                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 18-2854
                                      ____________


                            UNITED STATES OF AMERICA

                                             v.

                                 LANCE YARBOUGH,
                                        Appellant
                                    ____________

       On Appeal from the District Court for the Western District of Pennsylvania
                              (D.C. No. 14-cr-00270-012)
                     District Judge: Honorable Reggie B. Walton
                                    ____________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    March 8, 2019
                                    ____________


           Before: AMBRO, RESTREPO, and GREENBERG, Circuit Judges.

                                 (Filed: August 23, 2019)

                                      ____________

                                        OPINION *
                                      ____________




       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
RESTREPO, Circuit Judge.

       Following a bench trial, Lance Yarbough was convicted of conspiracy to

distribute and possession with intent to distribute heroin. Yarbough was sentenced to the

statutory minimum of ten years’ imprisonment, followed by five years of supervised

release. He appeals the judgment of conviction and sentence. We will affirm.

                                             I.

       Because we write primarily for the parties, we set forth only the facts and history

relevant to this decision. On December 9, 2014, Yarbough and eleven others were

indicted for conspiracy to distribute heroin. Yarbough waived his right to a jury trial, and

was tried and convicted by the District Court. His conviction in this case arose from his

association with Hardcore Entertainment (“Hardcore”), a heroin distribution ring located

in the Pittsburgh area.

                          A.     Yarbough’s Role in Hardcore

       Yarbough held a significant role in Hardcore. He stored and sold heroin for the

organization, facilitated drug transactions between upper and lower-level members, and

he participated in meetings establishing Hardcore’s hierarchy. He and other core

members of Hardcore pooled funds to buy large quantities of heroin, which they then

divvied up pro rata.

       Some of this heroin was delivered by Ashley Auston, who was stopped by police

with more than 600 grams of heroin during one of approximately one dozen trips she

made between 2007 and 2008. Auston testified that two other individuals couriered

similarly sized heroin deliveries on a weekly basis, and that she had witnessed Yarbough


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and other Hardcore members divvying up the heroin based on the amount of money each

put in.

                              B.     Yarbough’s Prior Arrests

          In October 2008, Yarbough was incarcerated for illegal firearm possession arising

from a traffic stop involving him and three other Hardcore members. Hardcore continued

its heroin trafficking operation while Yarbough was incarcerated. He returned to his role

in Hardcore after his release in August 2011.

          Then, in October 2012, police searched Yarbough’s apartment and found 133

grams of heroin. Yarbough later pled guilty to possession with intent to distribute 100

grams or more of heroin. He was sentenced to 60 months in prison.

                C.     Yarbough and Hardcore Indictment and Conviction

          In December 2014, Yarbough and other Hardcore members were indicted and

charged with conspiracy to distribute and possession with intent to distribute heroin

between 2008 and 2012. He was charged with liability for one kilogram or more of

heroin, exposing him to a statutory minimum of ten years’ imprisonment. See 21 U.S.C.

§§ 841(a)(1), 841(b)(1)(A)(i), 846.

          Yarbough was convicted after a bench trial at the District Court in January 2017.

Based on the evidence summarized above, inter alia, the Court found that “there is no

reasonable doubt that [] Yarbough was a member of the charged conspiracy and had the

specific intent to achieve the objectives of the conspiracy.” J.A. 1783. The Court also

found that Yarbough was responsible for one or more kilograms of heroin because the

authorities seized heroin in excess of one kilogram from members of the conspiracy, and


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because Yarbough had knowledge and reasonable foreseeability that Hardcore trafficked

in this amount of heroine.

                             D.     Yarbough’s Sentencing

       Following Yarbough’s conviction, the United States Probation Office provided a

Presentence Investigation Report (“PSR”), finding applicable a ten-year statutory

minimum for distributing a kilogram or more of heroin under 21 U.S.C. §

841(b)(1)(A)(i). The PSR determined Yarbough’s advisory Guidelines range to be 292-

365 months, based on Yarbough’s criminal history category of III and a total offense

level of 38.

       Yarbough argued at sentencing that the Fifth Amendment’s Double Jeopardy

Clause necessitates that his previous convictions of drug and firearm possession should

be credited towards his sentence for conspiracy. The Court rejected this argument,

finding that a conviction for conspiracy and separate convictions for substantive offenses

related to that conspiracy are not the “same offense” for purposes of the Double Jeopardy

Clause.

       The Court also found that Yarbough was responsible for the amount of heroin

attributable to him while he was not incarcerated during the length of the conspiracy.

Based on the evidence at trial, Yarbough was found liable for 58.8 kilograms of heroin

and a two-point offense level enhancement for gun possession for a total offense level of

38.

       The advisory guidelines recommended over 24 years’ incarceration, but the Court

sentenced Yarbough to ten years’ imprisonment—the statutory minimum—because his


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role in the conspiracy was not as substantial as his co-conspirators, and because he had

already served time in prison for the underlying substantive offenses connected to the

conspiracy.

                                            II.

        Yarbough appeals his judgement of conviction and sentence. The District Court

had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. §

1291.

                                           III.

                                            A.

        We first address Yarbough’s double jeopardy challenge. The standard of review is

de novo. United States v. Price, 13 F.3d 711, 717 (3d Cir. 1994).

        Yarbough argues that the Double Jeopardy Clause limits the imposition of a

punishment for conspiracy when he has already been punished for underlying crimes that

contributed to the conspiracy—namely, his imprisonment for illegal firearm possession

and then for heroin possession—both of which were found to contribute to the

conspiracy. Thus, Yarbough argues that the District Court erred by not granting a term of

imprisonment that credits the prior sentences against the statutory minimum term.

