                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 05a0971n.06
                           Filed: December 14, 2005

                                         Case No. 03-5055

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

 UNITED STATES OF AMERICA,                             )
                                                       )
         Plaintiff-Appellee,                           )
                                                       )       ON APPEAL FROM THE
                 v.                                    )       UNITED STATES DISTRICT
                                                       )       COURT FOR THE EASTERN
 JERRY LAMAR JENKINS, II,                              )       DISTRICT OF TENNESSEE
                                                       )
         Defendant-Appellant.                          )
                                                       )
 _______________________________________               )

BEFORE: KEITH, KENNEDY, and BATCHELDER, Circuit Judges.

       ALICE M. BATCHELDER, Circuit Judge. Jerry Lamar Jenkins (“Jenkins”) appeals his

sentence imposed after a jury convicted him of conspiracy to steal explosives, in violation of 18

U.S.C. §§ 371 and 844(k); stealing explosives, in violation of 18 U.S.C. § 844(k); interstate

transportation of a stolen vehicle, in violation of 18 U.S.C. § 2312; carrying an explosive during the

commission of a felony, in violation of 18 U.S.C. § 844(h); concealing stolen explosive materials,

in violation of 18 U.S.C. § 842(h); and possession of explosives by a felon, in violation of 18 U.S.C.

§ 842(i)(1). The district court sentenced Jenkins to 501 months in prison and Jenkins filed this

timely appeal, challenging his conviction and the calculation of his guideline range under the United

States Sentencing Guidelines and the district court’s treatment of the guidelines as mandatory. We

will affirm Jenkins’s conviction, but we must remand this case for re-sentencing under United

States v. Oliver, 397 F.3d 369 (6th Cir. 2005).
                            I. Factual and Procedural Background

       Jenkins, Michael Joyner (“Joyner”), Robert Gifford (“Gifford”) and Jesse Debter (“Debter”)

decided to steal explosives from a Wright Brothers Construction Company work site in Tiftonia,

Tennessee, on March 26, 2001. The site was entirely fenced and locked with a universal Caterpillar

lock. Jenkins and Joyner had Jenkins’s 17-year-old girlfriend, Tiffany Langston, drop them off at

the site that night. After gaining access to the site and determining that they could not break into

the boxes in which the explosives were stored, they called Debter and asked him to help them.

Gifford then arrived with a hacksaw, which proved ineffective, so Jenkins and Gifford stole the

construction company’s pickup truck and drove off, returning eventually with a “jiffy saw” and beer.

Using the jiffy saw, the men were able to open the boxes; they loaded the explosives into the truck

and drove it across the state line to Jenkins’s mother’s house in Trenton, Georgia, where they

unloaded the explosives into the garage. Jenkins, Joyner, and Gifford then drove the pickup to

Jenkins’s house in Tiftonia, and Joyner drove the truck to Aetna Mountain and abandoned it.

       Over the course of the next two days, the men moved some of the explosives around, burying

some in the woods. Jenkins indicated to his co-conspirators that he wanted to “take out” the Dade

County Jail and the Hamilton County Jail, as well as the Franklin Building, where the offices for the

Bureau of Alcohol, Tobacco and Firearms were located. Joyner later overheard Jenkins tell

Langston that Joyner was a liability and that Jenkins would take Joyner out into the woods where

Langston could shoot him in the head. Joyner, who believed that Jenkins had shot him once before

and had fired a gun in his direction on another occasion, began cooperating with ATF agents and

told them where to find the explosives. The agents secured search warrants and seized the

explosives.


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       Jenkins was originally charged in a three-count indictment with receiving, possessing and

concealing stolen explosives. A superseding indictment charged Jenkins, Gifford, Debter, and

Joyner with the same offenses. Jenkins’s three codefendants all pled guilty on December 20, 2001,

pursuant to plea agreements. Jenkins at that time made a motion to remove his appointed counsel,

and the court, after thoroughly warning him of the consequences of having his motion granted and

the perils of representing himself, permitted him to represent himself for the remainder of the

hearing with the federal public defender as standby counsel.

