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

                                                                            FILED
                                                                           May 10, 2013

                                       No. 12-30515                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff – Appellee
v.

BRIAN RIGGINS, also known as Snag Riggins, also known as B. Riggins,

                                                  Defendant – Appellant



                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:09-CR-143-1


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
       Brian Riggins (“Riggins”) was convicted on Count 1 for conspiracy to
distribute cocaine hydrochloride in violation of 21 U.S.C. § 846, on Count 2 for
possession with the intent to distribute cocaine hydrochloride and cocaine base
(“crack”) in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), on Count 3 for
possession of firearms in furtherance of a drug trafficking crime in violation of
18 U.S.C. § 924(c), on Count 4 for being a felon in possession of a firearm in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and on Count 5 for possession

       *
        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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-30515

of a short-barreled shotgun in furtherance of a drug trafficking crime in violation
of 18 U.S.C. § 924(c)(1)(B)(i). He appeals his convictions and sentences. We
AFFIRM the convictions, VACATE the sentences for Counts 3 and 5, and
REMAND for resentencing.
                                        I
      The investigation into Riggins’s drug-related activities began when a
confidential informant (“CI”) tipped Jefferson Parish Sheriff Lieutenant Daniel
Jewell (“Jewell”), informing Lieutenant Jewell of the nature of Riggins’s drug-
dealing activities and supplying Jewell with a description of Riggins and
Riggins’s vehicle. Lieutenant Jewell had worked with this CI for about four
years, a cooperation that resulted in thirty investigations, nineteen successful
prosecutions, and the convictions of twenty-three defendants. As a result of
those cases, law enforcement officials had seized sizeable quantities of drugs,
firearms, and illicit money. Based on the CI’s tip, Lieutenant Jewell ran a
background check on Riggins that revealed Riggins had two prior cocaine-related
convictions. The CI then told Jewell he and a relative drove to Riggins’s house,
which the officers later ascertained to be Riggins’s girlfriend’s house and where
Riggins actually lived. The relative went into Riggins’s house then returned to
the car, where the CI was waiting. The relative told the CI that Riggins had
“bricks” of cocaine. Jewell then decided to conduct surveillance on Riggins’s
house.
      The next day, Lieutenant Jewell, along with other officers, surveilled
Riggins’s house. A man matching the CI’s description of Riggins arrived with a
child in a vehicle matching the CI’s description of Riggins’s vehicle, and the two
entered the house. Shortly afterward, Lieutenant Jewell decided to leave the


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                                  No. 12-30515

scene to prepare a search warrant for the residence. Riggins then left the house
alone and began driving away, tailed by the officers, as Jewell was preparing the
search warrant. Jewell ordered the officers at the scene to stop Riggins, so they
pulled Riggins over. They observed Riggins make movements between his
driver’s seat and the center console, so they ordered Riggins out of the vehicle
and placed him in handcuffs. Two officers looked through the driver’s side
window and observed what they believed to be a quantity of cocaine between the
driver’s seat and the center console.
      The officers asked Riggins where he resided and whether he was driving
from his home. Riggins gave an address where his father resided and claimed
he was coming from there instead of the address where he actually resided, his
girlfriend’s house. The officers took Riggins’s keys. They led a drug-sniffing dog
around the vehicle, and the dog indicated the presence of drugs at the driver’s
side door. Lieutenant Jewell, who was still drafting the search warrant for the
residence, then decided to draft a second warrant for the vehicle.
      Some officers then went to Riggins’s girlfriend’s house in anticipation of
the search warrant. They knocked on the door, were met by a 13-year-old
female, and performed a security sweep inside the house. Riggins’s girlfriend
then arrived at the house and told the officers Riggins slept there every night
and had a key. The officers tested Riggins’s key, and it worked on the door. At
around the same time, Lieutenant Jewell went to the scene of the vehicle with
the approved and signed search warrants in hand. He presented the vehicle
search warrant to Riggins, and the drug-sniffing dog was allowed into the
vehicle. The officers recovered cocaine from the area between the driver’s seat




