On May 22, 1996, a jury convicted William Bruce Hare and John Timothy Majors for their possession of marihuana with the intent to distribute and their participation in a conspiracy to distribute marihuana. On appeal, Hare and Majors challenge both the validity of their convictions and the duration of their sentences. We affirm.
I. Factual and Procedural Background
On November 16, 1995, Roy Thomas Simmons and Gregory Alexander Mouton were arrested for the possession of approximately five pounds of marihuana. This marihuana was discovered by two Texas Department of Public Safety (Texas DPS) Troopers in connection with a routine traffic stop on Interstate 10. In an effort to minimize their criminal liability, Simmons and Mouton agreed to help the authorities arrest Hare, who had supplied them with the five pounds of marihuana seized during the traffic stop.
After Simmons and Mouton described their prior dealings with Hare, Sergeant Moore of the Texas DPS Narcotics Service ordered the surveillance of Hare’s residence. While observing Hare’s residence, Sergeant Greer, also of the Texas DPS Narcotics Service, saw Hare and Majors driving a blue Buick and saw Tamorra Lynn Pinkston driving a white Dodge Intrepid. Moore also convinced Mouton to telephone Hare and initiate negotiations regarding an additional purchase of marihuana. These calls were recorded by Moore with Mouton’s permission. On November 18,1995, Hare agreed to deliver 50 pounds of marihuana to Mouton the following day in Orange, Texas. Moore and Greer then decided to intercept this shipment and enlisted the aid of other law enforcement officers to carry out their plan.
On November 19, 1995, Hare spoke with Mouton and confirmed the delivery of the Marihuana in Orange. Pinkston also contacted Mouton and told him that she and Hare would be traveling in a white ear. This information was relayed to Greer, who, along with other officers involved in the operation, was positioned on Interstate 10 between Hare’s residence and Orange. Greer eventually spotted Hare and Pinkston traveling in *423 the white Dodge that he had previously seen at Hare’s residence. He also identified Majors and a female companion following in the blue Buick that he had earlier observed at Hare’s residence.
Greer decided to follow Majors and advised Sergeant Gary Porter, a member of the Jefferson County Narcotics Task Force, to follow Hare. While following Hare and Pink-ston in Jefferson County, Porter noticed the Dodge twice weave out of its lane. Porter then stopped and detained Hare and Pink-ston.
Shortly after Porter stopped Hare and Pinkston, Greer observed the Buick being driven by Majors weave onto the shoulder of the highway. Greer then informed DPS Trooper Daniel Young, who was also following Majors, that he had observed Majors commit a traffic violation. Young then twice witnessed the Buick leave its lane. After the last of these violations, Young and Greer stopped Majors in Orange County.
During the stop, Greer and Young questioned Majors and his companion about their destination and received conflicting answers. They also noticed that Majors was extremely nervous. When Greer and Young asked for consent to search the Buick, Majors refused. Greer then decided to detain Majors until Porter, who commanded a drug-sniffing dog, could arrive. This detention lasted approximately ten minutes. When Porter arrived, he immediately used his canine to sniff around the perimeter of the Buick. The dog alerted on the trunk of the car. When the officers searched the trunk, they discovered approximately 50 pounds of marihuana. After Young arrested Majors, the officers searched the interior of the Buick. This search produced 200 tablets of a narcotic known as “ecstasy.”
The following day, Moore obtained a search warrant for Hare’s residence. The search turned up marihuana in the kitchen. In the master bedroom, the officers executing the warrant found ledgers linking Hare to the distribution of over 660 pounds of marihuana, additional marihuana, and a firearm on a nightstand.
On February 8, 1996, a federal grand jury returned a superseding indictment charging Hare, Majors, and Pinkston with conspiracy to distribute marihuana. In addition, Hare and Majors were each charged with possession with the intent to distribute marihuana in violation of 21 U.S.C. § 841(a)(1). The defendants were tried together before a jury and Hare and Majors were found guilty on both counts. 1 The district court sentenced Hare to concurrent sentences of 300 months imprisonment for his conspiracy conviction and 120 months imprisonment for his possession conviction. Majors received concurrent sentences of 51 months imprisonment for each conviction.
