                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT                    June 16, 2005

                                                           Charles R. Fulbruge III
                                                                   Clerk
                            No. 04-10266




UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus


JOSEPH HORACE FIELDS, also known as Ding-Ding;
JASON DEJUAN LEATCH, also known as Criptonite;
DONALD TERRELL BANKS, also known as T-Blue,

                                     Defendants-Appellants.

                      --------------------
          Appeal from the United States District Court
           for the Northern District of Texas, Dallas
                         3:03-CR-78-14-N
                      --------------------

Before GARWOOD, GARZA and BENAVIDES, Circuit Judges.
                                           *
FORTUNATO P. BENAVIDES, Circuit Judge:

     Defendants-Appellants Joseph Horace Fields, Jason Dejuan

Leatch, and Donald Terrell Banks appeal their convictions and

sentences for participation in a drug conspiracy.   For the

foregoing reasons, we affirm all convictions.    We also affirm the

sentences of Fields and Banks.   We vacate Leatch’s sentence and


     *
          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that this opinion should not be published and is not precedent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.

                                 1
remand to the district court for re-sentencing.

                       I. FACTUAL BACKGROUND

     Appellants Joseph Horace Fields, Jason Dejuan Leatch, and

Donald Terrell Banks were all involved with street gangs fueled

by illegal trade in controlled substances.     Fields and Leatch

belonged to a gang known as the “Underground Nigger Crips”

(“UNC”) which operated on Cymbal Drive in Dallas, Texas.       UNC

members, who identified themselves by wearing the colors of the

University of North Carolina at Chapel Hill, held specific ranks

within the organization, corresponding to each member’s

seniority.   The most experienced gang members were identified as

“Original Gangsters” (“OGs”); the mid-level members received the

rank of “Young Crips Original Gangsters” (“YCOGs”); and the

lowest level for newer members was “Young Crips” (“YCs”).       Leatch

was a YC, having only joined the gang in 2000.     Fields joined UNC

in 1995 and held the rank of OG.

     Banks was a member of the Pleasant Grove Crips (“PGC”),

which shared a common lineage with UNC, and also operated an

illegal narcotics business on Cymbal Drive.     PGC, whose members

signaled their allegiance by wearing Duke University apparel,

adopted a ranking system similar to UNC’s.     The newest members

were known as “Young Devils” (“YDs”); in the middle were “Young

Devil Original Devils” (“YDODs”); and the most senior were

“Original Devils” (“ODs”).   Banks was a YDOD.    Through an



                                   2
alliance, PGC and UNC completely controlled the drug activity on

Cymbal Drive, such that no one could sell drugs there without

their permission.

     Following a two-year investigation, a federal grand jury

indicted fourteen defendants for the drug activity on Cymbal

Drive.   Thirteen of the defendants were members of UNC or PGC.

The indictment alleged that all fourteen defendants conspired to

possess and distribute more than 50 grams of crack cocaine in

violation of 21 U.S.C. § 846 (21 U.S.C. §§ 841(a)(1) &

841(b)(1)(A)).    The thirty-four other counts reflected actual

individual undercover buys made by law enforcement officers

during the investigation.

     Fields was also indicted for violation of 21 U.S.C. §§

841(a)(1) and 841(b)(1)(c) for possession of cocaine base with

intent to distribute.    Leatch was indicted on two counts for

distributing cocaine base in violation of 21 U.S.C. §§ 841(a)(1)

and 841(b)(1)(c).    Banks was also indicted for distributing

cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and

841(b)(1)(c).    Finally, Fields and Leatch were indicted for

distribution of cocaine base and aiding and abetting in violation

of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(c) and 18 U.S.C. § 2.

     Fields, Leatch, and Banks pled guilty to all counts except

for the conspiracy charge.    After a five day trial, the jury

found them guilty of the conspiracy count, as well.



                                  3
     The Presentence Report (“PSR”) found that Fields had a base

offense level of 36 pursuant to U.S.S.G. § 2D1.1(a)(3) because he

was accountable for 1,301.1 grams of cocaine base.   It enhanced

his sentence by two points in accordance with U.S.S.G. §

2D1.1(b)(1) due to the weapons in and around Cymbal Drive used by

the gangs.   The resulting U.S. Sentencing Guideline range was 292

to 365 months and the district court sentenced Fields to 292

months in prison for conspiracy to run concurrently with a 240

month sentence for the possession and distribution counts.

     The PSR treated Banks’s two convictions similarly to

Fields’s.    It assigned him a base level of 36 for the conspiracy

count with a two-point enhancement for possession of a dangerous

weapon.   The Sentencing Guidelines directed that Banks, with a

criminal history category of V, could receive 360 months to life

in prison.   The district court sentenced Banks to 360 months for

conspiracy and 240 months for the distribution count to run

concurrently.