       On January 8, 2002, the grand jury returned a nine-count second superseding indictment,

charging Jenkins with conspiracy to steal explosives from Wright Brothers (Count One); stealing

explosives from Wright Brothers (Count Two); interstate transportation of a stolen vehicle (Count

Three); carrying an explosive during the commission of a felony (Count Four); concealing stolen

explosive materials (Count Five); possession of explosives by a felon (Count Six); possession of a

firearm by a felon (Count Seven); threatening to murder a federal law enforcement officer (Count

Eight); and attempting to corruptly persuade a witness (Count Nine). This indictment named

Jenkins’s former co-defendants as unindicted coconspirators. Jenkins again demanded to represent

himself, and the district court found that Jenkins understood the disadvantages and his constitutional

rights and determined that he wished to proceed pro se.

       Trial was held March 11-13, 2002. Langston, who was 17 at the time when the crimes were

committed, testified that she knew of the men’s illegal purposes when she took Jenkins and Joyner

to the site and that the day after the theft, when a story about it appeared on the news, Jenkins had

told her that he had actually stolen the explosives. Debter and Gifford both testified to their own

involvement in the scheme and that Jenkins had been the ringleader. ATF Special Agent Cordell


                                                  3
Malone testified that he was the agent assigned to the case and that he executed a search warrant on

the Jenkins property in Trenton, Georgia, on August 31, 2001. Malone interviewed Jenkins the same

day and Jenkins admitted to being involved in the theft of the explosives and showed Malone where

to dig to find the buried explosives. The agents recovered from the Jenkins property 955 12-ounce

boosters, 1677 blasting caps, three rolls of “trunk line,” and a Caterpillar key. Marty Thomas, an

inmate who shared a cell with Jenkins, testified that Jenkins had said that he originally wanted to

sell the explosives but later decided to blow up two federal buildings instead. The jury also received

as evidence a statement signed by Jenkins in which he admitted to stealing the explosives,

transporting the truck across state lines, and hiding the explosives.

       The jury found Jenkins not guilty of firearm possession, threatening a law enforcement

officer, and attempting to corruptly persuade a witness, and guilty of all of the remaining counts.

At sentencing on August 16, 2002, Jenkins objected to the pre-sentence investigation report’s

recommendations but the district court overruled the objections and found his guideline range to be

444 to 525 months. The court treated the sentencing guidelines as mandatory and imposed a term

of 21 months’ imprisonment on Count One and consecutive terms of 120 months’ each for Counts

Two, Three, Four, and Six. The court imposed no sentence for Count Five. Finally, the court

ordered restitution to compensate Wright Brothers’ insurer because, although the explosives were

recovered, they could no longer be used. Jenkins filed this timely appeal.

                                   II. Conviction on Count IV

       Jenkins challenges his conviction on Count IV of the second superseding indictment, which

charged him with carrying an explosive during the commission of a felony–specifically, the

interstate transportation of a stolen motor vehicle. The statute under which he was convicted, 18


                                                  4
U.S.C. § 844(h)(2), states that a person who “carries an explosive during the commission of any

felony which may be prosecuted in a court of the United States . . . shall, in addition to the

punishment provided for such felony, be sentenced to imprisonment for 10 years.” Jenkins argues

that the carrying of the explosives that violated this section was “merely incidental” to the

underlying crime, which was the theft of the explosives. This argument has two distinct points.

       In essence, Jenkins’s first point is that he should not be convicted under § 844(h)(2) for

carrying the explosives during the commission of another felony because he had to commit the other

felony in order to steal the explosives in the first place, and his conviction under § 844(h)(2)

therefore constitutes double jeopardy. Jenkins premises this argument on his claim that the predicate

felony here is the theft of the explosives. This premise is obviously false, inasmuch as the

indictment explicitly charges Jenkins with carrying the explosives during the commission of the

offense of interstate transportation of a stolen motor vehicle.          Furthermore, Congress has

unequivocally stated that punishment under § 844(h)(2) must run consecutively to punishment for

the felony in which the explosive was used or carried: “. . . nor shall the term of imprisonment

imposed under this subsection run concurrently with any other term of imprisonment including that

imposed for the felony in which the explosive was used or carried.” 18 U.S.C. § 844(h). Where

Congress has shown its clear intent to punish two offenses separately, a defendant’s cumulative

punishment for the same conduct that violates two statutes does not constitute double jeopardy. See

United States v. Davis, 306 F.3d 398, 417-18 (6th Cir. 2002).