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                                  No. 12-30515

and the center console. The officers arrested Riggins and took him to the
detective bureau.
      Lieutenant Jewell then drove to the residence and executed the other
search warrant with other officers. Inside, they found a drug ledger in the
kitchen, two digital scales and about nine kilograms of powder cocaine in the
garage, about $49,000 in cash in a drawer in the master bedroom, about $9000
in cash and a .38 caliber semiautomatic handgun in the bedroom cabinet, a .22
caliber Ruger on the headboard of the bed, a 12 gauge shotgun in the bedroom
closet, and a .410 caliber short-barrel shotgun next to the bed.         The two
handguns were loaded.
      At the detective bureau, officers read Riggins his Miranda rights and
asked if Riggins wanted to make a statement. Riggins said he did not want to
make a recorded statement, but did want to state that everything found in the
house belonged to him, not his girlfriend, and that he could not get a well-paying
job and did what he had to do to make a living.
      Riggins was indicted and filed a motion to suppress evidence from the
vehicle and the house, claiming the officers lacked reasonable suspicion to stop
the vehicle and probable cause to obtain the warrants. The district court found
the CI credible because of the CI’s history and because the CI’s information
about the vehicle Riggins used to transport drugs and about Riggins’s actual
address was corroborated by the surveillance. Based on these findings, the
district court found the officers had reasonable suspicion to stop the vehicle and
the warrants were supported by probable cause; therefore, the district court
denied the motion.




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      During Riggins’s trial, the district court conducted a James hearing
outside the presence of the jury in order to determine whether three co-
conspirator conversations recorded by wire tap and made by three individuals,
Troy Williams, Rodney Walker, and Kevin Phillips, were admissible under
Federal Rule of Evidence 801(d)(2)(E). United States v. James, 590 F.2d 575 (5th
Cir. 1979) (en banc); see also Bourjaily v. United States, 483 U.S. 171, 180–81
(1987). The district court found a preponderance of the evidence indicated the
existence of a conspiracy involving Riggins. Accordingly, the district court
admitted the co-conspirator statements. Another co-conspirator, Mark Houston,
testified at Riggins’s trial about his involvement in dealing drugs with Riggins.
Riggins was ultimately convicted on all five counts.
      At sentencing, Riggins objected to the consecutive sentences for Count 3,
possession of firearms in furtherance of a drug trafficking crime, and Count 5,
possession of a short-barreled shotgun in furtherance of a drug trafficking crime.
The district court found Count 5 second or subsequent to Count 3 because they
involved different firearms and overruled Riggins’s objection. The district court
sentenced Riggins to life imprisonment for each of Counts 1 and 2, 120 months
for Count 4 to be served concurrently with the sentences for Counts 1 and 2, 60
months for Count 3 to be served consecutively to the sentences for Counts 1, 2,
and 4, and 300 months for Count 5 to be served consecutively to all the other
sentences. Riggins timely appealed.
                                       II
      Riggins appeals his convictions and sentences, asserting 6 grounds: 1) the
officers unconstitutionally searched the vehicle and house; 2) the district court
erred in admitting evidence of a conspiracy; 3) there was insufficient evidence


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                                  No. 12-30515

for conviction on Counts 3 and 5, which relate to the possession of firearms in
furtherance of a drug trafficking crime; 4) he was subjected to double jeopardy
by being convicted on both Counts 3 and 5; 5) the conviction on Count 5, relating
to possession of the short-barreled shotgun, was not second or subsequent to the
conviction on Count 3, relating to possession of firearms; and 6) the life
sentences on Counts 1 and 2 violate the Eighth Amendment and due process.
The Government concedes Riggins’s related fourth and fifth points, and his
remaining points lack merit.
                                        A
      Riggins asserts the district court erred by denying his motion to suppress
because the officers lacked reasonable suspicion to stop his vehicle or probable
cause to arrest him pending completion of the search warrants. Riggins also
asserts the information Lieutenant Jewell incorporated into the applications for
the search warrants was gathered pursuant to this illegal arrest and an illegal
search of the house and constituted an intentional fabrication. Therefore,
Riggins maintains the officers were not justified in relying on the warrants. We
hold the district court did not err by denying the motion to suppress evidence
gathered from the vehicle stop or the execution of the search warrants.
      In reviewing the denial of a motion to suppress, we review factual findings
for clear error and legal conclusions de novo. United States v. Scroggins, 599
F.3d 433, 440 (5th Cir. 2010). “‘A factual finding is not clearly erroneous as long
as it is plausible in light of the record as a whole. Further, the evidence
presented at a pre-trial hearing on a motion to suppress is viewed in the light
most favorable to the prevailing party.’” United States v. Rodriguez, 564 F.3d
735, 740 (5th Cir. 2009) (quoting United States v. Jacquinot, 258 F.3d 423, 427


