Filed: Nov. 03, 2020
Latest Update: Nov. 04, 2020
Case: 19-30375 Document: 00515625161 Page: 1 Date Filed: 11/03/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-30375 November 3, 2020
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff - Appellee
v.
TROY KENDRICK, JR., also known as 99,
Defendant - Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
ON PETITION FOR REHEARING
Before STEWART, DENNIS, and HAYNES, Circuit Judges.
CARL E. STEWART, Circuit Judge:
Treating the Petition for Rehearing En Banc as a Petition for Panel
Rehearing, the Petition for Panel Rehearing is DENIED. No member of the
panel nor judge in regular active service of the court having requested that the
court be polled on Rehearing En Banc (Fed. R. App. P. and 5TH Cir. R. 35), the
Petition for Rehearing En Banc is DENIED.
The opinion is WITHDRAWN, and the following opinion is
SUBSTITUTED:
Defendant-Appellant Troy “99” Kendrick was charged and convicted of
conspiracy to distribute cocaine base (“crack cocaine”) and possession of a
firearm by a convicted felon. He now contests the Government’s Title III
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wiretap that intercepted calls and text messages from his phone, the
sufficiency of the evidence on his drug conspiracy conviction, the district court’s
sentencing enhancement for possessing a firearm, and the effectiveness of
counsel. We affirm.
I.
The context surrounding Kendrick’s Title III wiretap, motion to
suppress, and jury trial and subsequent sentencing are set forth below.
A.
Wiretap and Search Warrant
The wiretap events are drawn from Drug Enforcement Administration
(DEA) Special Agent (SA) Scott Arseneaux’s supporting warrant affidavits.
1. The Garrick Jones Surveillance and Wiretap. The DEA and St. John
Parish Sheriff’s Office (SJPSO) initially investigated Kendrick’s co-defendant
Garrick “Gnu” Jones and used a reliable confidential source/informant to
surveil Jones distributing crack cocaine. The narcotics transactions involving
the informant and Jones occurred on January 4 and February 17 of 2016, and
on March 10, the informant was involved in a physical altercation with Jones.
• January 4: The DEA and SJPSO officials witnessed the informant
contact Jones at his phone number, Telephone #1, 1 to arrange meetings
to purchase crack cocaine. The informant met with Jones at Jones’s
Reserve, Louisiana home and purchased 12 grams of crack cocaine.
According to the informant, he witnessed Jones initially meet Kendrick
in the front of Jones’s home to purchase crack cocaine before
subsequently selling the narcotics to the informant. 2
• February 17: The DEA and SJPSO again observed the informant
contact Jones (via Telephone #1) to arrange a meeting to purchase a
half-ounce of crack cocaine from Jones. Once the informant and Jones
1 The cellular phones are given shorthand references because these devices were later
subject to court-authorized wiretaps.
2 A subsequent SJPSO police report determined that Kendrick was misidentified in
this January transaction. See, infra, Sect.I.B.
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agreed to meet, the DEA and SJPSO surveillance units followed the
informant as he or she traveled to Jones’s home wearing a recording
device. After the informant arrived at Jones’s residence, the DEA and
SJPSO observed Jones walk to the next-door neighbor’s home to meet
with an unknown individual, who was later identified as Kendrick. 3
After meeting with Kendrick, Jones returned to his residence to
complete his transaction with the informant that was for approximately
12 grams of crack cocaine.
• March 10: The DEA and SJPSO directed the informant to contact Jones
to purchase more crack cocaine, but Jones never responded. Later that
day, co-defendant Travis “Tree” Carter (1) contacted the informant; (2)
informed the informant that Carter would be taking over for Jones; and
(3) told the informant to meet him at another Reserve location. The
informant met with Carter and shortly thereafter, sent a distress signal
to the DEA and SJPSO. The DEA and SJPSO officials arrived and
witnessed Jones and Carter fleeing the scene after attempting to assault
the informant with a piece of lumber. Jones and Carter were arrested
and subsequently released because the informant did not want to press
charges in fear of retaliation.