       Jenkins’s second point is that Congress did not intend to punish the theft of explosives under

§ 844(h)(2), because it made the theft itself a specific crime. The intent of this section was to punish

the use of explosives to further another crime, he argues, and the government was required to, but


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did not, show that the explosives were used to further the commission of the underlying crime. The

circuits differ in the way they interpret the statute.

        In United States v. Rosenberg, 806 F.2d 1169 (3d Cir. 1986), the defendants were convicted

of a violation of § 844(h)(2) for carrying explosives while committing the felony of possessing

firearms. Id. at 1177. The defendants appealed, claiming that the government had shown no specific

connection between the carrying of the explosives and the commission of the felony. Id. The court

began its examination of the issue by noting that no court had explicitly decided whether the statute

requires the government to prove a connection between the carrying of the explosive and the

underlying felony. Id. (citing United States v. Lopez, 586 F.2d 978, 979 (2d Cir. 1978), United

States v. Tiche, 424 F. Supp. 996, 1000 (W.D. Pa. 1977), United States v. Pliskow, 354 F. Supp. 369,

370 (E.D. Mich. 1973)). The legislative history of the section provided only that Congress’s intent

was to strengthen federal laws regarding the illegal use, possession, and transportation of explosives

and that § 844(h) was to carry with it the “stringent provisions of the Gun Control Act of 1968

relating to the use of firearms and the unlawful carrying of firearms to commit, or during the

commission of a Federal felony.” Id. at 1178 (citing H.R. No. 1549, 91st Cong, 2d Sess., reprinted

in 1970 U.S. Code Cong. & Ad. News 4007, 4046).

        Both parties in Rosenberg and the court itself therefore looked to 18 U.S.C. § 924(c) in

interpreting § 844(h). Before 1984, § 924(c) provided that “[w]hoever . . . uses a firearm to commit

any felony . . . or . . . carries a firearm unlawfully during the commission of any felony . . . .” is

guilty of an offense. 18 U.S.C. § 924(c) (1983). The section was amended in 1984 to provide that,

“[w]hoever, during and in relation to any crime of violence . . . uses or carries a firearm” is guilty

of an offense. 18 U.S.C. § 924(c) (1984).


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       The Rosenberg court noted that the Ninth Circuit, in United States v. Steward, 779 F.2d 538

(9th Cir. 1985), had held that the amendments to this section did not change the meaning of the

section and that the “carry” language had always meant “carry in relation to.” Id. (citing Steward,

779 F.2d at 539-40). Rosenberg did not find the Steward court’s rationale persuasive and noted

simply that the legislative history was insufficient to support any finding as to why Congress

modified § 924(c) in that manner, that Congress did not similarly modify § 844(h), and that

“Congress’s decision to amend § 924(c), but not § 844(h), is, at best, open to a multiplicity of

interpretations.” Id.

       The court then returned to the plain language of § 844(h) and found that the section, “by its

terms only requires that the government show that the defendant unlawfully carried an explosive

‘during the commission of any felony.’” Id. Noting that it was not proper for the court to “declare

that the crime defined by § 844(h)(2) has more elements than those enumerated on the face of the

statute,” the court said that Congress was free “to add a relational element to § 844(h)(2) . . . in the

same manner that it added a relational element to § 924(c),” but until it did so, the Third Circuit

would “hold that § 844(h)(2) has no relational element.” Id. at 1179.

       The Fifth Circuit, however, in United States v. Ivy, 929 F.2d 147 (5th Cir. 1991), said that,

although “[a] defendant need not brandish, point, or discharge a weapon to ‘carry’ or ‘use’ the

weapon,” a jury can conclude that the defendant “carried” the weapon for the purposes of § 844 “[i]f

the weapon was available to facilitate the crime or if it ‘emboldened’ a defendant in his

offense . . . .” Id. at 151. The court then found that the jury verdict was supported because,

       [i]f [the defendant] had needed to terrorize [the victim] further to ‘persuade’ her to
       accompany him, the bomb was readily available. [The defendant] knew that [the
       victim] had been frightened previously by his reference to explosives and could be
       coerced easily if he chose to display the bomb. The evidence was sufficient to

                                                   7
        support the jury’s conclusion that the bomb facilitated the kidnapping and
        established an offense under § 844.

