     Case: 12-31161      Document: 00512720185         Page: 1    Date Filed: 08/01/2014




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


                                      No. 12-31161                             FILED
                                                                          August 1, 2014
                                                                          Lyle W. Cayce
UNITED STATES OF AMERICA,                                                      Clerk

                                                 Plaintiff – Appellee
v.

REGINALD G. YOUNGBLOOD,

                                                 Defendant – Appellant




                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                              USDC No. 3:11-CR-6-1


Before JOLLY, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
       The defendant, Reginald Youngblood, was convicted of possession with
intent to distribute marijuana and hydrocodone, possession of a firearm in
furtherance of a drug trafficking crime, and possession of a firearm by a felon.
In sentencing Youngblood, the district court also took into account crack
cocaine that was found at Youngblood’s home, but that was later suppressed.
This inclusion increased Youngblood’s base offense level. After this increase,
Youngblood was sentenced to a total of 112 months in prison (delivered as two


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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52-month sentences running concurrently, and one 60-month sentence to run
consecutively to the 52-month sentences).          Youngblood now appeals his
conviction arguing that the district court erred in accepting Youngblood’s
waiver of his right to conflict-free counsel, and that there was insufficient
evidence to support his conviction. Additionally, Youngblood argues that the
district court erred in sentencing him because the suppressed crack cocaine
should not have been considered for sentencing purposes.             We AFFIRM
Youngblood’s conviction and sentence.
                                        I.
      In June 2010, Captain Todd Morris (“Captain Morris”), a member of the
homicide division in the East Baton Rouge Parish Sheriff’s Office, was
investigating Youngblood for attempted murder. During this investigation,
Captain Morris became aware that Youngblood was also being investigated for
drug trafficking by Detective Eric Burkett (“Detective Burkett”) of the
narcotics division in the Baton Rouge City Police Department. As part of his
murder investigation, Captain Morris obtained an arrest warrant for
Youngblood and a search warrant for his house. He invited Detective Burkett
to participate in the execution of the warrants.
      During the search of Youngblood’s home, a bag of marijuana was found
on an ironing board, two handguns were found in a dresser drawer, more than
$19,000 in cash was found in two closets, a bottle filled with hydrocodone pills
was found on top of a dresser, and seventeen grams of crack cocaine were found
in a cereal box. Relevant to one of the issues on appeal, the crack cocaine was
found by a detective from the Sheriff’s Office.
      Subsequently, Youngblood filed a suppression motion as to all of these
materials and all statements he made during the search. The Government
conceded that the search of the cereal box that yielded the crack cocaine
exceeded the scope of the warrant; accordingly, the Government conceded that
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the crack cocaine (and Youngblood’s statements about it) should be suppressed.
Consistent with this view, the Government filed a superseding indictment
charging Youngblood in Count 1 with possession with intent to distribute
marijuana and hydrocodone, 21 U.S.C. § 841(a)(1); in Count 2 with possession
of a firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A);
and in Count 3 with possession of a firearm by a felon, 18 U.S.C. § 922(g)(1).
      On the first day of Youngblood’s trial, the district court was advised that
both of Youngblood’s attorneys had represented Youngblood’s wife, Delilah
Youngblood, in related proceedings. One of Youngblood’s attorneys, Rodney
Messina, represented Delilah in civil forfeiture proceedings in which Delilah
attempted to recover the money seized from the Youngbloods’ home. Delilah
eventually stipulated to the forfeiture. Youngblood’s other attorney, Marci
Blaize, represented Delilah in grand jury proceedings arising out of the search
of the Youngbloods’ home. In these proceedings, Delilah invoked her Fifth
Amendment right against self-incrimination and the martial privilege.
      In the light of this conflict, the district court assigned the Federal Public
Defender’s Office (FPD) to advise Youngblood of the potential conflict of
interests and its consequences and to ensure that Youngblood understood his
right to conflict-free counsel. After Youngblood met with the FPD, the district
court held a hearing on the conflict of interests. During this hearing, the
district court judge questioned Youngblood directly to ensure that Youngblood
understood that he had the right to conflict-free counsel, what the
consequences of waiving that right could be, and that Youngblood nonetheless
wished to waive it. After this colloquy, Youngblood indicated that he wished
to waive his right. Satisfied that Youngblood was sufficiently informed, the
district court accepted Youngblood’s waiver.
      Youngblood was subsequently convicted on all three counts. After the
conviction, a presentence investigation report was prepared, which included
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the suppressed crack cocaine in the calculation of Youngblood’s base offense
level. Specifically, had the crack cocaine not been included, Youngblood’s base
offense level for Count 1 (possession with intent to distribute) would have been
14; because the crack cocaine was included, the base offense level rose to 22.