In late April, SA Arseneaux attested to the foregoing investigative facts
as a basis for probable cause to obtain a wiretap on Jones’s Telephone #1. A
district judge signed an order authorizing the Title III wire intercepts, and on
May 12, the DEA officials began monitoring Telephone #1.
• May 12: The DEA agents intercepted an incoming 4:07 p.m. call from
an unidentified woman calling Jones. The unidentified woman asked
for “a dime,” and Jones confirmed that he was in possession of one. A
minute later (4:08 p.m.), Jones sent a text message to a number
associated with Telephone #2, which the authorities determined was
Kendrick’s telephone number. Jones’s text message asked Kendrick
where he was located, and Kendrick responded: “leaving Home Depot.”
• May 17: The DEA agents intercepted an incoming 9:32 a.m. call from
another woman calling Jones. During the call, Jones described a recent
situation where he “flushed everything [he] had last night” because he
was supposedly concerned about law enforcement surrounding his
3 According to the informant, Jones actually stated that he was meeting “99,”
Kendrick’s alias.
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home. The caller then inquired as to whether Jones “re-up[’ed],”
and Jones stated that he was “waiting on my [sic] to come through right
now.” Five minutes after the call ended (9:37 a.m.), the agents
intercepted an outgoing call from Jones to Telephone #2, where
Kendrick picked up and greeted Jones. Jones replied that he “need[ed]
[Kendrick] til tomorrow man” to which Kendrick stated, “I got you.”
Jones subsequently sent an outgoing 3:31 p.m. text message to the
number that called him at 9:32 a.m., stating “I’m back gud.”
• May 20: Jones sent an outgoing 5:00 p.m. text message to Telephone #2,
stating “Bring me 1.” At 5:48 p.m., Kendrick (using Telephone #2) called
Jones, asking Jones where Jones was currently located. Jones informed
Kendrick that he was “in the truck with Tree [and that he was] coming
to get that [in a] little bit, man.” Kendrick told Jones that he was at a
Valero gas station and Jones confirmed that he was “about to be coming
to get that.”
2. The Kendrick Wiretap. Based on the foregoing intel, SA Arseneaux
submitted a Title III wiretap affidavit in which he attested and analyzed the
investigative facts to conclude (based on his experience) that Jones relied on
Kendrick as his drug supplier. He also believed that there was probable cause
to monitor Kendrick’s Telephone #2, and on June 13, the Title III wiretap
request was granted (via court order) for a 30-day window.
• June 13: The DEA agents intercepted an incoming 3:59 p.m. text
message from Kendrick to Jones, stating “Wya”—which is a common
acronym for “where you at.” One minute later (4:00 p.m.), the agents
intercepted an incoming text message from Jones to Kendrick, stating
“Da Crib. I need 1,” and within seconds, Kendrick replied via text
message, “[c]oming.”
• June 22: The DEA agents intercepted an incoming 9:06 p.m. text
message from Jones to Kendrick, asking “U around”, and at 9:12 p.m.,
Kendrick sent outgoing text message replying “Yes.” At 9:15 p.m., Jones
responded (via text message) that he “need[s] 1.”
• June 23: The DEA agents intercepted a series of text messages between
Jaden “Jordy” Robertson and Kendrick, which included, in relevant
part: an incoming 3:25 a.m. text from Robertson stating “Wats man? I
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will have something today for u,” and an outgoing 8:01 p.m. text
message from Kendrick to Robertson stating, “Hey I need to buy 1 too.”
3. The Search Warrant and Kendrick Arrest. Given the incriminating
wiretap communications and other events (including, inter alia, Jones’s drug
transactions with the informant and the assault of the informant in March),
SA Arseneaux concluded that based on his experience, Kendrick was Jones’s
supplier. He also believed there was probable cause to search Jones’s and
Kendrick’s adjacent homes for evidence of drug trafficking. A search warrant
application was presented to a magistrate judge, and the judge authorized the
search.