     Likewise, Leatch was assigned a base level of 36 with the

same two-point enhancement.   The district court granted Leatch a

downward departure in criminal history from a category of V to a

category of IV.   The corresponding Sentencing Guideline range was

324 to 405 months.   The court sentenced Leatch to 324 months for

conspiracy and 240 months for the distribution charges to run

concurrently.

     Leatch, Banks, and Fields appeal their conspiracy

                                  4
convictions and sentences.

                          II. DISCUSSION

     Appellants assert that the evidence presented at trial was

insufficient for the jury to find them guilty on the conspiracy

count.   They also argue that the district court should have

granted their motions for a new trial because the verdict was

against the great weight of evidence.   Additionally, appellants

contend that the district court committed reversible error by

admitting into evidence a videotape of gang members.

     Appellants also advance several arguments that their

sentences are in error.   First, they argue that the sentences

violated their Sixth Amendment rights by being based, in part, on

evidence not found by a jury.   They also contend that the

district court erred in calculating the amount of illegal

narcotics sold by the conspiracy and in enhancing their sentences

for weapons possession.   Finally, Leatch argues that the district

court erred by denying his requested two-level downward departure

for acceptance of responsibility.

     We address each of these arguments in turn.

                    A. Sufficiency of Evidence

1. Standard of Review

     “This Court reviews jury verdicts with great deference and

evaluates the evidence in the light most favorable to the verdict

and affords the government the benefit of all reasonable


                                 5
inferences and credibility choices.”       United States v. McCauley,

253 F.3d 815, 818 (5th Cir. 2001) (citations and internal

quotation marks omitted).      We affirm the lower court’s decision

“if a rational trier of fact could have found that the evidence

establishes the essential elements of the offense beyond a

reasonable doubt.”       United States v. Williams, 985 F.2d 749, 753

(5th Cir. 1993).

2. Discussion

     “To prove a conspiracy to possess and distribute a

controlled substance, the government must prove beyond a

reasonable doubt (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. Peters, 283 F.3d 300, 307

(5th Cir. 2002).    When determining the defendant’s guilt, the

jury may consider if he acted in concert with others and take

into account his “presence among or association with drug

conspirators.”     Id.   “Of course, mere presence or association

with drug conspirators alone cannot establish that a person has

voluntarily joined that conspiracy.”       Id.   “The agreement, a

defendant’s guilty knowledge and a defendant’s participation in

the conspiracy all may be inferred from the development and

collocation of circumstances.”       United States v. Maltos, 985 F.2d

743, 746 (5th Cir. 1992) (citations and internal quotation marks


                                     6
omitted).   However, “the government may not prove up a conspiracy

merely by presenting evidence placing the defendant in ‘a climate

of activity that reeks of something foul.’”       Id. (quoting United

States v. Jackson, 700 F.2d 181, 185 (5th Cir. 1983)).

     We note that evidence presented at trial showed the

following: UNC and PGC had exclusive control over the illegal

narcotics business on Cymbal Drive; the gangs used houses on

Cymbal Drive for gun and drug storage; UNC and PGC policed the

use of drugs among members; gang members did not fight over drug

sales on Cymbal and in fact cooperated to fill drug orders; UNC

and PGC used lookouts and counter-surveillance to avoid police

interference; and a videotape filmed by UNC and PGC members

showed them counting their drug money and bragging about how

lucrative their arrangement was.       This evidence is qualitatively

similar to that which this Court deemed sufficient to find a drug

conspiracy in United States v. Wilson, 116 F.3d 1066 (5th Cir.

1997).1

     Like the panel in Wilson, we find the evidence in the

instant case sufficient for the jury to find a conspiracy.      As in

the instant case, the gang in Wilson controlled who could sell

drugs on its territory and dealt with hostile parties violently.

Id. at 1074.   In both cases, the gangs’ exclusive control of


     1
     This opinion was later vacated only as to one count against
Defendant Alfred A. Brown. See United States v. Brown, 161 F.3d
256, 257 n.1 (5th Cir. 1998).

                                   7
their territory combined with the fact that the defendants all

sold drugs on the gangs’ turf could allow “[a] rational jury [to]

infer voluntary participation in the conspiracy.”      Id.   Even

though, in both cases, “individual dealers sold in competition

with one another,” this “does not preclude a finding of a single

conspiracy.”     Id. at 1076.   Thus, we find that the evidence in

the instant case permits a reasonable trier of fact to find

beyond a reasonable doubt that Appellants engaged in a conspiracy

to sell illegal drugs.

