                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                     F I L E D
                  IN THE UNITED STATES COURT OF APPEALS              December 2, 2003
                          FOR THE FIFTH CIRCUIT
                                                                 Charles R. Fulbruge III
                                                                         Clerk

                                  No. 02-21355
                                Summary Calendar



                          UNITED STATES OF AMERICA,

                                                        Plaintiff-Appellee,

                                     versus

            JOSEPH LEE HOWARD; CORDELL HORACE BAUSLEY,
          LLOYD BATTLES, also known as Lloyd Richardson,

                                                     Defendants-Appellants.

                        --------------------
           Appeals from the United States District Court
                 for the Southern District of Texas
                       USDC No. H-02-CR-373-2
                        --------------------

Before SMITH, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

      Joseph Lee Howard, Cordell Horace Bausley, and Lloyd Battles

appeal their convictions and sentences for conspiracy (count one)

and possession with intent to distribute more than 50 grams of

crack cocaine and aiding and abetting (count two).                   21 U.S.C.

§§   841(a)(1),    846;    18   U.S.C.   §   2.    Howard   argues   that    the

Government offered insufficient evidence of his guilt of the aiding

and abetting portion of count two.            However, Howard’s actions 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this opinion should not be published and is not precedent except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.
admissions sufficiently showed that he associated with Bausley and

Battles in a criminal venture involving more than 400 grams of

crack cocaine, that he voluntarily participated in the venture, and

that he sought by his actions to make the venture succeed.           See

United States v. Fierro, 38 F.3d 761, 768 (5th Cir. 1994).       Thus,

the evidence was sufficient to support Howard’s conviction for

aiding and abetting possession with intent to distribute 50 grams

or more of crack cocaine.   See United States v. Mendoza, 226 F.3d

340, 343 (5th Cir. 2000).

     Bausley argues that the evidence was insufficient to support

his convictions on both the conspiracy charge and the substantive

charge of possession with intent to distribute.          The evidence

showed that Bausley agreed with Howard to participate in the

distribution of more than 50 grams of crack cocaine and that both

parties voluntarily joined and participated in the conspiracy. See

United States v. Garcia Abrego, 141 F.3d 142, 155 (5th Cir. 1998).

The evidence at trial was thus sufficient to support Bausley’s

conspiracy conviction as well as the aiding and abetting portion of

count   two.   Because   co-conspirators   may   be   liable   for   the

substantive offenses committed by other members of the conspiracy

in furtherance of the common plan, and because Bausely’s sale of

the $20 sample to the Government’s confidential source showed

constructive possession, the evidence was sufficient to support his

conviction for possession with intent to distribute.       See United

States v. Lopez, 979 F.2d 1024, 1031 (5th Cir. 1992).

                                 2
       Howard and Bausley argue that the district court erred when it

refused to instruct the jury on the issue of entrapment.              Neither

Howard nor Bausley has made an adequate showing of either “(1) his

lack   of   predisposition    to    commit    the   offense   [or]   (2)    some

governmental    involvement    and    inducement     more   substantial     than

simply   providing   an   opportunity       or   facilities   to   commit   the

offense.”    See United States v. Gutierrez, 343 F.3d 415, 419 (5th

Cir. 2003)(internal quotation marks and citation omitted). Neither

Bausley nor Howard has presented “substantial evidence that it was

the Government that was responsible for the formation of [their]

intent to join the conspiracy.”            United States v. Ogle, 328 F.3d

182, 187-88 (5th Cir. 2003).          Thus, there was no basis for the

requested instruction.       Id.

       Howard argues that the district court erred in assessing,

pursuant to U.S.S.G. § 2D1.1(b)(1), a two-level increase in his

sentencing guideline range for possession of a weapon.                Special

agents located a total of 12 loaded firearms inside Battles’ house,

where the drug transaction was to occur, as well as two-way radios,

cellular phones, more than $25,000 in cash, surveillance cameras,

and a bullet proof-vest.           Also inside the house were 500.1 net

grams of powder cocaine as well as the crack cocaine the defendants

were planning to sell to the confidential source. The weapons were

connected to the drug operation and were foreseeable to Howard

based on his admitted employment by Battles and his presence

outside the house when trying to help complete the transaction.

                                       3
See United States v. Gaytan, 74 F.3d 545, 559 (5th Cir. 1996).

      Howard’s argument that he should have received a decrease in

his offense level for his minor or mitigating role is unavailing.

The record contains sufficient evidence to show that Howard was

more than peripheral in the crack cocaine distribution conspiracy.

He   admitted    he   was   paid    by    Battles     to   find     out    what   the

confidential source wanted, to negotiate a price, and bring the

confidential source to the house.              His phone calls with Bausley

also indicate that his involvement was more than peripheral. Thus,

the district court’s finding that Howard was not a minor or minimal

participant was plausible in light of the record as a whole, and it

did not clearly err in refusing a U.S.S.G. § 3B1.2 adjustment.                    See

United States v. Miranda, 248 F.3d 434, 446-47 (5th Cir. 2001).

      Battles’    argument   that    21      U.S.C.   §§   841(b)    and    846   are

unconstitutional on their face in light of Apprendi v. New Jersey,

530 U.S. 466 (2000), is foreclosed by this court’s opinion in

United States v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000).

      AFFIRMED.




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