II. DISCUSSION
A. Defendant Hare
1. The Admissibility of Hare’s Eleven-Year-Old Conviction for Possession with the Intent to Distribute Marihuana
Hare challenges the district court’s admission of an eleven-year-old conviction for possession with intent to distribute marijuana. Although Hare has conceded that under Fed. Rule Evid. 404(b), his prior conviction was relevant to the issue of his intent, he claims that the district court erred when deciding that the probative value of his eleven-year-old conviction was not substantially outweighed by its prejudicial and cumulative effect. Fed.R.Evid. 403;
United States v. Beechum,
According to Hare, the probative value of his prior conviction was slight, if for no other reason than its age. Cf Fed.R.Evid. 609(b) (adopting a ten-year time limit, absent unusual circumstances, on the use of prior convictions for impeachment purposes). With respect to the cumulative effect of this evidence, Hare contends that this additional *424 evidence of his intent was entirely unnecessary because the Government’s remaining evidence of guilt was overwhelming. With respect to the prejudicial effect of his prior conviction, Hare notes that some risk of prejudice from a conformity inference remained even after the district court properly instructed the jury that it could only consider this evidence as it related to Hare’s intent. Accordingly, Hare concludes that his prior conviction should have been excluded because its probative value was substantially outweighed by its prejudicial and cumulative effect.
Hare’s contention is not without merit. The Government had ample evidence of Hare’s guilt, including the physical evidence linking Hare to a large quantity of drugs, the audiotapes of Mouton’s conversations with Hare regarding the delivery of a large quantity of marihuana, and the testimony of Mouton and the law enforcement officers who arrested Hare and searched his residence. Moreover, the probative value of the prior conviction on the question of intent was slight and its introduction into evidence, even when accompanied by a limiting instruction, did pose some risk of unfair prejudice given that Hare was once again charged with possession with the intent to distribute marihuana. Nevertheless, we need not decide whether the district court abused its discretion when admitting Hare’s prior conviction, for Hare is caught in a catch-22: Even if the district court improperly admitted his prior conviction because it was unnecessarily cumulative in light of the overwhelming nature of the evidence against him, the remaining evidence convinces us that that the error was harmless.
See, e.g., United States v. Tomblin,
2. The Authenticity of Six Audio Tapes Made By Moore
Hare argues that the district court abused its discretion under
United States v. Buchanan,
3. The Sufficiency of the Government’s Notice of Intent to Seek a Career Offender Enhancement
Hare asserts that he lacked “notice of the Government’s intent to use a prior conviction for career offender enhancement,” in part, because “he was not personally served.” In order for a district court to enhance a sentence under 21 U.S.C. § 841, “the United States attorney [must] file[ ] [before trial] an information with the court (and serve[] a copy of such information on the person or counsel for the person) stating in writing the previous convictions to be relied upon.” 21 U.S.C. § 851;
see United States v. Gonzales,
*425 4. The District Court’s Calculation of the Quantity of Marihuana Attributable to Hare
Hare complains that the district court erred when calculating the amount of marihuana to be used for sentencing purposes because the evidence underlying the district court’s conclusion that he was responsible for distributing 1,040.75 pounds of marihuana during the conspiracy was unreliable. We will set aside a district court’s drug quantity calculation for sentencing purposes only if it is clearly erroneous.
United States v. Gaytan,
The district court adopted the PSR’s findings with respect to the quantity of marihuana only after verifying the evidentiary support for the PSR’s calculations. .This support was in the form of sworn “trial testimony as to the facts surrounding the defendant’s possession [of] all but 150 pounds” of the 1040.75 pounds attributed to Hare by the PSR. Further, the “[[Information regarding the [remaining] 150 pounds was obtained from ... Moore and Majors during subsequent post-trial interviews.” The district court did not clearly err by crediting this evidence.