In executing the warrant on Kendrick’s home, the DEA officials located
and seized: (1) a digital scale located on Kendrick’s person; (2) two bottles of
mannitol; (3) scattered cash amounting to roughly $10,000; (4) one loaded
firearm; (5) an invoice listing items commonly used for growing marijuana; (6)
packaging material; (7) a money counting machine; (8) a bulletproof vest; and,
(9) concealed under the floorboard in the bedroom closet, a compartment that
contained four handguns, ammunition, cash, a ski mask, and gloves. No
narcotics were seized.
The DEA agents arrested Kendrick (along with his co-defendants Jones,
Carter, Michael Sanders, and Reshad Frank), and a grand jury indicted them
in a nine-count complaint for offenses related to drug trafficking.
B.
Motion to Suppress
Kendrick moved to suppress the evidence recovered from the Title III
wiretaps. 4 Kendrick’s main argument focused on a discrepancy between SA
4While Kendrick was represented by counsel at the time, he initially filed a pro se
motion to suppress. The district court struck the motion and set forth a briefing schedule for
Kendrick (with the assistance of counsel) to submit his suppression motion.
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Arseneaux’s affidavit and a SJPSO police report describing the January 2016
transaction involving the informant and Jones. While the informant stated
that Jones met with Kendrick during that drug transaction (see, supra,
Sect.A.1), this police report stated that “the individual that was present . . .
was in fact [codefendant] Travis Carter,” not Kendrick. Kendrick claims that
the Government deliberately misidentified him. In response, the Government
posited that all the wiretaps were supported by probable cause and Kendrick’s
arguments point to SA Arseneaux’s credibility, which is a jury question.
The district court held a hearing to determine whether Kendrick could
demonstrate that the Government’s affidavits contained deliberate falsehoods
or were made with reckless disregard for the truth—thus, warranting an
evidentiary hearing under Franks v. Delaware. 438 U.S. 154 (1978). After
hearing the parties’ arguments, the court concluded that there were no
deliberate falsehoods in the challenged affidavit and denied the motion.
C.
Trial and Sentencing
Kendrick’s co-defendants pleaded guilty to various charges, but he
pleaded not guilty and proceeded to trial. Before trial, the grand jury returned
a second superseding indictment that charged Kendrick with the following:
Count 1 for conspiracy to distribute and possess with intent to distribute an
unspecified quantity of powder cocaine, crack, and marijuana, in violation of
21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846; Count 2 for possession of a
firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2);
and Count 3 for possession of a firearm in furtherance of drug trafficking
activity, in violation of 18 U.S.C. § 924(c)(1)(A) and 924(c)(1)(A)(i).
Kendrick’s trial commenced thereafter and lasted four days. The
Government’s trial evidence primarily consisted of: (1) the communications
from the Title III wiretaps of Jones’s and Kendrick’s phones and the seized
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items from searching Kendrick’s home; (2) testimony from several co-
defendants (Jones, Carter, Sanders) confirming that they bought varying
amounts of crack cocaine from Kendrick; (3) testimony from a DEA drug
trafficking expert opining that Kendrick was a “mid-to-high-level” drug dealer
and that the digital scale was “a tool of the trade” for drug traffickers; and (4)
testimony from the DEA agent that interviewed Kendrick post arrest, stating
that Kendrick identified his supplier, confessed to buying one-fourth of a
kilogram of powder cocaine about once per month between December 2015 and
July 2016, and admitted to selling gram-quantities to Jones about fifteen times
per month.
Kendrick’s case-in-chief included his own testimony in which, inter alia,
he attested to using the mannitol for dietary purposes and the scale was used
to measure chemicals for his saltwater aquarium. He also testified that his
admissions about drug dealing (during the DEA interview) were untruthful
statements because he initially wanted to plead guilty. 5
Upon deliberation, a jury convicted Kendrick on Counts 1 and 2, and
acquitted him on Count 3.
