Appeals from the United States District Court for the
Northern District of Texas
KING, HIGGINSON, and DUNCAN, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge.
case involves a direct criminal appeal by seven defendants
from a jury trial that resulted in each defendant's
conviction on a single count: conspiracy to possess with
intent to distribute 50 grams or more of methamphetamine
("meth"). The defendants-Charles Ben Bounds, aka
"Pretty Boy" ("Bounds"), Nicole Cynthia
Herrera, aka "Nikki Single" ("Herrera"),
Michael Clay Heaslet ("Heaslet"), Billy Ray Skaggs
("Skaggs"), Kevin Kyle Killough, aka
"Kilo" ("Killough"), Billy Fred Gentry,
Jr., aka Fred Gentry ("Gentry"), and Trae Short aka
"Twig" ("Short")-each appeal a distinct
set of issues ranging from pretrial rulings to sentencing
decisions. We hold that the district court erred in
calculating the quantity of drugs attributable to Killough at
sentencing. We AFFIRM on all other issues. We therefore
VACATE Killough's sentence and REMAND to the district
court for resentencing.
the government's third superseding indictment, a grand
jury in the Northern District of Texas returned a true bill
charging all seven defendants with one count: violation of 21
U.S.C. § 846, conspiracy to possess with intent to
distribute meth. Although not all of the defendants were
members of the Aryan Brotherhood of Texas, trial evidence
connected the conspiracy to that group.
case proceeded to a jury trial, which was held over four days
from August 29 through September 1, 2016. Various cooperating
witnesses testified about their own roles in the conspiracy
as well as the defendants' roles. The government also
introduced testimony from local law enforcement officers and
case agents from the Drug Enforcement Administration
("DEA") and the Department of Homeland Security
("Homeland Security"). The jury found all seven
defendants guilty of the single count in the indictment.
the district court sentenced each defendant separately, as
• Bounds: 360 months imprisonment
• Herrera: 300 months imprisonment
• Heaslet: life imprisonment
• Skaggs: 300 months imprisonment
• Killough: life imprisonment
• Gentry: 360 months imprisonment
• Short: life imprisonment
defendant filed a timely notice of appeal.
argues that the district court erred in denying his motions
to substitute counsel and his attorney's motions to
withdraw because: (1) his attorney had an irreconcilable
conflict of interest, and (2) there had been a complete
breakdown in communication. Bounds asserts both that these
errors violated his Sixth Amendment rights and amounted to an
abuse of discretion. Bounds also appeals the district
court's application of a two-level obstruction-of-justice
sentence enhancement under U.S.S.G. § 3C1.1. We AFFIRM.
I. Summary of Relevant Facts and Proceedings
district court appointed Mark Danielson
("Danielson") to represent Bounds on April 12,
2016. On June 13, Bounds filed a pro se motion entitled,
"Motion Amicus Curiae Adversary," which alleged
that his counsel was ineffective. The district court issued a
written order requiring Danielson to meet with Bounds and
attempt to resolve their differences. The order advised,
"Often what appear to be irreconcilable differences
between a defendant and appointed counsel . . . are nothing
more than misunderstandings that can readily be resolved by
frank and open discussions."
after Danielson and Bounds met, Bounds filed another motion
entitled, "Defendants Motion to Dismiss Counsel."
This motion complained that Danielson was filing motions
without Bounds's permission, expressed Bounds's
desire to obtain a full copy of his discovery, and stated
that Bounds could not come to an understanding with
Danielson. The district court set a hearing for July 1. At
the hearing, the district court asked Bounds if it was still
his desire to discharge Danielson, and Bounds said no. Bounds
said he had changed his mind and the disagreement was based
on a misunderstanding. Danielson agreed that he and Bounds
could continue to work together.
month later, on July 25, Danielson filed a motion to
withdraw. The motion explained that "[a]t the most
recent attorney-client conference on July 15, 2016 the
defendant refused to discuss trial preparation issues with
counsel, instead resuming his complaints and accusing counsel
of being dishonest with him." According to the motion,
Bounds told Danielson that Bounds would "again complain
to the judge about [Danielson's] representation and ask
for new counsel," and then Bounds "stormed out of
the conference room." The motion concluded, "Based
on the foregoing, counsel believes that the attorney-client
relationship is irreparably damaged and that he has no
remaining option but to request to be relieved of further
representation of the defendant."
district court set a hearing on the motion for July 29, with
trial set to begin on August 22. At the hearing, Mr. Bounds
described his conflict with Danielson:
During counsel's appointment, my requests for discovery
[have] continuously been denied, and, therefore,
counsel's performance is deficient in this respect.