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(5th Cir. 2001)). “Where a district court’s denial of a suppression motion is based
on live oral testimony, the clearly erroneous standard is particularly strong
because the judge had the opportunity to observe the demeanor of the
witnesses.”   United States v. Montes, 602 F.3d 381, 384 (5th Cir. 2010).
“[F]ailure to raise specific issues or arguments in pre-trial suppression
proceedings operates as a waiver of those issues or arguments for appeal.”
Unites States v. Pope, 467 F.3d 912, 918–19 (5th Cir. 2006).
      First, we hold the officers did have reasonable suspicion to stop Riggins’s
vehicle. The district court made a factual finding that the CI was credible based
on the CI’s history of providing Lieutenant Jewell with important information
and the surveillance’s corroboration of certain aspects of the CI’s tips. The CI
had informed Lieutenant Jewell that his relative came out of Riggins’s house
with drugs and told the CI that Riggins had large quantities of drugs inside, and
the CI had described the vehicle that Riggins used to deliver drugs. Contrary
to Riggins’s assertion that the stop was illegal because it was based only on
pending search warrants, the district court made this factual finding of the CI’s
credibility, a finding that is not clearly erroneous, in support of the legal
conclusion that the officers had reasonable suspicion for the stop. As for
Riggins’s related assertion that the detention was an arrest without probable
cause in violation of Michigan v. Summers, 452 U.S. 692, 697 (1981), the issue
is waived because Riggins failed to raise it in the pre-trial suppression
proceedings. Pope, 467 F.3d at 918–19. Therefore, the district court did not err
by denying the motion to suppress based on the stop of the vehicle.
      Second, we hold the officers were justified in relying on the warrants when
seizing evidence from the vehicle and the house. We determine whether a


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seizure pursuant to a search warrant violates the Fourth Amendment using a
two-step inquiry. United States v. Allen, 625 F.3d 830, 835 (5th Cir. 2010).
First, we ask if the good-faith exception applies to the exclusionary rule; if so, we
affirm the denial of the motion to suppress. Id. The good faith exception asks
“whether a reasonably well trained officer would have known that the search
was illegal despite the magistrate’s authorization.” Id. (quoting United States
v. Leon, 468 U.S. 897, 923 n.23 (1984)). “[T]he evidence obtained during the
search is admissible . . . even if the evidence in the affidavit on which the
warrant was based was not sufficient to establish probable cause.” Allen, 625
F.3d at 835 (citations omitted). Second, and only if the good-faith exception is
inapplicable, we ask “whether the magistrate issuing the warrant had a
‘substantial basis for believing there was probable cause for the search.’” Id.
(quoting United States v. Davis, 226 F.3d 346, 351 (5th Cir. 2000)).
      Here, the good-faith exception applies, so we need not reach the
determination of whether there was a substantial basis for the magistrate to
believe there was probable cause for the search. Allen, 625 F.3d at 835. The
information included in the warrant applications that Riggins complains about,
namely the cocaine the officers saw through the vehicle window and the fact that
his key worked on his girlfriend’s house’s door, was gathered properly. As
discussed above, the officers had reasonable suspicion to stop the vehicle, so
their observation of the cocaine inside could be included in the application. The
officers tested the key only after Riggins’s girlfriend confirmed that Riggins lived
in the house. In addition, the district court found the information provided by
the CI was credible. All these factors support the officers’s good-faith reliance
on the search warrants, and Riggins does not provide support for his speculative


