[DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                            No. 08-16250                 ELEVENTH CIRCUIT
                                                             JULY 29, 2010
                        Non-Argument Calendar
                                                              JOHN LEY
                      ________________________
                                                               CLERK

                D. C. Docket No. 08-00242-CR-5-IPJ-HGD

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus


YOLANDA GOODLOW,
ROBERT MICHAEL EVANS,
a.k.a. Hot Dog,
a.k.a. Hot Boy,


                                                       Defendants-Appellants.


                      ________________________

               Appeals from the United States District Court
                  for the Northern District of Alabama
                     _________________________
                             (July 29, 2010)

Before BARKETT, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:

      Robert Michael Evans and Yolanda Goodlow appeal their convictions

stemming from a multi-count indictment in which they were co-defendants. Evans

appeals his convictions and sentence of life imprisonment for (1) conspiracy to

distribute and possession with intent to distribute 100 kilograms or less of

marijuana, and between 500 grams and 5 kilograms of cocaine, in violation of 21

U.S.C. §§ 841 and 846; (2) distribution of a quantity of marijuana, in violation of

21 U.S.C. § 841; (3) use of a communication facility to facilitate the commission

of a felony drug-trafficking crime, in violation of 21 U.S.C. § 843; and (4) being a

felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Goodlow

appeals following her convictions for conspiracy to distribute and possess with

intent to distribute 100 kilograms or less of marijuana, in violation of 21 U.S.C. §§

841(a)(1), (b)(1), and 846, and use of a communication facility to facilitate the

commission of a felony drug-trafficking crime, in violation of 21 U.S.C. § 843(b).

      On appeal, Evans argues that the district court: (1) plainly erred by trying

him and Yolanda Goodlow together; (2) plainly erred by admitting a drug lab

report into evidence without requiring the direct testimony of the lab technician, in

violation of Evans’s constitutional rights under the Confrontation Clause; (3) erred

in finding there was sufficient evidence to support his conviction for conspiracy;



                                          2
(4) plainly erred by finding that Evans was a career offender; (5) clearly erred by

enhancing Evans’s offense level under U.S.S.G. § 2D1.1(b)(1) for possession of a

firearm; and (6) imposed an unreasonable sentence of life imprisonment. Goodlow

claims that the district court erred by denying her motion to suppress evidence

seized from her mobile home because the search warrant lacked probable cause

and did not identify her mobile home with specificity.

                                I. BACKGROUND

      The indictments against Evans and Goodlow arose from the investigation of

a large-scale drug distribution enterprise involving Reco Willingham. The

government indicted thirty-three individuals, including Evans, Goodlow, and

Willingham, on a plethora of charges relating to a drug conspiracy they entered

into from 2004 to 2008. Willingham pleaded guilty and testified against Evans and

Goodlow.

      Willingham testified that he purchased marijuana and cocaine in bulk from

Galdino Zamora. He then sold 10–15 pounds of marijuana to Evans 2–3 times a

month. Willingham also supplied Evans with cocaine, starting out with one

kilogram and then increasing to multiple kilograms. Evans had other suppliers of

cocaine and marijuana. In fact, Evans often supplied Willingham with high quality

marijuana and offered to supply Willingham with cocaine.



                                          3
      Goodlow is Willingham’s older sister who lived in a trailer home located on

a piece of Willingham’s property. Willingham kept large amounts of money in a

safe in Goodlow’s bedroom closet. Goodlow witnessed Willingham put money in

and take money out of the safe. Willingham also kept several kilograms of cocaine

in Goodlow’s trailer with Goodlow’s full knowledge. Goodlow witnessed

Willingham’s cousin come into her home to pick up a couple kilograms of cocaine

for Willingham. Furthermore, Goodlow arranged a deal for the sale of six pounds

of marijuana from Willingham to one of her coworkers.

      When the government executed search warrants for Evans’s property they

recovered several firearms. At his restaurant, a pistol was found laying on top of a

safe containing $27,000 in cash. At Evans’s home, two rifles, a shotgun, and pistol

were recovered. A search warrant for Willingham’s property recovered 18

kilograms of cocaine in Goodlow’s trailer, $101,300 in cash from the safe in

Goodlow’s bedroom, and two handguns on Goodlow’s dresser. Additionally, 85

pounds of marijuana were recovered from another structure on the same property.