Therefore, I respectfully request that the Court orders
counsel to provide me with discovery in my case and all
documents that are non-work product or trial material, and a
continuance to allow me to review my case before I decide to
accept a plea or reject a plea.
Danielson responded that he had shown Mr. Bounds copies of
all the pertinent reports, but he could not give Bounds
copies to keep in the jail. Ultimately, the district court
concluded that the trial date was "too close" to
"change an attorney." The district court admonished
Bounds that Danielson was "an excellent attorney, and if
you give him a chance, he'll do you a good job. If you
don't give him a chance, he'll do the best he can,
but he could do a whole lot better job if you cooperate with
him and listen to what he says." The district court also
explained that "sometimes lawyers have to make judgments
because of the time elements and do what they think is best
for their client."
the hearing, Bounds sent Danielson a series of emails
detailing continued distrust and requesting that Danielson
take various legal actions including "file a motion to
[sever]" and a "motion of discovery."
Danielson responded at some length, explaining his reasons
for not filing the motions and clarifying that while the
decisions of whether to plead guilty and testify belonged to
Bounds, "other tactical decisions are for your lawyer to
August 26, three days before trial was scheduled to begin,
Danielson filed an "Ex-Parte Notice of Actual Conflict
of Interest and Second Motion to Withdraw." The motion
stated that "every conversation" Danielson had had
with Bounds "included at least one outburst by Mr.
Bounds complaining about [Danielson's]
representation" and that Bounds had recently sent a
"profanity-laced email" demanding a certain course
of action. Danielson also explained that he had recently
received notice from the Office of Disciplinary Counsel of
the State Bar of Texas that Bounds had filed a formal
grievance against him. The grievance had been dismissed, but
that dismissal was appealable. Danielson explained that he
felt he was now "essentially representing two parties
who are involved in a legal conflict with one another: Mr.
Bounds and myself."
August 29, the morning trial began, the district court held a
hearing on Danielson's second motion to withdraw. The
district court denied Danielson's motion to withdraw,
finding "no genuine or actual conflict" between
Danielson and Bounds. The district court found, instead, that
there was "a false, contrived conflict created by Bounds
with the desired intent to disrupt the judicial process in
this case." Trial proceeded without incident between
Danielson and Bounds.
sentencing, Danielson objected to a two-level sentence
enhancement for obstruction of justice under U.S.S.G. §
3C1.1 based on the conduct described above. The district
court overruled Danielson's objection, stating that he
had no reason to change his previous factual finding that
Bounds had attempted to "obstruct the orderly procedures
in this courtroom" and "interfere with the fair
administration of justice." The district court
ultimately sentenced Bounds to 360 months, at the bottom of
the 360-to-480-months United States Sentencing Guidelines
Denial of Requests for Substitute Counsel
all criminal prosecutions, the accused shall . . . have the
Assistance of Counsel for his defense." U.S. Const.
amend. VI. Sixth Amendment claims receive de novo review.
United States v. Simpson, 645 F.3d 300, 307 (5th
Cir. 2011). "[I]f [the Sixth] Amendment has not been
violated, the trial court's refusal to appoint substitute
counsel is reviewed for an abuse of discretion."
Id. at 307. "A district court abuses its
discretion if it bases its decision on an error of law or a
clearly erroneous assessment of the evidence."
United States v. Teuschler, 689 F.3d 397, 399 (5th
Cir. 2012) (quoting United States v. Castillo, 430
F.3d 230, 238-39 (5th Cir. 2005)).
Conflict of Interest
lawyer's conflict of interest may be so flagrant as to
constitute a violation of the Sixth Amendment."
Simpson, 645 F.3d at 310. Where an attorney's
alleged conflict of interest "springs not from multiple
client representation but from a conflict between the
attorney's personal interest and that of his
client," Strickland v. Washington, 466 U.S. 668
(1984), applies. Beets v. Scott, 65 F.3d 1258, 1260,
1272 (5th Cir. 1995). Under Strickland, a defendant
"must show that counsel's performance was
deficient" and "that the deficient performance
prejudiced the defense." 466 U.S. at 687.
assuming arguendo that Danielson's representation was
deficient in this case, Bounds has failed to show any
prejudice as a result. Bounds argues that the conflict itself
was prejudice, but this argument is foreclosed by
Beets. 65 F.3d at 1268 ("Strickland
did not say that prejudice is presumed whenever counsel
breaches the duty of loyalty."). In Beets, the
defendant's attorney collected a fee in the form of a
media rights contract, which "posed a serious potential
conflict of interest." Id. at 1274. Still, the
court determined that the Strickland prejudice prong
was unmet because the defendant "failed to show how [the
media rights contract] hindered [the attorney's]
presentation of her defense or prejudiced her by rendering
the result of her criminal prosecution fundamentally
unreliable." Id. Similarly, Bounds makes no
argument about how Danielson's representation harmed his
case and nothing in the trial transcript indicates that it
district court also did not abuse its discretion by denying
the motions for substitute counsel on the basis of a conflict
of interest. The district court held multiple hearings, heard
from all interested parties, and reasonably concluded-based
on the unique circumstances in this case-that Danielson could
continue to provide effective representation.