At Kendrick’s sentencing hearing, the district court agreed with the
previously filed Presentence Investigation Report’s (PSR) recommendation
that Kendrick was an armed career criminal under the Armed Career Criminal
Act (ACCA). This recommendation was based on Kendrick’s 2002 conviction
for distributing marijuana and 2003 conviction for cocaine distribution.
Kendrick did not object.
The district court also recognized the PSR’s four-level enhancement for
possessing a firearm in connection with the drug conspiracy. Kendrick
5 Shortly after his arrest, Kendrick signed a plea agreement pleading guilty to several
counts, but he later withdrew his plea and filed his suppression motion.
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submitted objections contesting this finding because he was not convicted of
Count 3 and his firearm was not in close proximity to the paraphernalia and
drug-manufacturing materials. The court informed Kendrick that it could
consider facts and charges in which Kendrick was acquitted and make a
finding by the preponderance of the evidence. In turn, because the firearms
were in the vicinity of the mannitol and digital scale, the court agreed with the
PSR’s recommendation that the firearms were kept with the purpose of
facilitating a drug operation and applied the enhancement. The court
therefore sentenced Kendrick to an imprisonment term of 327 months.
Kendrick now appeals.
II.
Kendrick seeks review of (1) the district court’s motion to suppress
decision; (2) his conspiracy conviction; and (3) the district court’s sentencing
enhancements.
He also sets forth a Sixth Amendment claim of ineffective counsel. He
did not preserve this challenge for direct appeal. See United States v. Valuck,
286 F.3d 221, 229 (5th Cir. 2002) (“Sixth Amendment claims of ineffective
assistance of counsel should not be litigated on direct appeal, unless they were
previously presented to the trial court.”). We therefore dismiss the Sixth
Amendment claim without prejudice 6 and address the remaining challenges
below.
A.
Motion to Suppress and Franks Hearing
According to Kendrick, the district court erred in its suppression motion
ruling and denial of a Franks hearing. On review of a district court’s motion
A 22 U.S.C. § 2255 habeas motion is the appropriate procedural tool for this Sixth
6
Amendment claim.
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to suppress ruling, we review factual findings for clear error and conclusions
of law de novo. See United States v. Alvarez, 127 F.3d 372, 373 (5th Cir. 1997).
In addressing a Franks hearing request, the Supreme Court has
determined that “the Fourth Amendment entitles a defendant to a hearing on
the veracity of a warrant affidavit if he can make a sufficient preliminary
showing that the affiant officer obtained the warrant by recklessly including
material falsehoods in a warrant application.” Melton v. Phillips, 875 F.3d 256,
262 (5th Cir. 2017) (citing
Franks, 438 U.S. at 171–72). If the preliminary
showing is made and the hearing is granted, a warrant “must be voided if the
defendant shows by a preponderance of the evidence that the affidavit
supporting the warrant contained a false statement made intentionally or with
reckless disregard for the truth and, after setting aside the false statement,
the affidavit’s remaining content is insufficient to establish probable cause.”
United States v. Ortega,
854 F.3d 818, 826 (5th Cir. 2017) (citing
Franks, 438
U.S. at 155–56). To resolve a challenge to an affidavit’s veracity, we first
determine if it contains a false statement or material omission. If so, then we
decide whether “the false statement [or omission was] made intentionally or
with reckless disregard for the truth.” Finally, “if the false statement is
excised, does the remaining content in the affidavit fail to establish probable
cause?”
Ortega, 854 F.3d at 826.
Kendrick contends that SA Arseneaux’s Title III wiretap affidavit
contained false statements and material omissions that were reckless. Once
these misstatements are removed under Franks, Kendrick maintains that
what remains in the affidavit is SA Arseneaux’s conclusory interpretations of
Kendrick’s otherwise innocuous calls and text—which are insufficient to
support probable cause. We disagree. Probable cause still exists even if the
allegedly false statements are excised.
