Filed: Jun. 08, 2005
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 8, 2005 Charles R. Fulbruge III Clerk No. 04-40744 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JAMES WILLIE EDWARDS, Defendant-Appellant. - Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:03-CR-36-TH-ALL - Before DAVIS, SMITH and DENNIS, Circuit Judges PER CURIAM:* James Willie Edwards (Edwards) appeals his gui
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 8, 2005 Charles R. Fulbruge III Clerk No. 04-40744 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JAMES WILLIE EDWARDS, Defendant-Appellant. - Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:03-CR-36-TH-ALL - Before DAVIS, SMITH and DENNIS, Circuit Judges PER CURIAM:* James Willie Edwards (Edwards) appeals his guil..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 8, 2005
Charles R. Fulbruge III
Clerk
No. 04-40744
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES WILLIE EDWARDS,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:03-CR-36-TH-ALL
--------------------
Before DAVIS, SMITH and DENNIS, Circuit Judges
PER CURIAM:*
James Willie Edwards (Edwards) appeals his guilty plea
conviction and sentence for possession with intent to distribute
five grams or more but less than 50 grams of crack cocaine in
violation of 21 U.S.C. § 841(a)(1).
Edwards contends that his rights under the Confrontation
Clause were violated at the suppression hearing when Detective
Harry Kelley (Detective Kelley) was allowed to proffer ex-parte
testimony on behalf of the confidential informant (CI). Although
*
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this opinion should not be published and is not precedent except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.
No. 04-40744
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the CI’s testimony was the sole basis for obtaining the search
warrant for Edwards’s residence, Edwards was unable to cross-
examine the CI because the Government failed to produce the CI at
the suppression hearing or otherwise disclose his or her identity.
The government is not required to disclose the identity of an
informant unless the informant’s identity is relevant and helpful
to the defense of the accused or is essential to a fair
determination of a cause. Roviaro v. United States, 353 U.S. 53,
59-63 (1957). “[T]he government’s privilege of nondisclosure
overrides any [S]ixth [A]mendment right to the identity of an
informant for purposes of confrontation.” United States v. De Los
Santos,
810 F.2d 1326, 1334 (5th Cir. 1987). Although Edwards does
not directly challenge the district court’s denial of his motion to
disclose the CI’s identity, his Confrontation Clause claim
necessarily implicates the issue of whether the CI’s identity
should have been disclosed. See
id. at 1332 n.5.
The district court did not abuse its discretion when it denied
Edwards’s motion to disclose the CI’s identity. See United States
v. Orozco, 982 F.2d 152, 154-155 (5th Cir. 1993). Edwards was not
charged with the sale of crack cocaine to the CI. Although this
information was used to obtain the search warrant, the CI did not
actively participate in the search and, thus, was not a witness to
charged offense. Further, Edwards has failed to establish that the
CI’s testimony would significantly aid in his defense. Although he
argues that cross-examination was necessary to test the validity
No. 04-40744
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and veracity of the CI’s testimony and thereby challenge the
probable cause determination, Edwards was able to question
Detective Kelley regarding the CI’s reliability and present three
witnesses directly contradicting the CI’s testimony. Finally, the
CI was still being utilized and the disclosure of his or her
identity would have jeopardized the CI’s safety and usefulness.
Therefore, the Government’s privilege of nondiclosure overrides
Edwards’s rights under the Confrontation Clause. See De Los
Santos, 810 F.2d at 1331, 1334-35.
Edwards also contends that the district court erred when it
denied his motion to suppress the evidence seized during the search
of his residence because the search warrant and supporting
affidavits were based on uncorroborated and unsubstantiated
statements and lacked in indicia of probable cause to render belief
in its existence entirely unreasonable.
Edwards has failed to present any evidence that the
detectives’ statements, if false, were made intentionally or with
a reckless disregard for the truth. See United States v. Alvarez,
127 F.3d 372, 373 (5th Cir. 1997). Further, the affidavits were
not so lacking in indicia of probable cause that they rendered the
detectives’ belief in its existence entirely unreasonable. The CI
had been used at least six times in the past and had proved to be
reliable. Further, the information provided by the CI was
corroborated by the detectives’ observations and the audiotape from
the controlled buy. Therefore, the good-faith exception to the
No. 04-40744
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exclusionary rule was applicable, and the district court did not
err when it denied Edwards’s motion to suppress. See United States
v. Satterwhite, 980 F.2d 317, 320-22 (5th Cir. 1992).
Edwards also contends that the district court clearly erred in
determining the quantity of drugs attributable to him as relevant
conduct. Specifically, he argues that the offenses included as
relevant conduct were unrelated, too remote in time, based on
different fact patterns, unfounded, unadjudicated, and based on
hearsay evidence.
