*2 REAVLEY, and Before GARZA BENAVIDES, Judges. Circuit GARZA, Judge: M. Circuit
EMILIO appeals his conviction James Cain of a firearm and sentence for felon, in violation of 18 U.S.C. by a 924(a)(2) (Count 1), pos- §§ 922(g)(1) and intent session with 841(a)(1) §§ in violation of U.S.C. (Count (b)(1)(C) 2), carry- using, and and brandishing ing, and crime, trafficking to a relation 924(c) (Count 3). violation of 18 U.S.C. I police officеrs in two Four New Orleans they a car that stopped unmarked vehicles speeding through had earlier observed city. After the high-crime area halt, exited, re- came to a Cain vehicle waistband, from his a revolver moved police lead flight. An officer took foot. As Cain gave chase on vehicle intersection, the second reached attempt in an to block his pulled up vehicle raised his re- response, Cain escape. vehicle, forcing the driv- toward the volver As he ran out of the line of fire. er to turn the vehicle revolver at by, pointed Cain his on wаs still and at the officer who in the second The two officers foot. four men joined the chase and the
vehicle they until through city streets ran lot with no exit. an enclosed entered blocked, turned escape Finding his offi- the revolver at the again pointed responded, officer This time thе lead cers. (argued), Ste- Brian Patrick Marcelle injur- revolver and discharging his service Atty., New Higginson, A. Asst. U.S. phen ing Cain.
Orleans, LA, for U.S. now-injured The officers subdued Barnard, Def. and searched man, weapon, Asst. Fed. Pub.
Robert F.
secured
plastic bag
They
a small
Schulberg, New Or- him.
discovered
Robin Elise
(argued),
totaling
of cocaine base
containing pieces
leans, LA, for Cain.
grams, including
paired
ten
pieces,
ability
present
five
the defendant’s
$20
”
defense,’
eight
pieces,
pieces.
given
and several
$10
$5
Williams,
possessed
The officers estimated that
Cir.
Tannehill,
(quoting
cocaine base with
tоtal street value of
(5th Cir.1995)).
1049, 1057-58
approximately
produced
The search
$400.
drug paraphernalia,
pager
no
or cell
*3
proposed
an instruction which
phone,
only
in cash. A later
$10.35
purported
explain
to
the circumstances un
test revealed no evidence of
blood
cocaine der
which
inference of intent to distrib
use.
ute
may
under U.S.C. 841
arise:
guilty
A
found Cain
on each count.
may
Intent
to distribute
be inferred
The district court sentenced Cain to 199
possession
from
of an amount of con-
(the
imprisonment
months
of
top
the
large
trolled substance that is too
to bе
range),
Guidelines
which
a three-
included
by
possessor
used
the
alone. But a
point sentencing enhancement for assault-
quantity
personal
is consistent with
ing
the
him.
use does not raise such an inference in
the
absence
other evidence. As a
II
2.Jp
law,
base,
matter
grams
(A)
appeal,
On
Cain asserts that:
the
by itself,
enough
is not
to raise an infer-
by
district court
refusing
erred
to instruct
ence
intent to distribute.
grams
that 2.4
of cocaine
added).