        We disagree. The Double Jeopardy Clause acts to prevent more than one

prosecution or punishment for the “same offense.” U.S. Const. amend. V. Offenses are

the “same” if they share the same elements of required proof. See United States v. Dixon,

509 U.S. 688, 696, 704 (1993); United States v. Miller, 527 F.3d 54, 71 (3d Cir. 2008).

“To prove a conspiracy, the government must establish a unity of purpose between the


                                            5
alleged conspirators, an intent to achieve a common goal, and an agreement to work

together toward that goal.” United States v. Gibbs, 190 F.3d 188, 197 (3d Cir. 1999).

The elements of unity of purpose, intent towards a common goal, and an agreement to

work together are unique to Yarbough’s conspiracy charge—the “same” elements are not

found in his prior convictions for illegal firearm possession or possession with intent to

distribute heroin.

       Indeed, it has been a longstanding rule of this Court, and of the Supreme Court,

that a charge of conspiracy and the underlying crimes effectuating it are not the same

offense under the Double Jeopardy Clause. See United States v. Watkins, 339 F.3d 167,

177 (3d Cir. 2003) (quoting United States v. Felix, 503 U.S. 378, 389 (1992) (“A

substantive crime and a conspiracy to commit that crime are not the ‘same offencs’ for

double jeopardy purposes.”)). Thus, the District Court did not err in finding the Double

Jeopardy Clause is not implicated in this case.

                                             B.

       We next address Yarbough’s argument that the District Court erred in its

calculation of the amount of heroin attributable to him for sentencing purposes. The

standard of review for the District Court’s factual determination is clear error. See Gibbs,

190 F.3d at 197. Yarbough argues that the District Court committed clear error in its

calculation of the heroin amount by placing too much weight on the testimony of several

individuals with knowledge of the amount and frequency of the heroin shipments, and too

little weight on an FBI-302 report referencing the same.




                                             6
       We have recognized that when “calculating the amount of drugs involved in a

particular operation, a degree of estimation is sometimes necessary[,]” and a sentencing

court may use testimony regarding average amounts sold in a period of time multiplied

by the length of time sold. Id. at 203-204. In this case, the District Court considered

testimony from a former courier, Ashley Austin, as well as former Hardcore conspirators

Corey Thompson and Rodney Brown, in estimating the amount of heroin attributable to

Yarbough. Any conflicts presented between these testimonies and the FBI-302 report

raise issues of credibility, and the trial court assessments’ of credibility are given great

deference on appeal. United States v. Givan, 320 F.3d 452, 464 (3d Cir. 2003). This

standard aside, we see no reason why the District Court could have committed clear error

by relying on testimonial evidence to estimate the quantity of drugs attributable to

Yarbough. See United States v. Douglas, 885 F.3d 145, 150-51 (3d Cir. 2018) (finding

circumstantial and testimonial evidence sufficient for determining drug quantity). Thus,

the District Court did not commit clear error in calculating the amount of heroin

attributable to Yarbough.

                                              C.

       Lastly, we address Yarbough’s argument that the District Court erred in admitting

evidence of his previous firearm conviction, and further erred by applying that evidence

to find a two-point enhancement to his offense level. The standard of review for a trial

court’s decision to admit evidence is abuse of discretion. United States v. Starnes, 583

F.3d 196, 213-14 (3d Cir. 2009). And, because “the District Court’s decision to apply the




                                               7
enhancement was essentially factual, we review for clear error.” United States v.

Drozdowski, 313 F.3d 819, 822 (3d Cir. 2002).

       Yarbough argues that the firearm evidence was irrelevant at trial, and thus should

not have been admitted pursuant to Federal Rule of Evidence 402 and 403. The

government, however, argues that the firearm evidence was properly admitted, because

Yarbough was with three other co-conspirators during the arrest, and because firearms

may be considered circumstantial evidence of drug trafficking, similar to a digital scale or

large sums of money. We have previously noted that firearms possession is highly

probative of drug distribution conspiracies because conspirators will use firearms to

protect their operation. Price, 13 F.3d at 719 (citing United States v. Pungitore, 910 F.2d

1084, 1152 (3d Cir. 1990)). Thus, given this precedent regarding the firearm

possession’s relevance in proving a drug distribution conspiracy, and because the firearm

evidence furthered evidence of Yarbough’s affiliation with other Hardcore members, the

District Court did not abuse its discretion in admitting the firearm evidence.

       Finally, turning to the two-point offense level enhancement, the District Court did

not commit clear error. This enhancement applies to a drug trafficking operation “if a

dangerous weapon (including a firearm) was possessed” during the commission of the

crime—here, the drug trafficking conspiracy. U.S.S.G. § 2D1.1(b)(1). Yarbough argues

that because there was no heroin in the car when he was arrested for illegal firearms

possession, this enhancement should not apply.

       If the government shows possession of the firearm, as it has here, the defendant

bears the burden of showing that the “drug-weapon connection was clearly improbable.”


                                             8
United States v. Napolitan, 762 F.3d 297, 309 (3d Cir. 2014). To that end, we consider

four factors: “(1) the type of gun involved, with clear improbability less likely with

handguns than with hunting rifles, (2) whether the gun was loaded, (3) whether the gun

was stored near the drugs or drug paraphernalia, and (4) . . . whether the gun was

accessible.” Drozdowski, 313 F.3d at 822-23. Applying these factors, Yarbough is

unable to meet his burden: he possessed a loaded handgun accessible in the car he was in.

Thus, the absence of heroin at that arrest is not enough to invalidate the District Court’s

two-point sentencing enhancement. Therefore, the District Court did not commit clear

error.

                                      *      *       *

         For the reasons stated, we will affirm Yarbough’s judgment of conviction and

sentence.




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