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claim that the officers lied in the applications. Therefore, the district court did
not reversibly err by denying the motion to suppress evidence gathered from the
execution of the search warrants.
                                        B
      Riggins raises two issues related to his conviction for conspiracy. First, he
asserts the district court erred in admitting the co-conspirator statements made
by Williams, Walker, Phillips, and Houston. As to the Houston testimony, he
asserts the scope of the James hearing was limited to statements by Williams,
Walker, and Phillips involving a conspiracy between Riggins and those three, so
any evidence from Houston that might show a separate conspiracy between
Riggins and Houston was inadmissible. As to the remaining testimony, he
asserts the evidence at the James hearing did not support a finding of a
conspiracy between Riggins and Williams, Walker, and Phillips, so the testimony
of Williams and Walker regarding the co-conspirator statements should not have
been admitted. Because Riggins did not object to the admission of the co-
conspirators’s testimonies at trial, we review those admissions for plain error.
United States v. Williams, 620 F.3d 483, 488–89 (5th Cir. 2010); see FED. R.
CRIM. P. 52(b).
      Second, Riggins asserts the evidence could show at most only a buyer-
seller relationship between Riggins, as the seller, and any or all of the four
others, as the buyers, and was therefore legally insufficient to support the
verdict’s conspiracy finding. Riggins moved for a judgment of acquittal under
Federal Rule of Criminal Procedure 29, so we review Riggins’s sufficiency
challenge de novo, asking “whether, viewing all the evidence in the light most
favorable to the verdict, a rational jury could have found that the evidence


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established the elements of the offense beyond a reasonable doubt.” United
States v. Ollison, 555 F.3d 152, 158 (5th Cir. 2009) (internal quotation marks
omitted).
      Riggins fundamentally misunderstands the purpose of a James hearing
in his challenge to the admission of Houston’s testimony. A James hearing
concerns only “statement[s] made by one member of a conspiracy during the
course of and in furtherance of the conspiracy” for purposes of Federal Rule of
Evidence 801(d)(2)(E) that are otherwise inadmissible hearsay (unless
admissible under a different Federal Rule of Evidence). James, 590 F.2d at 577.
Here, the only statements that the James hearing evaluated were the recorded
phone conversations between Williams, Walker, and Phillips concerning the
conspiracy with Riggins. Houston did not testify about otherwise inadmissible
statements. Therefore, the district court did not commit plain error by admitting
Houston’s testimony.
      Riggins challenges the admission of the testimonies of Williams and
Walker about their recorded conversations with Phillips on the basis that they
establish only a buyer-seller relationship, which is the same basis for his
challenge to the sufficiency of the evidence addressed below. The buyer-seller
exception “prevents a single buy-sell agreement, which is necessarily reached in
every commercial drug transaction, from automatically becoming a conspiracy
to distribute drugs.” United States v. Delgado, 672 F.3d 320, 333 (5th Cir. 2012)
(en banc).   However, “one becomes a member of a drug conspiracy if he
knowingly participated in a plan to distribute drugs, whether by buying, selling,
or otherwise.” Id. (internal quotation marks and alterations omitted). In the
recorded conversations Williams said he had bought powder cocaine from


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Riggins about twice a month in half-kilogram quantities during the fall of 2008
and he had bought a half-kilogram from Riggins the previous day. After
considering these statements and other evidence, such as the seized cocaine, the
district court determined the Government established the existence of a
conspiracy by a preponderance of the evidence and admitted the evidence.
Because the statements reference multiple transactions and the existence of the
conspiracy was supported by other evidence, the buyer-seller exception is
inapplicable and the district court did not commit plain error by admitting the
testimonies. See Delgado, 672 F.3d at 333.
      In addition, the Houston testimony alone constitutes sufficient evidence
for a rational jury to convict Riggins for conspiracy beyond a reasonable doubt.
Ollison, 555 F.3d at 158. To prove conspiracy, the Government must show three
elements: “(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. Turner, 319 F.3d
716, 721 (5th Cir. 2003) (internal quotation marks omitted). “As long as it is not
factually insubstantial or incredible, the uncorroborated testimony of a
co-conspirator, even one who has chosen to cooperate with the government in
exchange for non-prosecution of leniency, may be constitutionally sufficient
evidence to convict.” Id. (internal quotation marks omitted).
      Riggins asserts his relationship with Houston falls under the buyer-seller
exception. We disagree. Here, a rational jury could find the Government met
its burden with the Houston testimony. Houston testified that he and Riggins
sold large quantities of drugs together, “cooked” drugs together, and counted
drug proceeds together. The jury was entitled to credit this testimony, which is