(emphasis
The district court ac-
itself,
prove
was not sufficient to
an intent
cepted the
in part, excising
instruction
distribute;
(B)
to
there was insufficient
last sentence. Cain asserts that this was
evidence to
establish
intent to distrib-
reversible error because this court
(C)
ute; and
was enhanced
(5th
United States v. Skipper,
A to establish intent. appeals the district court’s re Supreme Under the Court’s decision in jection proposed jury instruction. We States, 398, Turner v. United review a district court’s refusal give to (1970), 90 S.Ct. upon requested jury charge for an abuse of dis which both Skipper rely, and Hunt cretion. O’Keefe, United Statеs v. 426 critical determination for simply is (5th Cir.2005). F.3d The district quantity whether the at issue is consistent court retains substantial latitude in formu . personal Here, with use. the district lating jury charge, its court’s instruction substantially covered (5th Pettigrew, 77 F.3d Cir. the relevant statement of by adequate- law e 1996), and we will “only revers if the ly informing ie., the jury оf its task: to requested instruction substantially is cor determine quantity whether the is consis- rect; was not substantially covered personal and, so, tent with use if to find no charge whole; as a and if the omission of inference of an intent to distribute without requested instruction ‘seriously im- other evidence.1 No further instruction disposed 1. We Skipper Majors, of both and Hunt on Cir. presented, cognizant the facts 2003) ("No that the critical quantity minimum of the con- inquiry solely is quantity whether the at issue personal is consistent with use. See United addition, quality of cocaine base evidence of excision was needed. distributе); intent in- proposed from Cain’s final sentence Valdiosera-Godinez, 1095- seriously impair Cain’s did not struction (5th Cir.1991) (intent may be inferred was in a defense. Cain ability present value). In drug quantity, purity, from evidence producing from way precluded addition, two officers testified that per- with the amount was consistent they had never arrested user with use, precluded argu- he nor was sonal such amount cocaine base. had failed to ing that the Government These officers further testified that cocaine an in- evidence to show present sufficient usually through a crack base smoked cocaine base. Accord- tent that, arrested, pipe but when Cain did court did hold that the district ingly, we possess pipe drug paraphernalia or other rejecting its discretion not abuse consistent with cocaine base use. See *4 instruction. proposed Onick, United States v. 889 F.2d (5th Cir.1989) (inference of intеnt 1431 B presence drugs of small amount of argues that the evidence Cain next drug paraphernalia); and to sup at trial was insufficient presented (5th Cir.1992) Munoz, 957 F.2d 174 with in his conviction for port (finding paraphernalia, “distribution “The stan tent to distribute base. cash, quantities quality of or the value and sufficiency evаluating the of dard for intent). probative of the substance” whether, viewing the evidence is evidence Furthermore, the Government demon govern most to the light in a favorable in strated that Cain had no cocaine base ment, trier of fact could have a rational system night on the he was arrested— elements of the offense found the essential that Cain was not a probative evidence Williams, beyond a reasonable doubt.” States v. Gam current user. See United at 1059. “The essential elements 132 F.3d (2d Cir.2004) ble, (finding possession with the intent distribute ample evidence of intent in violation of 21 grams controlled substances 1.7 of co where recovered 1) 2) bags and posses twenty-six zip-lock caine base in knowledge, § are U.S.C. that the de there was no evidence where sion, intent to distribute the con ingested fendant smoked or otherwise States v. Del trolled substances.” United himself). Finally, Cain’s usе cocaine base (5th Cir.2001). gado, 256 F.3d capture again lawful gun evade was insuf contends that the evidence Cain to distribute. evidence of an intent some an intent to distribute. ficient to establish Martinez, 808 F.2d See United form and amount of the co The Cir.1987) (“This court has evidence of caine base recovered is some are ‘tools of the that firearms recognized grams The 2.4 had an intent to distribute. engaged illegal in trade’ of those thirty separate into been broken over in probative prov are highly activities and testimo pieces. The Government elicited Hunt, intent.”); 129 F.3d at ing criminal рieces that could be ny establishing these (distinguishing probative value 743-44 $20, and that Cain sold for between gun $5 a from a presence the mere approximately for possessed an amount worth in a defendant reaches situation which residence).2 (value after enter a Majors, gun F.3d at 796 Seе $400. type protests evidence of a similar required” 2. that substance is to establish trolled Skip- quantum was found insufficient distribute). of an intent to inference Skipper, police officers con- per and Hunt. ducting stop recovered traffic officer, light most ment assaulted such Viewing the evidence officer the course of the offense or immediate verdict, that to the we hold favorable ” Sentenoing .... flight therefrom rational trier of fact could find that Cain 3A1.2(b) (2003)(em- § Guidelines Manual possessed an intent to distribute cocaine added). phasis base.3 find that Amendment
We
Cain’s Sixth
rights
were violated because the
did
C
necessarily
not
find that
aimed a
Finally,
ap
Cain contends
firearm at the
or
en-
otherwise
plication
three-point
enhancement
gaged
conduct
constituted
as-
3A1.2(b)
aiming
under U.S.S.G.