5. The Propriety of a Leader and Organizer Offense Level Enhancement
Hare contends that the district court clearly erred when finding that he was a leader or organizer of a criminal activity involving at least five participants under U.S.S.G. § 3B1.1(a), which provides for a four level increase under these circumstances. Hare does not contest the district court’s findings that at least five people participated in Hare’s criminal activity. Instead, he argues that he was not a leader or organizer because Pinkston’s testimony at the sentencing hearing established that Hare sometimes took orders from others. The short answer to Hare’s claim is that “[t]here can, of course, be more than one person who qualifies as a leader or organizer of a criminal association or conspiracy.” U.S.S.G. § 3B1.1 n. 4. Further, the PSR and trial and sentencing testimony provided more than adequate support for the district court’s conclusion that Hare:
[R]ecruited accomplices, he set prices, controlled individuals, he used others, including Majors and Stanley as couriers, gave them instructions, participated in, and coauthored drug notes, paid them for travel, travel expenses, simply paid them for their services, [and] directed Mouton to use coded signals to communicate while conducting transactions.
Accordingly, the district court’s finding that Hare was a leader or organizer was not clearly erroneous.
Cf.
U.S.S.G. § 3B1.1 n. 4 (identifying the factors relevant to a leader or organizer finding);
United States v. Ayala,
6.The Propriety of an Offense Level Enhancement for Possession of a Firearm
Hare asserts that the district court clearly erred in assessing a two-levél enhancement under U.S.S.G. § 2D1.1(b)(1) for firearm possession because the Government failed to establish a nexus between the firearm and the drug trafficking offense. To prove the required connection between the weapon and the offense, the Government must show that the weapon was found in a location where drugs or drug paraphernalia were also stored or where part of the transaction occurred.
United States v. Flucas,
7. The District Court’s Denial of Hare’s Motion to Sever • •
Finally, Hare contends that the district court erred in denying his motion to sever. This Court reviews a district court’s denial of a motion to sever for abuse of discretion.
United States v. Moser,
B. Defendant Majors
1.. The Constitutionality of the Stop and Search of Major’s Automobile
On appeal, Majors argues that the marihuana found in his car should have been suppressed because Young’s decision to stop him for an alleged traffic violation was a pretext for conducting a search of the car for marihuana. This argument, however, is foreclosed by the Supreme Court’s decision in
Whren v. United States,
On appeal, this court accepts the trial court’s factual findings at a suppression hearing unless they are clearly erroneous or influenced by an incorrect view of the law.
United States v. Levine,
There is no question that Young had probable cause to stop Majors based on the traffic violations he had observed while following Majors.
Whren,
At the time of the stop, Young and Greer had a reasonable suspicion that Majors was involved in the delivery of marihuana. Young knew that Hare had agreed to provide Mouton fifty pounds of marihuana in Orange that day, that Mouton and Simmons had witnessed Majors deliver drugs on prior occasions, and that the Buick had been seen at Hare’s residence and was traveling on the highway leading to Orange.
See Alabama v. White,
Moreover, so long as Young was “diligently pursuing] a means of investigation that was likely to confirm or dispel [his] suspicions quickly, during which time it was necessary to detain the defendant,” the duration of Majors’ detention was reasonable under the Fourth Amendment.
Sharpe,
When combined with the information underlying their reasonable suspicion that Majors was transporting marihuana, the alert by Porter’s drug-sniffing dog provided Young and Greer with probable cause to search the trunk of the Buick.
United States v. Williams,
2. The Propriety of the District Court’s Denial of Majors’ Request for an Offense Level Reduction
Majors claims that he is entitled to a reduction in his offense level because the evidence adduced at trial and sentencing indicated that he was merely a courier for Hare. He also contends that he accepted responsibility for his actions in a timely manner. A district court’s findings that a defendant was not a minor participant in an offense and failed to accept responsibility for his actions will be upheld unless clearly erroneous.
