     Case: 14-60052      Document: 00512740451         Page: 1    Date Filed: 08/20/2014




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

                                    No. 14-60052                                FILED
                                  Summary Calendar                        August 20, 2014
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff – Appellee,
v.

CHARLIE HARRIS,

                                                 Defendant – Appellant.




                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                              USDC No. 2:12-CR-77


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM:*
       Charlie Harris contends that the district court erred by applying a two-
level Sentencing Guidelines enhancement for making a credible threat of
violence in connection with his drug conspiracy offense. For the following
reasons, we AFFIRM.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-60052
                                      I.
      In March 2012, the Bureau of Alcohol, Tobacco, Firearms and
Explosives initiated an investigation upon learning through a confidential
informant that an individual—later identified as Harris—was attempting to
establish a firearms pipeline from Mississippi to California. On May 9, 2012,
an undercover ATF agent accompanied the informant to a meeting with
Harris and Otis Powell to buy firearms. The agent introduced himself to
Harris as a “disgruntled drug courier, who was owed money by the drug
organization for whom he delivered cocaine.” The agent regaled Harris with
a tale of his duties as a drug courier—regularly picking up kilograms of
cocaine from stash houses protected by armed guards—and complained that
the cartel was not paying him as much money as he deserved. Because of
this, the agent said, he was thinking about robbing the cartel of its cocaine
the next time that he went to the stash house for a pickup, and was looking
for help. Harris responded that he and his associates “hit licks,” had the
“tools,” and would help the agent rob the stash house.
      The next day, Harris and Powell met with the agent and the informant
to discuss plans for the robbery. The agent said there would be roughly ten
kilos of cocaine in the stash house, which would be guarded by armed men.
Harris and Powell assured the agent they were ready and willing to rob the
stash house and explained their plan for the robbery. First, the agent would
go into the stash house. Next, Harris, Powell, and another accomplice would
rush in with guns drawn, take control of the room, and make the guards lay
down on the floor.    Harris then commented that once the guards were
subdued, they would “just go and do them.”
      Harris and Powell met with the agent again on June 5, 2012 to finalize
plans for the robbery. The agent explained that they would be ready to do
the robbery on June 7, and asked if anyone else would be joining them.
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                                No. 14-60052
Harris said they would be joined by “Cat,” later identified as Rallen Ryan
Marshall.   Powell assured the agent that “Cat” was both reliable and in
agreement with the plan to “kill everyone in there.”
      On June 7, Harris, Powell, and Marshall met the agent at a
prearranged meeting place in Tunica, Mississippi so they could travel to the
stash house together. Harris, Powell, and Marshall arrived at the meeting
place in a car together, bringing three guns with them: a Smith & Wesson .40
caliber pistol loaded with nine rounds of ammunition, a Smith & Wesson
9mm pistol loaded with nine rounds of ammunition, and a Chinese Model
SKS 7.62 x 39mm rifle with a bayonet attached to the end and loaded with
ten rounds of ammunition. When they arrived, Harris and Powell introduced
the agent to Marshall (aka “Cat”). The agent again explained that the stash
house would have at least ten kilos of cocaine inside along with three armed
guards. Marshall asked tactical questions about how the robbery would be
conducted and suggested some best practices, including code words for the
agent to describe where the guards were located in the house, leaving the
door unlocked, and repeatedly stressing to the agent that he needed to be on
the floor when he, Powell, and Harris entered the house. Marshall assured
the agent that once he advised that everything was “all good,” they would be
“coming off in that bitch.”
      Having gone over the entire plan, the four men moved from the
meeting location to a storage locker facility where the agent said he parked a
rental vehicle for the group to drive to the robbery. Upon arriving at the
storage shed, Harris moved the guns from Marshall’s car into the rental
vehicle in preparation for the drive to Southaven, Mississippi to rob the stash
house.   Once Harris transferred the guns to the rental vehicle and they
opened the storage shed, the three men were arrested by an ATF special
operations team.
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                                    No. 14-60052
          After an indictment charged Harris with drug and firearms offenses, he
pleaded guilty to a single count of conspiracy to possess with intent to
distribute more than five kilograms of cocaine.          The Presentence Report
(PSR) assigned Harris a total offense level of 33. In combination with his
criminal history category of I, that offense level produced a guidelines range
of imprisonment from 135 to 168 months. Harris’s offense level included a
two-level enhancement under U.S.S.G. § 2D1.1(b)(2) for making a credible
threat to use violence in connection with the offense. Harris objected to that
enhancement’s inclusion in the presentence report (PSR) and renewed his
objection at sentencing.        The district court overruled the objection and
sentenced Harris to a prison term of 135 months.
                                          II.
          Harris contends that the district court incorrectly applied the two-level
enhancement for “a credible threat to use violence.” U.S.S.G. § 2D1.1(b)(2).
Section 2D1.1(b)(2) provides that a defendant’s offense level is increased by
two levels if he “used violence, made a credible threat to use violence, or
directed the use of violence.”      U.S.S.G. § 2D1.1(b)(2). Harris argues that
because there was no actual drug stash with armed guards, the threat of
violence was not credible.
          Of course, factual impossibility is not a defense to the conspiracy crime
itself.     See United States v. Burke, 431 F.3d 883, 886 (5th Cir. 2005)
(“[F]actual impossibility does not preclude a conviction for conspiracy or
attempt.” (citing United States v. Pietri, 683 F.2d 877, 879 (5th Cir. 1982)). It
would be odd if the plan to rob cocaine from a nonexistent stash house could
give rise to a criminal conviction carrying punishment up to life in prison, see
21 U.S.C. §§ 841(b)(1)(A), 846, but could not be considered in sentencing
enhancements for that offense.


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                                 No. 14-60052
      Nor does Harris’s argument find any support in the language of
§ 2D1.1(b)(2) or its purpose. The enhancement focuses on the threat being
“credible.”   That is naturally read to mean “believable.”        Black’s Law
Dictionary 448 (10th Ed. 2014) (defining “credibility” as “[t]he quality that
makes something (as a witness or some evidence) worthy of belief”). The
extensive discussion, planning, and partial carrying out of the plan in a
vehicle loaded with guns and ammunition demonstrate that the threat was
seriously intended, rather than offhand or in jest.             Moreover, the
enhancement’s view that higher sentences are warranted for those with a
propensity for violence—even if just reflected in a threat and not an actual
act of violence—is implicated even when the threat occurs in connection with
a sting.
      Because of the extensive evidence demonstrating that the conspiracy
offense involved a “credible threat to use violence,” the district court did not
clearly err in applying the enhancement.
                                      III.
      The district court’s judgment is AFFIRMED.




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