Id.

        In United States v. King, 230 F.3d 1364 (Table), 2000 WL 1277815 (8th Cir. 2000), the court

first upheld a jury conviction for possessing an illegal firearm and then stated that it also rejected

the defendant’s “claim that there is insufficient evidence to support his conviction for carrying

explosives while committing a felony, for once the jury found that he possessed an illegal firearm,

his conviction for carrying explosives followed as of course.”

        We think that Rosenberg and King correctly interpret the statute. Because § 844(h) does not

contain the “in relation” language that § 924(c) does, but rather defines the offense as “carr[ying]

an explosive during the commission of [the] felony,” the plain language of the statute does not

require a relational element. We therefore affirm Jenkins’s conviction on this count.

                                            III. Jury Bias

        Jenkins argues that he was prejudiced by the district judge’s statement to the group of

potential jurors prior to selection that Jenkins was representing himself and that he had been warned

against doing so, which made him look guilty and as if his defenses were weak. The statement to

the jury that Jenkins feels prejudiced him reads:

        THE COURT: In this case defendant Jerry Jenkins has decided to exercise his
        constitutional right to represent himself. Both this Court and United States
        Magistrate Judge William Carter have advised the defendant of the pitfalls he faces
        in representing himself. We have also told him we believe he is making a mistake,
        and that he would be better off having a trained attorney represent him. Despite our
        advice, however, defendant is representing himself today.

Because Jenkins did not object to this instruction at trial, we review it for plain error. FED. R. CRIM.

P. 52(b); Johnson v. United States, 520 U.S. 461, 467 (1997). A plain error is one that “directly


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leads to a miscarriage of justice,” United States v. Camejo, 333 F.3d 669, 672 (6th Cir. 2003), and

an appellant must show (1) an error, (2) that is plain, (3) that his substantial rights were affected, and

(4) that the error seriously affected the fairness, integrity, or public reputation of the judicial

proceedings in order to prevail. Johnson, 520 U.S. at 467.

        Jenkins cites no authority to support his claim that the trial court erred at all in giving this

instruction; much less does he show how the instruction affected his substantial rights or affected

the fairness, integrity, or public reputation of the judicial proceedings. This assignment of error is

wholly meritless.

                                   IV. Eighth Amendment Claim

        Jenkins argues that his 501-month sentence of imprisonment violates the Eighth

Amendment’s prohibition against cruel and unusual punishment because his co-defendants received

sentences of only 18 and 21 months for the same conduct. Jenkins argues that he objected to the

court’s refusal to grant a downward departure at sentencing and that the court did not recognize that

it could depart downward based on the disparity of sentences his co-defendants received.

        We reject Jenkins’s Eighth Amendment claim. See United States v. Layne, 324 F.3d 464,

474 (6th Cir. 2003) (finding no merit to defendant’s argument that her sentence offended the Eighth

Amendment “merely because it [was] disproportionate to the sentences received by others who

committed the same or similar crimes.”). And, we have held that Booker did not change our

consistent rule that a district court’s decision not to depart downward from the guideline range is

not appealable unless there is a showing that the district court refused to depart under the mistaken

belief that it did not have the legal authority to do so. See United States v. Puckett, 422 F.3d 340,

345 (6th Cir. 2005). Because it is not clear from the record, however, whether the district court


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recognized its authority to depart downward, even though the disparity of sentences among

defendants is discouraged by the guidelines as a basis for downward departure, and because we must

remand this case for resentencing under Oliver, we decline to review further Jenkins’s claim that the

district court erred in refusing to depart downward. The district court will have the opportunity to

revisit the issue in light of the now non-mandatory guidelines as well as this circuit’s case law. See,

e.g., United States v. Epley, 52 F.3d 571, 584 (6th Cir. 1995) (refusing to grant a downward

departure where there existed a disparity between the defendant’s sentence and those of unindicted

co-conspirators); United States v. LaSalle, 948 F.2d 215, 218 (6th Cir. 1991) (refusing to grant a

downward departure to bring the defendant’s sentence in line with his co-defendants’ sentences).