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clearly not “factually insubstantial or incredible.” Turner, 319 F.3d at 721.
Indeed, Riggins admits in his briefing that the Houston testimony was
“devastating.” Therefore, we hold there was sufficient evidence to support the
verdict’s conspiracy finding.
                                        C
      Riggins challenges the sufficiency of the evidence supporting conviction on
Counts 3 and 5. Count 3 alleges Riggins possessed a firearm in furtherance of
a drug trafficking crime, and Count 5 alleges Riggins possessed a short-barreled
shotgun in furtherance of a drug trafficking crime; both are in violation of 18
U.S.C. 924(c). Riggins asserts the presence of the firearms, including the short-
barreled shotgun, in the house from which he dealt the drugs is not sufficient to
support a finding that the firearms were possessed in furtherance of a drug
trafficking crime. As stated above, we review Riggins’s sufficiency challenge de
novo, asking “whether, viewing all the evidence in the light most favorable to the
verdict, a rational jury could have found that the evidence established the
elements of the offense beyond a reasonable doubt.” Ollison, 555 F.3d at 158
(internal quotation marks omitted).
      In United States v. Ceballos-Torres, we explained our evaluation of gun
possession in this type of situation as follows:
             Some factors that would help determine whether a particular
      defendant’s possession furthers, advances, or helps forward a drug
      trafficking offense might include: the type of drug activity that is
      being conducted, accessibility of the firearm, the type of the weapon,
      whether the weapon is stolen, the status of the possession
      (legitimate or illegal), whether the gun is loaded, proximity to drugs
      or drug profits, and the time and circumstances under which the
      gun is found.



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             These factors help distinguish different types of firearm
      possession. For example, a drug dealer whose only firearms are
      unloaded antiques mounted on the wall does not possess those
      firearms “in furtherance” of drug trafficking. Nor will a drug
      trafficker who engages in target shooting or in hunting game likely
      violate the law by keeping a pistol for that purpose that is otherwise
      locked and inaccessible.
218 F.3d 409, 414–15 (5th Cir. 2000).
      Here, the evidence is sufficient for a rational jury to find Riggins owned
the firearms in furtherance of a drug trafficking crime. First, the “type of drug
activity” at issue is significant because it involved a substantial amount of
cocaine at the house. Id. at 414. Second, the “accessibility of the firearm[s]”
weighs against Riggins because none were “locked and inaccessible;” rather,
most were within reaching distance of Riggins’s bed. Id. at 414–15. Third, the
“type of weapon[s]” weighs against Riggins; none are “antiques mounted on the
wall” or similarly benign, and the short-barreled shotgun is particularly
dangerous. Id. Fourth, “whether the weapon[s are] stolen” does not weigh in
favor of either side because the record does not resolve the issue. Id. at 415.
Fifth, “the status of the possession (legitimate or illegal)” weighs against Riggins
because Riggins was convicted for being a felon-in-possession in Count 4 (a
conviction he does not challenge on appeal). Id. Sixth, the two handguns were
loaded. Id. Seventh, the guns were found in the bedroom, in close “proximity to
. . . drug profits.” Id. Eighth and last, nothing in the “time and circumstances
under which the gun[s are] found” indicate Riggins may have had a legitimate
purpose for possession; rather, they were found as a result of a search warrant
based on illegal drug activity. Id. These factors together constitute more than




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                                  No. 12-30515

sufficient evidence for a rational jury to find Riggins owned the firearms in
furtherance of a drug trafficking crime.
                                        D
      Riggins challenges the consecutive sentences for Counts 3 and 5. Riggins
relies on two grounds: 1) two convictions for firearm possession based on the
same underlying drug trafficking offense violates double jeopardy principles; and
2) the conviction for Count 5 was not “second or subsequent” to the conviction for
Count 3 because the two stem from the same underlying event, so the sentencing
enhancement in § 924(c)(1)(C), which resulted in the 300-month sentence for
Count 5, should not apply.
      The Government concedes Riggins’s first point and we agree. In United
States v. Privette, we held “that to avoid violating double jeopardy principles
each firearms offense must be sufficiently linked to a separate drug trafficking
offense to prevent two convictions under § 924(c) on the same drug offense.” 947
F.2d 1259, 1262–63 (5th Cir. 1991). Here, both firearms offenses were linked to
the same drug trafficking offense charged in Count 2, so multiple punishment
is improper. Id. at 1263. Even though Count 5 is linked to the conspiracy
charged in Count 1 in addition to the substantive offense in Count 2, “we cannot
determine whether the jury based both convictions on the [same count]. If the
jury convicted [Riggins] twice for using firearms [based on Count 2, Riggins]
would be doubly punished for the same crime.” Id.
      Because the same underlying drug trafficking offense can support only one
conviction for possession of firearms under § 924(c)—either Count 3 or Count
5—we need not address whether Count 5 was “second or subsequent” to Count
3. The sentencing enhancement is applicable only to multiple convictions in any