               B. Verdict Against the Weight of Evidence

1. Standard of Review

     “The decision to grant or deny a motion for new trial based

on the weight of the evidence is within the sound discretion of

the trial court. An appellate court may reverse only if it finds

the decision to be a ‘clear abuse of discretion.’”      United States

v. Dula, 989 F.2d 772, 778 (5th Cir. 1993) (quoting United States

v. Martinez, 763 F.2d 1297, 1312 (11th Cir. 1985)).

2. Discussion

     Federal Rule of Criminal Procedure 33 states: “Upon the

defendant’s motion, the court may vacate any judgment and grant a

new trial if the interest of justice so requires.”     Fed. R. Crim.

P. 33.   In order for a district court to exercise its discretion,

“[t]he evidence must preponderate heavily against the verdict,

such that it would be a miscarriage of justice to let the verdict


                                    8
stand.”   United States v. Robertson, 110 F.3d 1113, 1118 (5th

Cir. 1997).   The verdict in this case was clearly not a

miscarriage of justice.    Thus, we find that the district court

did not abuse its discretion in declining to grant new trials.

                     C. Authentication of Evidence

     1. Standard of Review

     We review district courts’ evidentiary rulings for abuse of

discretion.     United States v. Sanders, 343 F.3d 511, 517 (5th

Cir. 2003).   If we find an abuse of discretion, we review the

error under the harmless error doctrine.      Id.

2. Discussion

     Appellants objected to a videotape made by UNC and PGC gang

members being admitted into evidence.    Law enforcement officers

recovered the tape during a different drug enforcement operation.

The detective who discovered it testified that it had not been

altered in any way since she first obtained it.      Since the

original operator of the video camera was murdered, a different

gang member testified as to the identity of the individuals on

the tape – UNC and PGC gang members on Cymbal Drive.

     Federal Rule of Evidence 901(a) mandates that “[t]he

requirement of authentication or identification as a condition

precedent to admissibility is satisfied by evidence sufficient to

support a finding that the matter in question is what its

proponent claims.”    Fed. R. Evid. 901(a).   We find that the


                                   9
district court did not abuse its discretion by admitting the

videotape into evidence.    Appellants do not call into question

the tape’s accuracy and there is no evidence that it was altered

in any way.   We also remain unpersuaded that its admission

meaningfully prejudiced the defendants, as the evidence in this

case was quite strong without the videotape.

                   D. Sixth Amendment Violation

1. Standard of Review

     For Appellants who do not raise the Booker issue in the

district court, thereby preserving the error, the proper standard

of review is plain error.    United States v. Mares, 402 F.3d 511,

520 (5th Cir. 2005).    Under that standard we will reverse if an

appellant can show that (1) there is error; (2) the error is

plain; and (3) the error affects “substantial rights,” i.e., the

error “must have affected the outcome of the district court

proceedings.”   United States v. Olano, 507 U.S. 725, 732-34

(1993).   “‘If all three conditions are met, an appellate court

may then exercise its discretion to notice a forfeited error, but

only if (4) the error “seriously affects the fairness, integrity,

or public reputation of judicial proceedings.”’”    United States

v. Cotton, 535 U.S. 625, 631 (2002) (quoting Johnson v. United

States, 520 U.S. 461, 467 (1997)).

2. Discussion

     Appellants argue that their sentences violated the Sixth

                                 10
Amendment per United States v. Booker, 125 S. Ct. 738 (2005).

The government concedes that the sentences were plainly in error.

Therefore, the first question that must be answered is whether

Appellants preserved their Booker objections to the district

court’s sentencing under the U.S. Sentencing Guidelines.     While

Fields and Banks objected orally and in writing to their

sentences, they never voiced their objections in such a manner so

as to advise the district court they were complaining about Sixth

Amendment violations or used any terms that would implicate the

error complained of in Booker.   We require more than just an

objection to factual findings presented in the PSR.      See United

States v. Bringier, 405 F.3d 310, 316 (5th Cir. 2005) (finding

error was not preserved where objections to “sentence were not

expressed in terms of Blakely or the Sixth Amendment”).

     This is not the case for Leatch.   In addition to

substantively complaining about the calculation of drug totals

involved in this case, his motion to the district court for

downward departure included a complaint that implicitly

referenced the constitutional problem at issue in Booker: “Mr.

Leach also moves for a downward departure on the basis of

uncharged conduct being used to dramatically raise his sentence.