      A jury found Evans guilty of conspiracy, possession with intent to distribute

marijuana, use of a telephone to facilitate a drug trafficking offense, and being a

felon in possession of a firearm. At sentencing Evans received enhancements for

possessing dangerous weapons and being a career offender. Evans did not object



                                           4
to being classified as a career offender. The court then sentenced Evans to life

imprisonment on the basis of his history, characteristics, the need to protect the

public, the desire to provide just punishment and future deterrence of others, and to

avoid unnecessary sentencing disparities among other defendants.

       The same jury found Goodlow guilty of conspiracy involving marijuana less

than 100 kilograms and using a telephone to facilitate a drug trafficking crime.

Goodlow received a sentence of 41 months imprisonment.

                                       II. DISCUSSION

A.     Evans

       1.      Severance

       First, Evans argues that he should have been tried separately from Goodlow

and that his trial counsel was ineffective for failing to move for severance.

Goodlow’s counsel previously represented the individual charged with murdering

Evans’s wife and Evans contends that this representation created a conflict of

interest because counsel “was privy to discovery relating” to Evans’s illegal

activities in the previous murder case.

       Where the defendant has failed to raise an issue below, we review for plain

error. United States v. Rodriguez, 

, 1298 (11th Cir. 2005).1


       1
        Plain error requires the defendant to show: (1) an error; (2) that is plain; (3) that affects
substantial rights; and (4) “seriously affect[s] the fairness, integrity, or public reputation of

                                                   5
        “[T]he general rule is that Defendants indicted together should be tried

together, especially in conspiracy cases.” United States v. Chavez, 

,

1360 (11th Cir. 2009). “To succeed on appeal the Defendant must carry the heavy

burden of demonstrating the lack of a fair trial due to actual, compelling

prejudice.” 

four typical cases where severance may be required: “(1)

[w]here the Defendants rely upon mutually antagonistic defenses; (2) [w]here one

Defendant would exculpate the moving defendant in a separate trial, but will not

testify in a joint setting; (3) [w]here inculpatory evidence will be admitted against

one Defendant that is not admissible against the other; and (4) [w]here a

cumulative and prejudicial “spill over” effect may prevent the jury from sifting

through the evidence to make an individualized determination as to each

Defendant.” 

(citations omitted).

        Evans has not clearly shown that his connection to Goodlow’s attorney

created a situation that deprived him of a fair trial. Evans did not state a clear

reason why Goodlow’s attorney would want to question Evans about his illegal

activities or how such questions would benefit Goodlow. Evans has not met his

burden of showing that being tried with Goodlow was compelling prejudice that


judicial proceedings.” United States v. Cotton, 

, 631–32, 

, 1785
(2002) (alterations in original) (citation omitted). For an error to affect substantial rights, “[i]t
must have affected the outcome of the district court proceedings.” United States v. Olano, 

, 734, 

, 1778 (1993).

                                                   6
seriously affected the fairness, integrity or public reputation of his criminal trial.

As for Evans’s claim of ineffective assistance of counsel, we do not reach that

issue at this time.2

       2.      Confrontation Clause

       Second, Evans argues that admission of the forensic lab reports of the

confiscated drugs violated the Confrontation Clause because the reports were

testimonial evidence and he should have been able to confront the forensic chemist

through cross-examination. Therefore, the drug lab reports should be suppressed

and he should have a new trial. Evans admits that he entered into stipulations that

the reports were admissible and that the chemist, if called to testify, would be

qualified and would testify consistently with the reports, but claims that he entered

the stipulations prior to the decision in Melendez-Diaz v. Massachusetts, __ U.S.