                                  V. Remand for Re-Sentencing

         In United States v. Booker, 125 S. Ct. 738 (2005), the Supreme Court held that the mandatory

federal sentencing guidelines violated the Sixth Amendment by requiring judges to enhance the

sentences of defendants based on facts not found by a jury or admitted by the defendant. The Sixth

Amendment holding of Booker is to be applied to all cases on direct review according to ordinary

prudential doctrines. Id. at 769. Jenkins’s sentence was enhanced, pursuant to the mandatory

federal sentencing guidelines in place at the time, based on the district court’s findings by a

preponderance of the evidence that Jenkins had “used” a minor in the commission of the offense,

see U.S.S.G. § 3B1.4; played a leadership role in the criminal enterprise, see U.S.S.G. § 3B1.1(a);

obstructed justice, see U.S.S.G. § 3C1.1; stolen over 1,000 pounds of explosives, see U.S.S.G. §

2K1.3(b)(1)(E); and that the object of stealing the vehicle was to steal explosives, see U.S.S.G. §

2B1.1.




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       In accordance with our precedent, the error of imposing a sentence enhanced by facts not

found by the jury is plain, and the prejudice is presumed. United States v. Oliver, 397 F.3d 369,

378-80 (6th Cir. 2005). Accordingly, we must remand this case to the district court for re-

sentencing, with instructions to treat the sentencing guidelines as advisory.

                             VI. Calculation of the Guideline Range

       Although the case must be remanded under Oliver, in the interests of judicial economy, we

will review Jenkins’s claims of error in the calculation of his guidelines sentence, because Booker

instructed sentencing courts to take the guidelines into account when determining a defendant’s

sentence. Booker, 125 S. Ct. at 764. In United States v. Davidson, 409 F.3d 304 (6th Cir. 2005),

we determined that, based on Booker’s instructions, we must review a district court’s application

of the guidelines in the same way that we did before Booker because, although the guidelines are

no longer mandatory, they do form a starting point for the district court’s determination of the

defendant’s sentence. Id. at 310 (citing United States v. Scott, 405 F.3d 615 (7th Cir. 2005); United

States v. Skoczen, 405 F.3d 537 (7th Cir. 2005); United States v. Crosby, 397 F.3d 103 (2d Cir.

2005); United States v. Chriswell, 401 F.3d 459 (6th Cir. 2005); United States v. Hughes, 401 F.3d

540 (4th Cir. 2005)).

       We review de novo the district court’s interpretations of the sentencing guidelines, and we

review its factual findings for clear error. United States v. Burke, 345 F.3d 416, 428 (6th Cir. 2003).

We must defer to the district court’s application of the guidelines to the facts. United States v.

Charles, 138 F.3d 257, 266 (6th Cir. 1998).

       The district court enhanced Jenkins’s base offense level by two points for “use” of a minor

in the commission of the offense under U.S.S.G. § 3B1.4 based on Langston’s driving Jenkins and


                                                  11
Joyner to the construction site. Pointing to our statement in United States v. Butler that, “[i]n

determining whether a defendant ‘used or attempted to use’ a minor so as to warrant a § 3B1.4

enhancement, a sentencing court should bear in mind that ‘used or attempted to use’ includes

directing, commanding, encouraging, intimidating, counseling, training, procuring, recruiting, or

soliciting,” 207 F.3d 839, 846 (6th Cir. 2000), Jenkins argues that the government failed to prove

that Langston did not freely participate in the offense.

       The main issue in Butler, however, was whether an enhancement under USSG § 3B1.4 for

using a minor in the commission of the crime was proper where the evidence tended to show that

the defendant and the minor were partners in the crime but the defendant had not affirmatively

encouraged the minor’s participation, although another participant may have done so. Id. at 849.

We stated that “the enhancement should apply when a defendant takes affirmative acts to involve

a minor,” id. at 848, and remanded the case to the district court for re-sentencing because “the

district court did not find that [the defendant] directed, commanded, intimidated, counseled, trained,

procured, recruited, or solicited [the minor’s] participation in the bank robbery.” Id. at 849.

       Jenkins also argues that he could not have “used” Langston in the commission of the offense

because she had no idea what he and Joyner would be doing at the site. USSG § 3B1.4, however,

“does not impose a knowledge requirement on the minor who is used in the commission of the

offense.” United States v. Campbell, 275 F.3d 1078, 2001 WL 1465462, *2 (Table) (5th Cir. 2001)

(citing United States v. Boudreau, 250 F.3d 279, 285 (5th Cir. 2001)).