Youngblood objected to the consideration of the crack cocaine, but the district
court denied this objection. The district court imposed a within-guidelines
sentence of 52 months of imprisonment for Counts 1 and 3, to be served
concurrently, and 60 months on Count 2 (the statutory minimum), to be served
consecutively to the 52-month sentences.          Youngblood now appeals his
conviction and his sentence, raising two issues related to the conviction and
one related to his sentence. We discuss each in turn.
                                        II.
      We begin by addressing Youngblood’s sufficiency challenge. Youngblood
argues that his convictions on Counts 1 and 2 should be vacated because the
Government failed to provide sufficient evidence that he intended to distribute
the marijuana—as opposed to possessing it for personal use—and failed to
provide sufficient evidence that he possessed the hydrocodone.
      Because Youngblood did not renew his motion for acquittal at the close
of all evidence, we review this issue for plain error. United States v. Delgado,
672 F.3d 320, 330–32 (5th Cir. 2012) (en banc). Applying this standard to
sufficiency claims specifically, we reject unpreserved sufficiency claims “unless
the record is devoid of evidence pointing to guilt or if the evidence is so tenuous
that a conviction is shocking.” Id. at 330–31 (emphasis omitted). “Similarly,
we have summarized the plain-error test’s application to unpreserved
sufficiency claims by stating that the court will reverse only if there is a
manifest miscarriage of justice.” Id. (quotation marks and emphasis omitted).
To be sure, Youngblood has a high hurdle to clear in successfully establishing
his unpreserved sufficiency challenge.
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      Youngblood does not clear the hurdle. To establish possession with
intent to distribute, the Government had to prove beyond a reasonable doubt
that Youngblood “(1) knowingly (2) possessed a controlled substance (3) with
intent to distribute it.” United States v. Williamson, 533 F.3d 269, 277 (5th
Cir. 2008). Youngblood argues that the Government did not prove that he had
intent to distribute the marijuana, or that he possessed the hydrocodone.
      Beginning with the intent to distribute marijuana, Youngblood argues
that based on his sharing a residence with his wife, only half of the marijuana
found should be considered to be his; and that this lesser amount is consistent
with personal use. He presents no authority for this argument, but even if we
were to accept it, there is clearly sufficient evidence that Youngblood had an
intent to distribute.    First, assuming we attribute the entire amount of
marijuana to Youngblood, there was an amount of marijuana—nearly half a
pound—that an expert testified was inconsistent with personal use, and this is
sufficient to uphold Youngblood’s conviction. See id. at 277–78 (“[T]he mere
possession of a quantity of drugs inconsistent with personal use will suffice for
the jury to find intent to distribute.”). Even if we were to accept Youngblood’s
argument and consider only half the amount found, that two weapons, more
than $19,000 in cash, and a digital scale were found in the home would support
the finding of an intent to distribute. See United States v. Kates, 174 F.3d 580,
582 (5th Cir. 1999) (“Possession of a small quantity of illegal drugs consistent
with personal use does not support an inference of intent to distribute in the
absence of other evidence, such as drug paraphernalia, guns, or large quantities
of cash.” (citations omitted and emphasis added)). In short, there is ample
evidence to support Youngblood’s conviction for intent to distribute marijuana.
      We reach a similar conclusion in dealing with Youngblood’s argument
about the hydrocodone. He argues only that he did not have possession of the
hydrocodone because it was found near his wife’s belongings. Possession can
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                                 No. 12-31161
be established as actual or constructive. “Constructive possession may be
found if the defendant had (1) ownership, dominion, or control over the item
itself or (2) dominion or control over the premises in which the item is found.”
United States v. Meza, 701 F.3d 411, 419 (5th Cir. 2012) (internal quotation
marks omitted). When, as here, a residence is jointly occupied, there must be
“some evidence supporting a plausible inference that the defendant had
knowledge of and access to the illegal item.”      Id. (emphasis and internal
quotation marks omitted). We have held that the item being in plain view will
support such an inference. Id. at 421. Here, the hydrocodone was found in
plain view atop a dresser. Accordingly, there is sufficient evidence for a jury
to find that Youngblood possessed the hydrocodone.         And, similar to the
marijuana, the amount of hydrocodone and the other items found are sufficient
to establish Youngblood’s intent to distribute. We therefore hold that there
was sufficient evidence to convict Youngblood on all counts.
                                      III.
      Next, we turn to Youngblood’s argument that the district court erred in
accepting Youngblood’s waiver of conflict-free counsel. “We review the district
court’s acceptance of defendant’s waiver of conflict-free counsel for simple
error.” United States v. Rodriguez, 278 F.3d 486, 492 (5th Cir. 2002).
      The Sixth Amendment right to counsel includes the “right to
representation that is free from any conflict of interest.” United States v.
Vaquero, 997 F.2d 78, 89 (5th Cir. 1993). “A conflict exists when defense
counsel places himself in a position conducive to divided loyalties.” United
States v. Carpenter, 769 F.2d 258, 263 (5th Cir. 1985). A defendant may choose
to proceed with representation by counsel who has a conflict, but the district
court must hold a hearing to ensure a valid waiver by the defendant of his right
to conflict-free counsel. United States v. Garcia, 517 F.2d 272, 277–78 (5th Cir.