__, 

, 2531–33 (2009) (affidavits of a chemist, stating that the

analyzed substances were cocaine, were testimonial statements subject to the

Confrontation Clause). Thus, he contends that the “agreements were without full


       2
         We will not “consider claims of ineffective assistance of counsel raised on direct appeal
where the district court did not entertain the claim nor develop a factual record.” United States
v. Bender, 

, 1284 (11th Cir. 2002) (citation omitted). The record in regards to the
issue of ineffective assistance of counsel has not been adequately developed. The preferable
means for deciding a claim of ineffective assistance of counsel is through a 28 U.S.C. § 2255
motion “even if the record contains some indication of deficiencies in counsel’s performance.”
Massaro v. United States, 

, 504, 

, 1694 (2003). Further, Evans
merely mentioned this issue cursorily in his brief and therefore, Evans has waived review of this
issue. See Access Now, Inc. v. Southwest Airlines, Co., 

, 1330 (11th Cir. 2004).

                                                 7
and complete knowledge of the rights applicable under the Confrontation Clause of

the United States Constitution.”3

       We find no merit to this argument. This is not a case of Evans merely

failing to object; rather, he actually stipulated to the admissability of the tests

without the presence of the lab technician at trial. Where “[d]efense counsel

effectively caused the injury about which he now complains . . . . [it is] invited

error [and] constitutes neither plain nor reversible error.” United States v. Parikh,

, 695 (11th Cir. 1988) (citation omitted). The result of this

stipulation, that Evans would not be able to cross examine the lab technician, was

clear at the time the stipulation was made. The fact that the Supreme Court

subsequently issued an opinion clarifying the extent of the Confrontation Clause

does not provide a basis for this Court to find plain error in the admittance of

evidence upon stipulation of the defendant. Melendez-Diaz did not overturn any

case law relied upon by the district court, or alter the previous interpretation of the

Confrontation Clause; rather, it merely clarified that the Confrontation Clause

analysis of Crawford v. Washington, 

, 53–54, 

, 1365

(2004), extends to results of lab tests. Evans had every opportunity to object to the

admittance of the lab results and demand that the lab technician testify, just as the


       3
         Once again, Evans did not raise this objection at the trial level and so we review for
plain error. 

.

                                                 8
defendant in Melendez-Diaz did; however, his counsel made a seemingly strategic

decision to stipulate. The district court did not err in admitting the evidence

without the lab technician after Evans’s stipulation.

      3.     Sufficiency of Evidence for Conspiracy Charge

      Third, Evans contends that the government failed to present sufficient

evidence to show a conspiracy between Evans and Willingham, the leader of the

conspiracy. He argues that: (1) his transactions were for personal use quantities

and thus they were not linked to the larger conspiracy; (2) he did not participate in

the conspiracy goal of maximizing profits; (3) there was not a meeting of minds or

shared goals with respect to the ongoing drug-related business; and (4) Willingham

contradicted himself in his testimony and made no statement indicating a

continuous ongoing business arrangement with Evans.

      We review a challenge to the sufficiency of the evidence de novo. United

States v. Suba, 

, 671 (11th Cir. 1998) (citation omitted). “The

relevant question . . . is whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” 

“We resolve all reasonable inferences and credibility evaluations in

favor of the jury’s verdict; we will uphold the jury’s verdict if a reasonable fact



                                           9
finder could conclude that the evidence establishes the defendants’ guilt beyond a

reasonable doubt.” 

The credibility of witnesses is the

exclusive province of the jury. United States v. Chastain, 

, 1351

(11th Cir. 1999).

      “To sustain a conviction for conspiracy to possess cocaine with intent to

distribute, the government must prove beyond a reasonable doubt (1) that a

conspiracy existed; (2) that the defendant knew of it; and (3) that the defendant,

with knowledge, voluntarily joined it.” United States v. Molina, 

, 828

(11th Cir. 2006) (quotation omitted). “[P]articipation in a criminal conspiracy

need not be proved by direct evidence; a common purpose or plan may be inferred

from a development and collocation of circumstances.” 

(quotation omitted). “The Government need only produce sufficient evidence that

the defendants conspired to commit a single object.” 

is an

essential element of conspiracy, such an agreement may be proved by

circumstantial as well as direct evidence.” United States v. Hernandez, 

, 1575 (11th Cir. 1991) (quotation omitted).