See United States v. White, 240 F.3d 127, 136 ([2d] Cir. 2001).”2

     2
     The appellant in White, objecting to the quantity of
cocaine base applied in sentencing, argued that the district
court violated Apprendi v. New Jersey, 530 U.S. 466 (2000), by

                                 11
 His attorney voiced this complaint during the sentencing hearing

as well: “Also we move for a downward departure based upon the

uncharged conduct dramatically raising a sentence . . . .”    We

think these statements successfully preserved the Booker error.

Since the government cannot identify “record evidence that would

prove beyond a reasonable doubt that the district court would not

have sentenced [Appellant] differently had it acted under an

advisory Guidelines regime,” we vacate Leatch’s sentence and

remand to the district court.   United States v. Akpan, 407 F.3d

360, 377 (5th Cir. 2005).3

     As they did not preserve their error, we review the

sentences of Fields and Banks for plain error.   The government

contends that Appellants’ substantial rights were not affected by

the Booker error.   In order to show that substantial rights were

affected, Appellants must “demonstrate[] that the sentencing

judge--sentencing under an advisory scheme rather than a

mandatory one--would have reached a significantly different

result.”   Mares, 402 F.3d at 521.   A review of the sentencing

hearing does not yield any evidence that the sentencing judge



“us[ing] facts not before the jury to impose a sentence.” 240
F.3d at 136. We have held that an Apprendi-based objection
preserves Booker error. See United States v. Pineiro, __ F.3d
__, 2005 U.S. App. LEXIS 9226, *9 (5th Cir. May 20, 2005).
     3
     Appellants have not identified, nor have we found, any
evidence that Fields and Banks adopted the grounds Leatch
advanced for downward departure in this case.

                                12
would have reached a different result.    Thus, we affirm the

sentences of Banks and Fields.

          E. Drug Quantity Calculations During Sentencing

1. Standard of Review

     We review the district court’s interpretation and

application of federal Sentencing Guidelines de novo and its

findings of fact for clear error.     United States v. Sprick, 233

F.3d 845, 852 (5th Cir. 2000).   “[W]hen a district court has

imposed a sentence under the Guidelines, this [C]ourt continues

after Booker to review the district court’s interpretation and

application of the Guidelines de novo.”    United States v.

Villegas, 404 F.3d 355, 359 (5th Cir. 2005).

2. Discussion

     “[T]he district judge ‘may adopt facts contained in the PSR

without further inquiry if the facts have an adequate evidentiary

basis and the defendant does not present rebuttal evidence.’”

United States v. Medina, 161 F.3d 867, 876-77 (5th Cir. 1998)

(quoting United States v. Alford, 142 F.3d 825, 832 (5th Cir.

1998)).   Here, the underlying facts found by the PSR are not

really in contention.   Rather, Appellants object to the manner in

which the amount of drugs was estimated based on those facts.

Medina makes clear that district courts need not be exact, i.e.,

the district court may approximate drug totals.     See id. at 877.

These estimations will be reviewed for clear error.     See id.

                                 13
     The government’s methodology was not flawed.   It was based

on the evidence and consistently used the low end of witnesses’

estimates.   Thus, we do not believe the drug amounts are clearly

in error.

             F. Enhancement for Possession of Weapon

1. Standard of Review

     As stated supra, the standard of review is de novo for

applications of the U.S. Sentencing Guidelines and clear error

for factual findings.

2. Discussion

     Appellants argue that the district court erred in applying a

two-level enhancement to their sentences pursuant to U.S.S.G. §

2D1.1(b)(1) for possession of a dangerous weapon.   U.S.S.G. §

2D1.1(b)(1) permits a two-level enhancement if the defendant

possessed a dangerous weapon while trafficking or possessing

illegal narcotics.   United States v. Partida, 385 F.3d 546, 562

(5th Cir. 2004).   It is the government’s burden to show a spacial

and temporal nexus between the defendant, the gun and the drug

activity, by a preponderance of the evidence.    Id.; United States

v. Jacquinot, 258 F.3d 423, 430 (5th Cir. 2001).    The enhancement

should not be applied, though, where “the defendant establishes

that it was clearly improbable that the weapon was connected with

the offense.”   Id. at 430-31.   “Instead, for the enhancement to

be proper the government must show that ‘the weapon was found in


                                 14
the same location where drugs or drug paraphernalia are stored or

where part of the transaction occurred.’”     Partida, 385 F.3d at

562 (quoting U.S.S.G. § 2D1.1 application note 3).