       We believe that Butler requires the district court to re-examine the use of this particular

sentencing enhancement. While it very well may be that Jenkins “used” Langston in the way

contemplated by the sentencing guidelines, the district court did not make any findings in that


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regard, and indeed refused to make any finding as to who procured Langston’s participation, stating

that it was not “material to the calculation of the guidelines.” See Butler, 207 F.3d at 848-49. On

remand, should the district court determine that this enhancement is appropriate, the court should

make specific findings with regard to Jenkins’s “use” of Langston.

       Jenkins has raised several other alleged errors relating to the calculation of his guideline

range for sentencing purposes but, after careful consideration of each of those claims, we find no

error in those calculations.

                                         VII. Restitution

       The district court ordered Jenkins to pay $12,720.15 in restitution based on the value of

explosives stolen because, although they were recovered, they were no longer usable. At sentencing

and on appeal, Jenkins argues that all of the stolen explosives were returned to the victim in good

condition and the victim incurred no monetary loss. He also noted that the three other co-defendants

who had pleaded guilty had also been ordered to make restitution in the same amount, which would

result in a windfall to the victim or its insurance company.

       We review de novo the issue of whether a restitution order is permitted; we review for abuse

of discretion the amount of that restitution. United States v. Butler, 297 F.3d 505, 516 (6th Cir.

2002) (citing United States v. Comer, 93 F.3d 1271, 1278 (6th Cir. 1996)); United States v. Bearden,

274 F.3d 1031, 1040 (6th Cir. 2001).

       Under 18 U.S.C. § 3663A, a sentencing court shall impose restitution as a component of a

defendant’s sentence, for, among other things, crimes against property. 18 U.S.C. §§ 3663A(a)(1)

and (c)(1)(A)(ii). The statute requires that where the offense has resulted in damage to or loss or

destruction of property of a victim of the offense, and the property cannot be returned, the amount


                                                13
of the restitution be the greater of the value of the property on the date of its damage or destruction

or the value of the property on the date of sentencing less the value of any part of the property that

was returned. 18 U.S.C. § 3663A(b)(1)(B).

        Jenkins cites Butler for the proposition that the district court cannot adopt the pre-sentence

investigation report’s recommendation as to the amount of restitution, even if the district court

plainly states in its order the amount of restitution to be paid. Jenkins entirely misstates Butler’s

holding. That case held that the district court may not order restitution in an unspecified amount and

delegate to another entity the determination of the amount of restitution to be ordered, but must

make that finding explicitly in the restitution order. 297 F.3d at 519 (citing United States v. Johnson,

48 F.3d 806, 809 (4th Cir. 1995); Weinberger v. United States, 268 F.3d 346, 360 (6th Cir. 2001)).

        Here, the district court’s sentencing order specifically adopted the factual findings of the pre-

sentence investigation report, including the amount of the claim for the explosives paid by the

insurance company, specifically ordered restitution in that amount, and specifically ordered that

Jenkins would be responsible for restitution only up to the amount of the victim’s loss, taking into

account the amount paid in by the other defendants. Jenkins did not offer any evidence at sentencing

or in his objections to the pre-sentence report that the recovered explosives were still useable,

despite their having been buried for several months, or that the value of the explosives was other

than the amount of the claim paid by the insurance company. Jenkins’s objection is meritless.

                                        VIII. Pro Se Claims

        Jenkins raised four allegations of evidentiary errors or government misconduct in his pro se

brief to this court. He alleges that the district court improperly admitted the testimony of an expert

witness as to the capability of the stolen explosives to do damage, that he was denied access to non-


                                                   14
lawyer friends with whom he wished to confer in the preparation of his case, that he was entrapped

because of Joyner’s participation in the offense and his subsequent assistance with the prosecution,

and that all of the witnesses that testified at his trial were given some sort of benefit by the

government in exchange for their testimony. Although we do not ordinarily consider pro se claims

brought by a defendant represented by counsel on appeal, we have, in an abundance of caution,

reviewed them, and we find them to be entirely without merit.

                                         IX. Conclusion

       For the foregoing reasons, we AFFIRM Jenkins’s conviction in its entirety. We VACATE

Jenkins’s sentence and REMAND the case to the district court for re-sentencing.




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