Breakdown in Communication
court is constitutionally required to provide substitute
counsel . . . if there is a . . . complete breakdown in
communication." United States v. Mitchell, 709
F.3d 436, 441-42 (5th Cir. 2013) (cleaned up). But
"reversal is inappropriate when the breakdown can be
attributed to the defendant's intransigence, and not to
the neglect of defense counsel or the trial court."
Simpson, 645 F.3d at 308.
assuming arguendo that there was a complete breakdown in
communication between Danielson and Bounds, there is no
evidence that communication difficulties could be attributed
to "neglect of defense counsel or the trial court."
Id. The district court explained to Bounds that
Danielson was "an excellent attorney, and if you give
him a chance, he'll do you a good job. If you don't
give him a chance, he'll do the best he can, but he could
do a whole lot better job if you cooperate with him and
listen to what he says." Additionally, Danielson met
with Bounds and responded to Bounds's communications
throughout the pendency of the case. Danielson responded with
specificity and professionalism to Bounds's emails and
clarified that while the decisions of whether to plead guilty
and testify belonged to Bounds, "other tactical
decisions are for your lawyer to make."
similar reasons, the district court did not abuse its
discretion by choosing not to substitute counsel based on the
alleged "complete breakdown in communication."
Mitchell, 709 F.3d at 441-42. Again, the district
court held multiple hearings and heard from all interested
parties, and we hold that it was reasonable to conclude that
Danielson could continue to effectively represent Bounds.
Application of Obstruction-of-Justice Sentence Enhancement
3C1.1 of the Guidelines directs a two-level increase to a
defendant's offense level if:
(1) the defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of
justice with respect to the investigation, prosecution, or
sentencing of the instant offense of conviction, and (2) the
obstructive conduct related to (A) the defendant's
offense of conviction and any relevant conduct; or (B) a
closely related offense.
finding of obstruction of justice [under U.S.S.G. §
3C1.1] is a factual finding that is reviewed for clear
error." United States v. Zamora-Salazar, 860
F.3d 826, 836 (5th Cir. 2017). "A factual finding is not
clearly erroneous if it is plausible in light of the record
as a whole." Id. (cleaned up). "In
determining whether an enhancement applies, a district court
is permitted to draw reasonable inferences from the facts,
and these inferences are fact-findings reviewed for clear
error as well." Id. (cleaned up).
court has never considered application of the
obstruction-of-justice sentence enhancement in a case
involving repetitive requests to substitute counsel. Other
circuits also have not directly addressed this issue.
However, the Third Circuit affirmed application of the
enhancement when the defendant-among other dishonest
actions-"lied about his reasons for wanting to change
counsel and the nature of his dispute with his original
counsel." United States v. Siddons, 660 F.3d
699, 708 (3d Cir. 2011).
lack of relevant caselaw is instructive. Requests to
substitute counsel alone do not amount to obstruction of
justice. A defendant's failure to work in harmony with
court-appointed counsel may occur for a number of reasons,
such as anxiety related to the heavy consequences of a
criminal conviction, differences in personality, and
incompatible communication styles. District courts must be
cautious not to punish defendants for their distrust of the
criminal justice system or their lack of knowledge related to
the procedures applied therein. District courts must also
avoid applying the obstruction-of-justice sentence
enhancement in a manner that will discourage defendants from
actively participating in their own defenses and asserting
their constitutional right to effective assistance of
counsel. Indeed, application note 2 to U.S.S.G. § 3C1.1
specifically cautions that "[t]his provision is not
intended to punish a defendant for the exercise of a
case, however, the district court did not base its decision
to apply the obstruction-of-justice sentence enhancement on
the defendant's repeated requests for substitute counsel.