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“Probable cause exists when there are reasonably trustworthy facts
which, given the totality of the circumstances, are sufficient to lead a prudent
person to believe that the items sought [by the warrant] constitute fruits,
instrumentalities, or evidence of a crime.” Kohler v. Englade, 470 F.3d 1104,
1109 (5th Cir. 2006).
The following table illustrates Kendrick’s challenged statements in
comparison to the affidavit’s remaining content:
Alleged Falsehoods and Omissions Unchallenged Affidavit Content
• Misidentifying Kendrick as the • February 17 transaction where
individual involved in the January the informant identified Kendrick
2016 transaction with Jones and as the supplier that Jones meets
the confidential informant, when with during the drug deal;
it was in fact Carter;
• May 12 events in which an
• Omitting context from the May 12 unidentified individual contacted
call that Jones and Kendrick had Jones for a dime and a minute
already spoken that day about later, Jones contacted Kendrick to
meeting up before Jones received a determine his location;
request for narcotics, suggesting
• May 17 exchange between Jones
that the two had a legitimate
and Kendrick in which Jones said
reason for the call unrelated to
he needed Kendrick which
drugs;
occurred five minutes after a caller
• Misclassifying a May 17, 2016 call
asked Jones if he resupplied his
as outgoing from Jones to
drug inventory; and
Kendrick, when in fact it was
incoming from Kendrick to Jones; • May 20 text message from Jones to
Kendrick stating “Bring me 1”
• Omitting exculpatory context from
followed by them coordinating a
the same May 17 call in which
meetup location.
Kendrick and Jones discussed
non-drug-related topics including
a basketball game for
approximately four minutes after
Kendrick asked Jones what he had
going on during a lull in the
conversation;
• May 20 call misclassifying
Kendrick as the person near the
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Valero gas station, when in fact it
was Jones; and
• Omitting social calls between
Kendrick and Jones that support
the assertion that they had non-
drug-related communications.
The remaining unchallenged affidavit content, i.e., the February 17
transaction, the May 12 events, the May 17 exchange and the May 20 text
message, along with the insertion of the improperly omitted context of the May
12 and May 17 calls, sets out events that SA Arseneaux believed indicated that
trafficking offenses had been committed. These included Jones selling crack
cocaine and Kendrick distributing crack cocaine to local dealers like Jones.
Indeed, the affidavit’s contents undoubtedly confirm that Jones sold drugs to
the informant on one occasion where he met with Kendrick amidst completing
the drug transaction; and when Jones needed to make local drug sales, he
contacted Kendrick about resupplying him and they made efforts to meet.
Consequently, we find that the totality of the circumstances supports a
probable cause finding. See United States v. Privette, 947 F.2d 1259, 1261 (5th
Cir. 1991) (“Probable cause existed here without any of the challenged
material.”).
In sum, because Kendrick failed to make “a sufficient preliminary
showing that the affiant officer obtained the warrant by recklessly including
material falsehoods in a warrant application,” Melton, 875 F.3d at 256, the
district court did not err in denying his request for a Franks hearing. Even if
Kendrick had made a sufficient preliminary showing, he still would not have
been entitled to relief. This is because, after excising the alleged falsehoods and
omissions and inserting the improperly omitted context of the May 12 and 17
calls and texts, the affidavit still included numerous other incriminating facts
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regarding Kendrick and his involvement with Jones, giving rise to probable
cause.
The district court did not err in denying Kendrick’s request for a Franks
hearing. The district court’s denial of Kendrick’s motion to suppress was
warranted.
B.
Conspiracy Conviction
Kendrick contends that the Government set forth insufficient evidence
to convict him of conspiracy to distribute powder cocaine, crack cocaine, and
marijuana under 21 U.S.C. § 841. He avers that the Government’s evidence
only demonstrates a series of buyer-seller relationships, not a concerted action
between himself and others. We disagree.
Because Kendrick’s sufficiency challenges were not preserved by an
appropriately timed motion for acquittal, we review for plain error. See United
States v. Suarez, 879 F.3d 626, 630 (5th Cir. 2018).