sault
that created a
risk of
substantial
firearm at the
officers violated
First,
in-
injury.
superseding
serious
rights
his Sixth Amendment
under United
dictment
allege
does
Cain brand-
States v. Booker. See United States v.
pursuing officers,
ished a firearm at the
(5th Cir.2005)
Pineiro,
only that
weapon
he brandished the
(stating that where a defendant’s sentenc
drug trafficking
connection with a
crime.
ing range is increased based on faсts not Second, although
jury charge
included
by jury
found
or admitted
the defen
“brandishing,”
an instruction on
this in-
dant,
the sentence violates the Sixth
require
struction did not
to find
Amendment).4
*5
applies
The enhancement
an “assault” that “created a substantial
if,
creating
“in a manner
a substantial risk
bodily injury”
risk
serious
such that a
bodily injury,”
serious
the defendant
conviction on
support
this count would also
“knowing
having
or
reasonable cause to
enhancement
under
U.S.S.G.
3A1.2(b).5
person
Finally,
nothing
believe that a
was a law enforce-
there is
Lucien,
366,
crack cocaine and a razor blade
v.
United States
375-76
(5th
arguing
Cir.1995)
defendant. Other than
(finding
presence
the absence
that the
drug paraphernalia,
government pre-
guns
large
apart
and a
amount of cash in an
prove
sented no other evidence to
the defen-
require
finding
ment did
of intent to
distribute).
dant had an intent to distribute the crack
Skipper,
(finding
cocaine. See
ment by demon that the error was harmless ing Ill beyond a reasonable doubt strating stated, AFFIRM the For the reasons we of which a constitutiоnal error the federal conviction, but the sentence and VACATE complains did not contribute defendant received.”). sentencing REMAND for consistent with Although that he opinion. in the record that this is some indication there imposed the court would have
the district a harsher sentence under advi sаme or REAVLEY, Judge, dissenting in Circuit scheme, express it did not sory Guidelines part: ly such an intention. state Cf. affirming I concur in the conviction but Saldana, justification vacating the sen- see Cir.2005) (finding harmless error where only problem The with the sen- tence. departed upwardly court the district *6 im- is that the enhancement was tence that even if the Guidelines were stated guidelines when the law made the posed unconstitutional, the court held to be mandatory. go through the harm- So we to the same
would sentence defendant inquiry, wondering less what such a imprisonment). Without term of judge had known have been if the would stаtement, rejected the claim that we have mandatory. guidelines were minimum in the a sentence above the more sensible to remand the It would be sufficient to es range is alone Guidelines the decision whether judge case to the tablish harmlessness. See United (5th Cir.2005) always Almost a mere or- to resentence. Garza, 165, 171 entered, burdening without rejected the der would be that “this Circuit has (stating note, inju- might risk of serious itself defines create substantial person.” Of the statute display a firearm ry, argues to include the evidence at trial did not "brandish” he that the person." 18 U.S.C. to intimidate "pointed” [a] added). “in order necessarily that he establish 924(c)(4) jury (emphasis § Had the weapon at the officers. The record contains statutory using defi- instructed the entire been "point- testimony that Cain "raised” and/or nition, brandishing conviction for "rais[ingl” pistol pistol. ed” a Because might support that the nec- аn inference necessarily "assault” constitute an does not essarily that "created a found an "assault” “brandishing,” sufficient to constitute but is injury” bodily un- risk of serious substantial neces- we are unable to conclude 3A1.2(b). U.S.S.G. der finding sarily verdict on a that he based its "pointed” pistol at the officers. appeal de- Although Cain concedes on 6. liberately pointing at the officers the marshal to retrieve the defendant and judge go through resentencing. ALI, Petitioner,
Imtiaz GONZALES, Attorney R.
Alberto
General, Respondent.
No. 05-60343
Summary Calendar. Appeals,
United States Court
Fifth Circuit. 15, 2006.
Feb.