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event. “The proper remedy for multiplication of punishment is to vacate the
sentences on all the counts and remand with instructions that the count elected
by the government be dismissed.” Id. Here, the proper remedy is to vacate the
sentences for Counts 3 and 5 and remand with instructions for the district court
to vacate the conviction for and dismiss the count elected by the Government and
resentence Riggins on the remaining count.
                                            E
       Lastly, Riggins asserts his life sentences for Counts 1 and 2 are in
violation of due process principles. Specifically, Riggins challenges the district
court’s finding at sentencing that he had committed two prior drug felonies, as
well as the district court’s description of the two prior convictions as “serious
drug offenses.” On these bases, Riggins asserts the district court should not
have given him the statutorily-mandated life sentences for offenders with two
prior felony drug offenses under 21 U.S.C. § 841(b)(1)(A). Additionally, Riggins
asserts he is not a career offender under the Sentencing Guidelines.1
       We review sentencing for significant procedural errors first, including
whether the district court “select[ed] a sentence based on clearly erroneous
facts.” Gall v. United States, 552 U.S. 38, 51 (2007). “When there are no
procedural errors, this court will then ‘consider the substantive reasonableness
of the sentence imposed under an abuse-of-discretion standard’ and will ‘take
into account the totality of the circumstances.’” United States v. Rodriguez, 660
F.3d 231, 233 (5th Cir. 2011) (quoting Gall, 552 U.S. at 51).



       1
       Riggins includes a general assertion that his life sentences violate the Eighth
Amendment, but he concedes this issue is foreclosed by precedent. See Harmelin v. Michigan,
501 U.S. 957, 995–96 (1991) (holding life sentences do not violate the Eighth Amendment).

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      First, Riggins challenges the district court’s finding that he was the same
“Brian Riggins” who had committed the prior two felonies produced by the
Government. Under 21 U.S.C. § 851, the Government must prove beyond a
reasonable doubt that Riggins committed the prior felonies.          At first, the
Government and the district court mistakenly thought the Government’s burden
was to show clear and convincing evidence. The district court later stated,
however, “Even if it wasn’t by clear and convincing, and if the burden was
beyond a reasonable doubt, the Court also finds that the burden has also been
established with beyond a reasonable doubt, in my opinion.” Therefore, the
district court did not commit procedural error because it made the same finding
in the alternative using the correct standard.
      Riggins asserts the Government did not, in fact, show that he committed
the prior felonies beyond a reasonable doubt because the parole officer testifying
to his identity needed his memory refreshed by a photograph and the prior
convict used different aliases than the ones Riggins used in this case. The
district court based its finding on the testimony of the probation officer assigned
to supervise the prior convict. After his memory was refreshed by a photograph
in the case file of “Brian Riggins,” the parole officer testified that he had no
doubt Riggins was the person who committed the two prior felonies. The district
court credited this testimony and found the different aliases were ultimately
immaterial to the identity issue.      This finding was not based on “clearly
erroneous facts,” but rather on the testimony of the supervising probation officer,
so the district court did not procedurally err.
      Second, Riggins asserts the district court erred in mischaracterizing his
prior convictions as “serious drug offenses.” Riggins asserts his prior convictions


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                                   No. 12-30515

were not “serious” under the definition in 18 U.S.C. § 3559(c)(2)(H)(ii). For
purposes of the mandatory minimum under 21 U.S.C. § 841(b)(1)(A), however,
prior convictions need only be “felony drug offense[s];” seriousness is not a factor.
Therefore, Riggins’s assertion lacks merit.
      As for substantive reasonableness, Riggins has not provided any support
for his assertion that the district court abused its discretion when it imposed the
mandatory minimums. Additionally, we do not address Riggins’s contention that
he is not a career offender for purposes of Counts 1 and 2 because the life
sentences are statutorily mandated independent of the Sentencing Guidelines.
21 U.S.C. § 841(b)(1)(A). Therefore, the district court did not reversibly err in
imposing life sentences for Counts 1 and 2.
                                        III
      For these reasons, we AFFIRM the convictions, VACATE the sentences for
Counts 3 and 5, and REMAND for resentencing. On remand, the district court
will VACATE the conviction for and DISMISS the count elected by the
Government and resentence Riggins on the remaining count.




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