To prove a 21 U.S.C. § 841 conspiracy to distribute narcotics, “the
government must prove: (1) an agreement between two or more persons to
violate the narcotics laws, (2) the defendant’s knowledge of the agreement, and
(3) the defendant’s voluntary participation in the conspiracy.” United States v.
Zamora, 661 F.3d 200, 209 (5th Cir. 2011). The offense’s central tenet is the
agreement, which may be “infer[red] . . . from . . . testimony and the other
circumstantial evidence.”
Id. (internal quotations and citation omitted). But
the agreement “is not to be lightly inferred.” United States v. Ganji,
880 F.3d
760, 767 (5th Cir. 2018).
The Government presented sufficient evidence to prove that Kendrick
participated in a conspiracy to distribute crack cocaine. These examples
support this conclusion. From Kendrick’s home and person, the Government
seized a digital scale, plastic wrapping, $10,000 (scattered in various cash
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denominations), a money counting machine, a bulletproof vest, a ski mask, and
a hidden compartment containing firearms. An expert opined that the digital
scale could be associated with drug distribution and that Kendrick was a “mid-
to-high-level” drug dealer. Upon his arrest, Kendrick identified his main
supplier and admitted that he would buy one-fourth of a kilogram of powder
cocaine about once per month for a seven-month period, which he later sold to
co-conspirators. Cf. United States v. Atkins, 746 F.3d 590, 605 (5th Cir. 2014)
(upholding a conspiracy conviction where the suspect regularly purchased
cocaine “in quantities large enough for redistribution”). He also identified
Robertson as his “biggest customer”, occasionally selling him one-ounce
quantities of cocaine.
Also, each of Kendrick’s co-defendants (Carter, Jones, and Sanders)
testified that they regularly bought crack cocaine from Kendrick. The wiretap
recordings corroborated these dealings, especially as it pertains to Kendrick’s
dealings with Jones. Various text messages from Jones to Kendrick (“Bring
me 1”; “I need 1”; “need 1”; and “about to be coming to get that”) indicated that
Jones contacted Kendrick for resupplying his drug inventory. Additionally, on
these several occasions, Kendrick and Jones coordinated plans to meet. And
the pen register and trace data revealed a large volume of calls and text
messages between Kendrick and Jones in a 24-day period.
Taking the evidence in totality, a reasonable juror could infer that
Kendrick was not a one-off buyer or seller as his role was more than that of a
mere acquirer or street-level user. Cf. United States v. Maseratti, 1 F.3d 330,
336 (5th Cir. 1993) (stating that mere acquirers and street-level users were
shielded from conspiracy to distribute offenses). There are various examples
of Kendrick entered into an agreement with a supplier and/or his co-defendants
(and other individuals) with the knowledge and intent to further the unlawful
purpose of selling narcotics. See United States v. Delgado,
672 F.3d 320, 334
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(5th Cir. 2012) (en banc) (finding an agreement between coconspirators
because the suspect worked with a supplier and an intended buyer who shared
an intent to distribute narcotics and “their relationship extended beyond one
simple buy-sell transaction.”). As such, a rational trier of fact could have found
that Kendrick conspired with others to distribute crack cocaine. Accordingly,
Kendrick’s conviction was sound.
C.
Sentencing Enhancement
Lastly, Kendrick challenges the district court’s two sentence
enhancements for possessing a firearm in furtherance of drug distribution and
defining him as an ACCA career offender. The former objection was preserved
and therefore reviewed de novo, and the latter was not preserved and is
reviewed for plain error. See United States v. Benitez, 809 F.3d 243, 248 (5th
Cir. 2015) (“When challenges to a district court's interpretation or applications
of sentencing guidelines are preserved, they are reviewed de novo; when
unpreserved, they are reviewed for plain error.”).