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1975), abrogated on other grounds by Flanagan v. United States, 465 U.S. 259,
263 & n.2 (1984).
      Like any other constitutional right, the waiver of the right to conflict-
free counsel “must be an intentional relinquishment or abandonment of a
known right.” Garcia, 517 F.2d at 276 (internal quotation marks omitted).
Generally speaking, a court should “indulge every reasonable presumption
against waiver of fundamental constitutional rights” and should “not presume
acquiescence in the loss of a fundamental right.” Johnson v. Zerbst, 304 U.S.
458, 464 (1938) (internal quotation marks and citation omitted). Specific to
the right to conflict-free counsel, to determine whether a valid waiver has been
made, “we must search the record for a basis upon which to conclude” that the
defendant had “actual knowledge of the existence of the right,” “full
understanding of its meaning,” and “clear comprehension of the consequence
of the waiver.” United States v. Newell, 315 F.3d 510, 519 (5th Cir. 2002)
(emphasis omitted).
      Here, we discern no error in the district court’s acceptance of
Youngblood’s waiver. The district court went to substantial lengths to ensure
that Youngblood understood his right and understood the consequences of
waiving it.    Beyond merely questioning Youngblood, the district court
appointed an FPD, an independent attorney, to counsel Youngblood about this
particular issue. All three attorneys who spoke to Youngblood—the FPD and
Youngblood’s     two    attorneys—expressed     confidence     that    Youngblood
understood his right and was making a knowing waiver of that right.
      Youngblood’s central argument on appeal is that the district court did
not expressly explain to him that his counsel’s prior representation of Delilah
might deter his counsel from calling Delilah in his defense. This claim is belied
by the record.       Although much of the district court’s discussion with
Youngblood is focused on the potential that Delilah will be called as a witness,
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                                      No. 12-31161
the district court also made clear that the conflict of interest may “affect the
way that, for instance, your lawyers select the jury in this case or call witness
in this case[.]”    Youngblood indicated that he understood these risks and
nonetheless wished to waive his right. Given these factors—the substantial
questioning by the district court and the discussions with both his own
attorneys and independent counsel—we hold that the district court did not err
in accepting Youngblood’s waiver. 1
                                            IV.
       Finally, we address Youngblood’s argument that the district court erred
in considering the suppressed crack cocaine in determining Youngblood’s
sentence. As an initial matter, it is settled in this circuit that suppressed
evidence may be considered generally when sentencing.                   United States v.
Montoya-Ortiz, 7 F.3d 1171, 1181 (5th Cir. 1993) (agreeing with a prior
decision that “evidence suppressed at trial for violation of the Fourth
Amendment may later be considered in determining a defendant’s base offense
level under the Guidelines”). Youngblood argues that this case fits into an
exception to that rule recognized in Montoya-Ortiz; namely, that the
suppressed evidence should not be considered at sentencing because it “was
unconstitutionally seized for the sole purpose of enhancing [Youngblood’s]
sentence.” Id. at 1181 n.10.
       Montoya-Ortiz left the door open for this circuit to adopt such an
exception without explicitly endorsing it.              Because, even assuming the



       1Even if we reached the opposite conclusion, Youngblood would be unable to establish
a Sixth Amendment violation. Such a violation requires showing that the conflict of interest
prevented counsel from pursuing a plausible alternative defense. United States v. Infante,
404 F.3d 376, 393 (5th Cir. 2005). Here, Youngblood argues that his wife could have testified
that the contraband belonged to her. This defense is hardly plausible in the light of the
substantial evidence that the Government presented that would plainly establish that such
testimony would be untrue.
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exception exists, Youngblood would not prevail on this issue, we take the same
course. Youngblood points to several facts that he argues demonstrate that
the drugs were seized for the sole purpose of increasing his sentence: (1) the
intimate involvement of Detective Burkett, a narcotics officer, in the search;
(2) the execution of the warrant including the search of “every conceivable
container in the house”; and (3) the fact that he was prosecuted for the drug
offense in federal court while charges were also pending in state court.
      We hold that these circumstances are not sufficient to establish that the
crack cocaine was seized for the sole purpose of increasing Youngblood’s
sentence. First, although Detective Burkett was involved in the search, it was
in fact one of the officers investigating Youngblood for attempted murder who
found the crack cocaine. Second, Youngblood asserts that “every conceivable
container in the house” was searched, but cites no examples beyond the single
cereal box. Without more context, it is impossible to say that other containers
that were searched were beyond the legitimate scope of the warrant. Finally,
we are unwilling to read illicit motives into a prosecutor’s decision to bring
charges when a crime has undoubtedly been committed, particularly a crime
serious enough to warrant nearly ten years in prison. In sum, we hold that
Youngblood has not established that the crack cocaine was seized for the sole
purpose of increasing his sentence, and we therefore do not decide whether
such an exception is proper.
                                      V.
      For these reasons, Youngblood’s conviction and sentence are
                                                                   AFFIRMED.




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