“‘[S]entencing courts may hold a defendant accountable for a co-

defendant’s reasonably foreseeable possession of a firearm during

the commission of a narcotics trafficking offense, pursuant to

section 2D1.1(b)(1).’”     United States v. Thomas, 120 F.3d 564,

574 (5th Cir. 1997) (quoting United States v. Aguilera-Zapata,

901 F.2d 1209, 1215 (5th Cir. 1990)).

     The PSR states that “numerous weapons” were found “in and

around” Cymbal Drive.    Furthermore, government surveillance

showed that members of UNC and PGC possessed firearms while on

Cymbal Drive.   This is coupled with substantial testimony for

various gang members regarding the possession of firearms by

themselves and other gang members on Cymbal Drive.    Appellants

point to no evidence that shows the relationship between these

guns and their drug conspiracy to be improbable.    Likewise, they

present no evidence that the possession and storage of firearms

was unforeseeable or unknown to them.    Thus, we affirm the

district court’s ruling.

G. Denial of Two-Level Downward Adjustment under U.S.S.G. § 3E1.1

1. Standard of Review

     “Whether a defendant has accepted responsibility for a crime

is a factual question and the standard of review is even more


                                  15
deferential than clear error.”   United States v. Spires, 79 F.3d

464, 467 (5th Cir. 1996).   Accord United States v. Outlaw, 319

F.3d 701, 705 (5th Cir. 2003).   “Because the trial court’s

assessment of a defendant’s contrition will depend heavily on

credibility assessments, the ‘clearly erroneous’ standard will

nearly always sustain the judgment of the district court.”

Spires, 79 F.3d at 467.   “However, if this [C]ourt determines

that the district court misapplied the guidelines, remand is

appropriate unless this court concludes, on the record as a

whole, that the error is harmless.”     Outlaw, 319 F.3d at 705.

2. Discussion

     Leatch argues that the district court erred when it failed

to grant him a two-point downward adjustment under U.S.S.G. §

3E1.1 for acceptance of responsibility.    Although Leatch did go

to trial, he points to U.S.S.G. § 3E1.1’s application notes which

provide that in some cases a defendant who defends himself in

court could still receive the downward departure:

     Conviction by trial, however, does not automatically
     preclude a defendant from consideration for such a
     reduction. In rare situations a defendant may clearly
     demonstrate an acceptance of responsibility for his
     criminal   conduct   even   though   he   exercises   his
     constitutional right to a trial. This may occur, for
     example, where a defendant goes to trial to assert and
     preserve issues that do not relate to factual guilt
     (e.g., to make a constitutional challenge to a statute or
     a challenge to the applicability of a statute to his
     conduct).

U.S.S.G. § 3E1.1, application note 2.    However, Leatch did not


                                 16
demonstrate an acceptance of responsibility for his participation

in the drug conspiracy at the sentencing: “[A]ll I sold to

undercover was a gram and a half out of three cases.     Out of

three – three different deliveries to undercover police officer,

all they got from me was a gram and a half, and I am fixing to

get, you know, almost 30 years.”     And he and his co-defendants

continued to argue throughout the trial (and even on appeal) that

they were independent operators and did not participate in a

larger conspiracy to sell drugs on Cymbal Drive.     The issue of

whether or not gang members conspired with one another to sell

drugs and monopolize the illegal narcotic business on Cymbal

Drive is an “operative fact” and distinguishes this case from

United States v. Fells, 78 F.3d 168 (5th Cir. 1996).

     Thus, we affirm the district court’s ruling.

                          III. CONCLUSION

     For the forgoing reasons, we AFFIRM the convictions of

Fields, Leatch, and Banks.   We also AFFIRM the sentences of

Fields and Banks.   However, we VACATE Leatch’s sentence and

REMAND to the district court for re-sentencing.




                                17
EMILIO M. GARZA, Circuit Judge, specially concurring:



       I concur with the majority’s opinion, except for the stated standard of review for

Sentencing Guidelines interpretation. See Majority Op. at 13-14. For the reasons stated in my

concurrence in United States v. Creech, No. 04-40354, 2005 WL 1022435, at *9 (5th Cir. May 3,

2005), I do not agree that we review a district court’s interpretation of the Sentencing Guidelines

de novo. While endorsed in Villegas, this standard is inconsistent with the Supreme Court’s

decision in Booker, which requires appellate courts to review sentencing decisions for

unreasonableness. Booker, 125 S. Ct. at 767. Because I agree that the district court in this case

correctly interpreted the Sentencing Guidelines, I conclude that the sentence was not

unreasonable. See Mares, 402 F.3d at 519 (“Given the deference due the sentencing judge’s

discretion under the Booker/Fanfan regime, it will be rare for a reviewing court to say [a sentence

in which the district court properly applied the Guidelines] is ‘unreasonable.’”).

       Accordingly, I concur in the majority opinion except with respect to the stated de novo

standard of review.




                                                 18