1. Firearm Enhancement. Kendrick’s position is that the court erred in
applying this enhancement because no drugs or drug paraphernalia were
found at his home. As to the mannitol, Kendrick suggests that it was being
used as a laxative, and with regard to the digital scale, he maintains that these
are “innocent devices” that only become drug tools with supporting evidence.
We disagree.
The Sentencing Guidelines’ commentary provides that “in the case of a
drug trafficking offense in which a firearm is found in close proximity to drugs,
drug-manufacturing materials, or drug paraphernalia,” an enhancement
applies because “the presence of the firearm has the potential of facilitating”
these types of offenses. See U.S.S.G. § 2K2.1 cmt. 14(B)(ii).
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Whether Kendrick’s firearms were in close proximity to drug
paraphernalia/manufacturing materials has a straightforward answer—yes.
In executing the search warrant, the agents seized four firearms and two
bottles of Mannitol. Mannitol is a diuretic that is commonly used as a cutting
agent to dilute cocaine into larger quantities of cocaine base or crack cocaine.
See Posters ‘N’ Things v. United States, 511 U.S. 513, 515 (1994) (referring to
mannitol as a drug diluent); accord United States v. Blackshire, 803 F. App’x
308, 312 (11th Cir. 2020) (Defendant admitting “that he used mannitol to make
cocaine last longer.”). Because the district court’s finding that the mannitol
was considered a drug manufacturing instrument was a plausible finding
(given that it is a common cutting agent) and that the instrument was in the
vicinity of Kendrick’s firearms, the court correctly concluded that firearms
were “found in close proximity to drugs, drug-manufacturing materials, or drug
paraphernalia.” U.S.S.G. § 2K2.1(b)(6)(B) cmt. n. 14(B)(ii). Consequently, we
affirm the district court’s application of this possession of a firearm
enhancement.
2. ACCA Career Offender Enhancement. A defendant qualifies as a
career offender under Sentencing Guidelines § 4B1.1(a) if he has “at least two
prior felony convictions of either a crime of violence or a controlled substance
offense” at the time he committed his offense of conviction. U.S.S.G.
§ 4B1.1(a)(3). Because Kendrick has a previous 2002 conviction for
distributing marijuana and 2003 conviction for cocaine distribution, the
conspiracy conviction at issue triggered the career offender classification.
Kendrick maintains that it was plain error to classify him as a career
offender because conspiracy convictions should not qualify as “controlled
substance offense[s]” under § 4B1.1(a). Both the Guidelines’ commentary and
our precedent hold otherwise.
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A “controlled substance offense” is as “an offense under federal or state
law . . . that prohibits the manufacture, import, export, distribution, or
dispensing of a controlled substance . . . .” Id. § 4B1.2(b). The Guidelines’
commentary explains that a “controlled substance offense include[s] the
offenses of aiding and abetting, conspiring, and attempting to commit such
offenses.”
Id. § 4B1.2 cmt. n.1 (emphasis added) (internal quotations omitted).
And we have previously stated that this commentary note confirms that “[t]he
Sentencing Commission has now lawfully included drug conspiracies in the
category of crimes triggering classification as a career offender under § 4B1.1
of the Sentencing Guidelines.” United States v. Lightbourn,
115 F.3d 291, 293
(5th Cir. 1997). Given that Lightbourn has not been overturned, its holding—
conspiracies, like Kendrick’s, qualify as controlled-substance offenses—
remains binding here. See id.; cf. E.E.O.C. v. LHC Grp., Inc.,
773 F.3d 688,
695 (5th Cir. 2014) (stating that the rule of orderliness requires the court to
apply earliest Fifth Circuit articulation).
Accordingly, Kendrick’s instant conspiracy conviction coupled with his
2002 and 2003 felony conviction deem him an ACCA career offender. The
district court therefore did not commit plain error in applying this
enhancement.
III.
For the reasons set forth above, we AFFIRM the district court’s motion
to suppress finding; Kendrick’s conspiracy to distribute conviction; and the
court’s sentencing calculation.
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