United States v. Burian,
a. Minor Participant
In order to be a minor participant entitled to a reduction in offense level, Majors needed to show that he was “substantially less culpable than the average participant.”
Zuniga,
b. Acceptance of Responsibility
A finding that a defendant accepted responsibility after contesting his guilt at trial will be rare. U.S.S.G. § 3E1.1 n. 2. In this case, Majors did not even attempt to accept responsibility for his actions for a substantial period of time following his conviction. Instead, he told his probation officer that he did not have any knowledge of the marihuana found in the trunk of the Buick and that the DPS Troopers had altered the evidence to secure his conviction. This is not an acceptance of responsibility.
See United States v. Watson,
3. The Effect of the Sentencing Range Specified in the Indictment and Quoted by the Magistrate at Arraignment
Quoting from the caption above Count III of the superseding indictment, which stated that Majors faced a maximum sentence of five years imprisonment under 21 U.S.C. § 841(b)(1)(D), the magistrate conducting Majors’ arraignment incorrectly informed him that he faced up to five years imprisonment if convicted of violating 21 U.S.C. § 841(a)(1). 2 Majors claims that he was prejudiced by this incorrect statement of his potential sentence because it prevented him from making a fully informed decision to plead not guilty. Consequently, he asserts that his conviction and sentence should be vacated or, in the alternative, that he should receive a reduction in his offense level for accepting responsibility for his actions because he “probably” would have pleaded guilty had he been properly informed that he faced a potentially longer sentence.
We are unpersuaded that the magistrate’s incorrect statement of Major’s maximum sentence caused Majors any harm. To begin with, we note that Majors received a sentence of less than five years imprisonment after pleading not guilty and being convicted at trial. Further, had Majors pleaded guilty, he would have received an identical sentence under the guidelines, except that- he may have been able to secure a reduction for the acceptance of responsibility. Thus, Majors’ only real complaint is that the magistrate’s explanation of his maximum sentence cost him the opportunity to obtain a reduction in offense level by pleading guilty and accepting responsibility for his criminal actions.
Majors’ claim that he is entitled to a reduction in offense level because of the magistrate’s error at arraignment rings hollow for several reasons. To begin with, Majors does not even claim that he would have pleaded guilty but for the magistrate’s incorrect statement of his sentence. Instead, he merely suggests that he “probably” would have pleaded guilty had he known he faced a potentially lengthier period of incarceration. Of course, Majors’ inability to state with certainty that he would have pleaded guilty reflects the underlying implausibility of his claim. As Majors himself knows, a criminal defendant is less likely to plead guilty when he faces a longer sentence. Finally, Majors’ suggestion that he probably would have pleaded guilty in the face of a lengthier sentence is undermined by two additional facts: 1) that he did not make an effort to *429 plead guilty once he discovered the magistrate’s error; and 2) that he failed to accept responsibility for his actions in a timely manner even after his conviction. Thus, we conclude that under these circumstances, Majors has not established that he was prejudiced by the incorrect maximum sentence referred to in the caption of the indictment and quoted by the magistrate at arraignment. Accordingly, Majors is not entitled to a reversal or a reduction in his sentence. 3
III.
For the foregoing reasons, we AFFIRM.
Notes
. The district court dismissed the conspiracy' charge against Pinkston, but she was found guilty of possession with the intent to distribute marihuana.
. Although it is apparently the "custom” in the Beaumont Division of the Eastern District of Texas to include information regarding a defendant's punishment range in the caption of an indictment,- we can see no reason why this practice should be utilized when a defendant is accused of violating 21 U.S.C. § 841(a)(1). After all, proof of quantity is not an element of this offense.
See United States v. Montes,
. We have carefully reviewed Majors’ remaining claims and conclude that they are without merit.