentences for those offenses did not result from the same
charging instrument and were not imposed on the same day. See id.



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      Honeycutt’s final two challenges to his sentence—that the drug quantity
was erroneous and that he was entitled to a mitigating role adjustment—are
inadequately briefed, so we will not consider them.      See United States v.
Reagan, 596 F.3d 251, 254 (5th Cir. 2010); United States v. Stalnaker, 571 F.3d
428, 439-40 (5th Cir. 2009).
      The judgments of the district court are AFFIRMED.




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