“Post-[United States v. Booker, 125 S. Ct. 738 (2005)], we
continue to apply the same standard of review to claims of
erroneous fact-finding with respect to the application of
adjustments, i.e., we review for clear error.” United States v.
Villanueva, ___ F.3d ___, No. 03-20812,
2005 WL 958221, *8 n.9 (5th
Cir. Apr. 27, 2005). Edwards has not demonstrated that the
district court clearly erred in determining the quantity of drugs
attributable to him as relevant conduct. See United States v.
Ocana,
204 F.3d 585, 589-91 (5th Cir. 2000). Although most of the
offenses included as relevant conduct took place nearly two years
prior to the offense of conviction, this alone does not make them
irrelevant. See United States v. Miller,
179 F.3d 961, 967 n.10
(5th Cir. 1999) (noting that a 21-month gap is not automatically
too remote and that if other factors are “authoritatively present”
the temporal factor may be overcome). Further, all of the offenses
involved Edwards’s sale of crack cocaine to undercover officers or
No. 04-40744
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informants and the seizure of controlled substances pursuant to
warrants obtained as a result of those transactions. Finally,
although Edwards argues that the relevant conduct offenses were
unfounded, unadjudicated, and based on hearsay evidence, he did not
submit any rebuttal evidence to refute the information in the
presentence report (PSR). See United States v. Vital, 68 F.3d 114,
120 (5th Cir. 1995).
Edwards also contends that the district court clearly erred
when it increased his base offense level for possession of a
dangerous weapon under U.S.S.G. § 2D1.1(b)(1). Specifically, he
argues that the enhancement was based on the execution of an arrest
warrant nearly one year prior to the offense of conviction; that
the incident was uncorroborated, unadjudicated, based on hearsay
evidence, and lacking in indicia of reliability; and that the
Government failed to establish a sufficient nexus between his
actions and the weapon.
Edwards has not demonstrated that the district court clearly
erred when it increased his base offense level for possession of a
dangerous weapon under U.S.S.G. § 2D1.1(b)(1). The incident was
properly included as relevant conduct. See U.S.S.G. § 1B1.3.
Further, the weapons were found in Edwards’s residence and in close
proximity to the drugs and money. See United States v. Eastland,
989 F.2d 760, 770 (5th Cir. 1993). Finally, Edwards did not submit
any rebuttal evidence to refute the information in the PSR. See
Vital, 68 F.3d at 120.
No. 04-40744
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Edwards also contends that the district court’s reliance on
testimonial statements to determine the quantity of drugs
attributable to him as relevant conduct and to increase his base
offense level for possession of a dangerous weapon violated his
rights under the Confrontation Clause. He relies on Crawford v.
Washington, 124 S. Ct. 1354 (2004).
Crawford involved a defendant’s right under the Confrontation
Clause during his criminal trial. 124 S. Ct. at 1356-58. Prior to
Crawford, this court had not recognized such a right at sentencing.
See United States v. Navarro,
169 F.3d 228, 236 (5th Cir. 1999).
Nothing in Crawford indicates that its holding is applicable to
sentencing proceedings. Therefore, Edwards’s contention is
foreclosed by Navarro.
Finally, Edwards contends that the relevant conduct
determination and possession of a dangerous weapon enhancement were
improper in light of Blakely v. Washington, 124 S. Ct. 2531 (2004).
Because Edwards did not object on this basis in the district court,
this court’s review is for plain error. See United States v.
Mares,
402 F.3d 511, 520 (5th Cir. 2005), petition for cert. filed,
No. 04-9517 (U.S. Mar. 31, 2005).
Although Edwards’s sentence was enhanced based on facts that
were neither admitted by him nor found by a jury beyond a
reasonable doubt, he has not demonstrated that this plain error
affected his substantial rights. Edwards has failed to point to
any evidence in the record indicating that the same sentence would
No. 04-40744
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not have been imposed had the district court known that the
Sentencing Guidelines were advisory. The record itself gives no
indication that the district court would have reached a different
result under an advisory guidelines scheme. The district court
found that although a sentence at the lowest end of the guideline
range was still a high sentence, it was warranted because other
periods of supervision and incarceration had not deterred Edwards’s
criminal behavior, he had prior convictions for delivery of
controlled substances, he had several pending charges, and he
continued to engage in drug-trafficking. Given the lack of
evidence indicating that the district court would have reached a
different conclusion, Edwards has not demonstrated that his
substantial rights were affected, and, thus, he has failed to
establish plain error. See Mares, 402 F.3d at 520-22.
Accordingly, the district court’s judgment is AFFIRMED.