      “In the case of a purchaser of narcotics, . . . agreement may be inferred when

the evidence shows a continuing relationship that results in the repeated transfer of

illegal drugs to the purchaser.” United States v. Mercer, 

, 1335



                                          10
(11th Cir. 1999). The evidence showed that Evans regularly purchased large

amounts of cocaine and marijuana from Willingham, amounts too large to be

merely for personal use. See United States v. Dekle, 

, 829–30 (11th

Cir. 1999). Further, Evans sold Willingham high quality marijuana that

Willingham sold to other clients. Moreover, Evans offered to sell Willingham

large amounts of cocaine when Willingham’s supply of cocaine encountered

problems.

         Viewed in the light most favorable to the verdict, there was sufficient

evidence for a jury to find that Evans conspired with Willingham to distribute

drugs.

         4.    Career Offender Enhancement

         Fourth, Evans argues that the district court committed clear error by

applying the career-offender enhancement.4 Evans concedes that he had one

predicate conviction for distribution of a controlled substance offense. He claims,

however, that the second predicate offense, an Alabama state conviction for

possession of marijuana in the first degree, did not qualify as a “controlled

substance” offense under U.S.S.G. § 4B1.2(b).


         4
         A defendant is a career offender if: (1) he is at least 18 years old at the time of the
commission of the offense of conviction; (2) the offense of conviction is a felony crime of
violence or controlled substance offense; and (3) there are at least two prior felony convictions
for a crime of violence or controlled substance offense. U.S.S.G. § 4B1.1(a).

                                                11
      Evans failed to object at sentencing to the career offender status; thus, we

review for plain error. 

. Failure to object to the facts

in the PSI is deemed an admission to those facts. United States v. Bennett, 

, 833–34 (11th Cir. 2006).

       A “controlled substance offense” is defined as an offense punishable by a

year or more of imprisonment, “that prohibits the manufacture, import, export,

distribution, or dispensing of a controlled substance (or a counterfeit substance) or

the possession of a controlled substance (or a counterfeit substance) with intent to

manufacture, import, export, distribute, or dispense.” U.S.S.G. § 4B1.2(b). When

determining if a crime is a “controlled substance offense,” a court should “look at

the elements of the convicted offense, not the conduct underlying the conviction.”

United States v. Lipsey, 

, 1201 (11th Cir. 1994) (per curiam).

      Under Alabama law, a person commits a crime of unlawful possession of

marijuana in the first degree if “[h]e possesses marijuana for other than personal

use; or . . . [h]e possesses marijuana for his personal use only after having been

previously convicted of unlawful possession of marijuana in the second degree or

unlawful possession of marijuana for his personal use only.” Ala. Code

§ 13A-12-213(a). Because Evans did not qualify for the “personal use” second

prong of the statute, he must have pleaded to the first prong of the statute that



                                           12
covers possession “for other than personal use.” We have held that, when

convicted under the “for other than personal use” prong, the statute punishes

possession of marijuana with intent to distribute. See United States v. Robinson,

, 1296 (11th Cir. 2009) (discussing whether § 13A-12-213 is a

serious drug offense under the Armed Career Criminal Act). Therefore, Evans’s

prior Alabama conviction for first degree marijuana possession qualifies as a

predicate offense for the purpose of the career offender enhancement. We find no

error in the district court including this enhancement in Evans’s sentence.

      5.     Possession of Firearm Enhancement

      Fifth, Evans argues that the district court clearly erred by enhancing his

offense level under U.S.S.G. § 2D1.1(b)(1) for possession of a firearm because he

was acquitted of the charged 18 U.S.C. § 924(c) offense, and he should not be

punished for conduct the jury did not find illegal. Evans also argues that the

enhancement violated his Second Amendment right to possess a firearm, as set

forth in District of Columbia v. Heller, 554 U.S. ___, 

(2008).

      We review the district court’s interpretation of the Sentencing Guidelines de

novo and its factual findings for clear error. United States v. Jordi, 

,

1214 (11th Cir. 2005) (citation omitted). “Possession of a firearm for sentencing

purposes is a factual finding.” United States v. Geffrard, 

, 452 (11th



                                          13
Cir. 1996) (citation omitted). According to “long-standing precedent, [r]elevant

conduct of which a defendant was acquitted nonetheless may be taken into account

in sentencing for the offense of conviction, as long as the government proves the

acquitted conduct relied upon by a preponderance of the evidence.” United States

v. Faust, 

, 1347 (11th Cir. 2006) (alteration in original) (quotation

omitted).

      According to U.S.S.G. § 2D1.1(b)(1), a court should increase the offense

level by two “[i]f a dangerous weapon (including a firearm) was possessed.” The

enhancement “should be applied if the weapon was present, unless it is clearly

improbable that the weapon was connected with the offense.” 

The

government has the burden “to demonstrate the proximity of the firearm to the site

of the charged offense by a preponderance of the evidence.” United States v.

Audain, 

, 1289 (11th Cir. 2001) (per curiam) (citation omitted). “If

the government is successful, the evidentiary burden shifts to the defendant to

demonstrate that a connection between the weapon and the offense was ‘clearly

improbable.’” 

      A pistol was found at Evans’s restaurant, laying on top of a safe containing

$27,000 in tightly wrapped bundles of cash. A government witness testified that

the possession of firearms and other weapons is common among individuals



                                         14
involved in the drug trade because of the danger presented by law enforcement and

thieves. In other words, the pistol found in Evans’s restaurant could reasonably be

determined to be an instrumentality used to protect the large amounts of money

generated by Evans’s drug trade.

      As for Evans’s Second Amendment argument, “the right secured by the

Second Amendment is not unlimited.” 

. Heller

specifically stated that the opinion was not meant to cast doubt on longstanding

restrictions on the possession of firearms, such as prohibiting possession by felons.

There is no support in Heller for the invalidation of the firearm

enhancement on the basis of the Second Amendment.

      The district court did not clearly err by finding that Evans possessed a

firearm in connection with the drug offense. The district court could apply the

enhancement even though the jury acquitted Evans of the § 924(c) firearm charge

because the government proved by a preponderance of the evidence that the

firearm was connected with the offense. Additionally, application of the

enhancement did not violate Evans’s Second Amendment right to bear arms.

      6.     Unreasonable Substantive Sentence

      Sixth, Evans argues that the life sentence imposed by the court was

unreasonable because it was longer than necessary to achieve any of the stated



                                          15
aims of 18 U.S.C. § 3553(a). He asserts that he is confined to a wheelchair and is

the caretaker for two minor children following the murder of their mother. He

argues that the district court failed to set out its reasoning for sentencing him to life

imprisonment or what consideration the judge gave the § 3553(a) factors.

       We review the “substantive reasonableness of the sentence by applying a

deferential abuse of discretion standard of review.” 

(citation omitted). Where the district court imposes a within-guidelines sentence, it

need only “set forth enough to satisfy the appellate court that [its] has considered

the parties’ arguments and has a reasoned basis for exercising [its] own legal

decisionmaking authority.” Rita v. United States, 

, 356, 

, 2468 (2007). The challenger “bears the burden of establishing that the

sentence is unreasonable in the light of both [the] record and the factors in section

3553(a).” United States v. Talley, 

, 788 (11th Cir. 2005) (per curiam).

 “The review for substantive unreasonableness involves examining the totality of

the circumstances, including an inquiry into whether the statutory factors in §

3553(a) support the sentence in question.” United States v. Gonzalez, 

, 1324 (11th Cir. 2008) (per curiam) (citation omitted), cert. denied, 

(2009).5


       5
        The § 3553(a) factors a court must consider in determining a sentence include: (1) “the
nature and circumstances of the offense and the history and characteristics of the defendant;” (2)

                                                16
       The guideline range for an offense level of 37 and a criminal history

category of VI is 360 months to life imprisonment. U.S.S.G. Ch. 5, Pt. A (table).

Conspiracy to commit an offense carries the same penalty as prescribed for the

substantive offense. 21 U.S.C. § 846. The statutory maximum sentence for a

person previously convicted of a felony drug offense who possesses between 500

grams and less than 5 kilograms of cocaine is life imprisonment. 

       At sentencing the district judge listened to Evans and his attorney and

recognized the mitigating factors, including Evans’s poor health. The judge stated

that he imposed a life sentence “[t]o provide just punishment for the defendant . . .

and to provide adequate deterrence.” The judge went on to note Evans’s

characteristics and history, specifically the fact that Evans has been involved in

drugs from an early age and that nothing ever made him quit his illegal activity.

We find that Evans’s sentence was supported by the § 3553(a) factors; therefore,

the district court did not abuse its discretion by sentencing Evans to life

imprisonment.


the need for the sentence (A) “to reflect the seriousness of the offense, to promote respect for the
law, and to provide just punishment for the offense,” (B) “to afford adequate deterrence to
criminal conduct,” (C) “to protect the public from further crimes of the defendant,” and (D) “to
provide the defendant with needed educational or vocational training or medical care;” (3) “the
kinds of sentences available;” (4) the Sentencing Guidelines range; (5) pertinent policy
statements of the Sentencing Commission; (6) “the need to avoid unwarranted sentencing
disparities;” (7) and the need to provide restitution to victims. See 18 U.S.C. § 3553(a)(1)–(7).

                                                 17
B.     Goodlow’s Motion to Supress

       Goodlow argues that the district court erred when it denied her motion to

suppress evidence found in her trailer because the government failed to

demonstrate probable cause to search her trailer.6 She asserts a lack of probable

cause because: (1) the search warrant affidavit did not state a connection between

Willingham’s drug activities and her trailer; (2) the affidavit did not contain

specific enough information concerning her involvement; (3) the warrant did not

include her trailer because it was issued for 5136 County Road, and her trailer is

properly at 5138 County Road; and (4) the affidavit failed to articulate with

specificity what the government expected to find in the trailer.

       We review a district court’s denial of a motion to suppress under a mixed

standard of review, examining findings of fact for clear error and the application of

law to those facts de novo. United States v. King, 

, 1341 (11th

Cir. 2007) (per curiam). As noted above, however, where the defendant has failed

to raise an issue below, we review for plain error. 

.




       6
         Goodlow also argues that the United States v. Leon, 

, 

(1984), good-faith exception to the exclusionary rule cannot apply to allow admission of the
seized evidence because the error in identification of the address and the lack of particularity in
the affidavit were made by the affiant, not the magistrate who issued the warrant. In light of our
determination that the search warrant was valid, we do not address this argument.

                                                18
      “A warrant which fails to sufficiently particularize the place to be searched

or the things to be seized is unconstitutionally over broad.” United States v.

Travers, 

, 1329 (11th Cir. 2000) (citation omitted). However,

“[w]hen evaluating a warrant, it is enough if the description is such that the officer

with a search warrant can, with reasonable effort, ascertain and identify the place

intended.” United States v. Ellis, 

, 703 (11th Cir. 1992) (alteration

omitted) (quotation omitted). “More specifically, a warrant’s description of the

place to be searched is not required to meet technical requirements or have the

specificity sought by conveyancers. The warrant need only describe the place to be

searched with sufficient particularity to direct the searcher, to confine his

examination to the place described, and to advise those being searched of his

authority.” 

(quotation omitted).

      “Probable cause to search a residence exists when “there is a fair probability

that contraband or evidence of a crime will be found in a particular place.” United

States v. Jenkins, 

, 1080 (11th Cir. 1990) (quotation omitted).

“Where a warrant to search a residence is sought, the affidavit must supply the

authorizing magistrate with a reasonable basis for concluding that Defendant might

keep evidence of his crimes at his home, i.e., a ‘safe yet accessible place.’” United




                                           19
States v. Kapordelis, 

, 1310 (11th Cir. 2009) (citation omitted), cert.

denied, 

(2010).

      The district court did not err by denying the suppression motion because the

search warrant identified Goodlow’s home with sufficient particularity. The

warrant incorporated by reference the affidavit and other attachments, which

explicitly stated that the area to be searched included the mobile home, and that the

mobile home sometimes used the 5138 address. Additionally, the district court did

not plainly err by denying her motion to suppress for lack of probable cause

because, based on information in the affidavit, there existed fair probability that

contraband would be found in the mobile home.

      Upon a thorough review of the entire record on appeal, and after

consideration of the parties’ appellate briefs, we affirm Evans’s and Goodlow’s

convictions, and Evans’s sentence.

      AFFIRMED.




                                          20