Instead, the district court reiterated its factual finding
that Bounds intentionally obstructed justice by creating a
"false, contrived conflict" with his attorney. The
district court found that Bounds had taken
"extraordinary steps" in order to disrupt the
judicial proceedings. This factual finding was not made after
the fact at the sentencing hearing to justify application of
the sentence enhancement. Rather, the finding was initially
made at one of several hearings on the issue of whether to
substitute counsel, where the district court had the benefit
of assessing the credibility of all interested parties. Given
the deference afforded to factual findings, especially those
based on credibility determinations, we cannot say that the
district court clearly erred. Therefore, we AFFIRM.
appeals the district court's denial of her motion to
suppress evidence obtained from a search of two cell phones
found in her possession.She alleges that there was no probable
cause for a search warrant because the facts in the affidavit
supporting the search warrant were stale and the affidavit
supporting the search warrant lacked any evidence
establishing a nexus between her cell phones and ongoing drug
activity. She also argues that the good faith exception to
the exclusionary rule should not apply. We AFFIRM.
Summary of Relevant Facts and Proceedings
2015, the DEA and Homeland Security began investigating
allegations that Herrera had been distributing meth since
October 2014. On June 30, 2016, she was arrested. At the time
of her arrest, Herrera possessed two cell phones-an LG phone
and an Alcatel phone, which the government seized.
5, the government applied for a warrant to search the phones.
The search warrant application contained an affidavit from
Special Agent Perry Moore ("Moore"), a DEA Task
Force Officer with the Fort Worth Police Department. In it,
Agent Moore states that based on his knowledge, training, and
expertise in investigating narcotics offenses, "drug
traffickers utilize multiple cellular telephones to conduct
drug trafficking business," and "communicate via
traditional phone calls, and the sending/receiving of
electronic communications via multimedia message service
(MMS) and short message service (SMS) messages." He
In 2014, Agents/Officers received information that Nicole
HERRERA was currently trafficking multiple ounce quantities
of crystal methamphetamine in the Fort Worth, Texas area.
Co-conspirator Sarah Kirkpatrick identified Nicole HERRERA as
a methamphetamine distributor who she knew was supplying
multi ounce quantities of methamphetamine to her boyfriend,
another co-conspirator. Sarah Kirkpatrick stated that in 2015
on multiple occasions she traveled with her boyfriend to meet
Nicole HERRERA and receive four (4) ounce quantities of
methamphetamine from Nicole HERRERA. Co-conspirator Audra
BOWDEN confirmed that Nicole HERRERA was involved in
distributing methamphetamine. Audra BOWDEN confirmed that
based on her participation in the conspiracy and through
conversations that [she knew that] Sarah KIRKPATRICK and her
boyfriend were receiving methamphetamine from Nicole HERRERA.
search warrant application did not report that Sarah
Kirkpatrick's boyfriend, Robert Everhart
("Everhart"), was arrested in June 2015.
28, 2016, a magistrate judge approved the warrant. The
government searched Herrera's two phones. Prior to trial,
Herrera filed a motion to suppress the text messages
recovered from the phone. Her motion was denied after a
hearing, and the government admitted a two-page exhibit at
trial displaying some of the text messages retrieved from the
LG and Alcatel phones.
examining a district court's ruling on a motion to
suppress, we review questions of law de novo and factual
findings for clear error, viewing the evidence in the light
most favorable to the prevailing party." United
States v. Ganzer, 922 F.3d 579, 583 (5th Cir. 2019)
(cleaned up). "A factual finding is not clearly
erroneous as long as it is plausible in light of the record
as a whole." United States v. McKinnon, 681
F.3d 203, 207 (5th Cir. 2012) (quoting United States v.
Gomez, 623 F.3d 265, 268 (5th Cir. 2010)). In cases
where the government obtained a warrant, "[a]
magistrate's determination of probable cause is entitled
to great deference by reviewing courts." United
States v. Allen, 625 F.3d 830, 840 (5th Cir. 2010).
court considers probable cause questions in "two
stages." United States v. Payne, 341 F.3d 393,
399 (5th Cir. 2003). First, the court determines
"whether the good-faith exception to the exclusionary
rule . . . applies. If it does, [the court] need not reach
the question of probable cause for the warrant unless it
presents a novel question of law, resolution of which is
necessary to guide future action by law enforcement officers
and magistrates." Id. (cleaned up). Herrera
does not argue that this case presents a novel question of
"Under the good-faith exception, evidence obtained
during the execution of a warrant later determined to be
deficient is admissible nonetheless, so long as the executing
officers' reliance on the warrant was objectively
reasonable and in good faith." Id. Herrera
provides two reasons why the good faith exception should not
apply in this case: (1) Agent Moore's failure to inform
the court that Everhart was incarcerated in June 2015
evidenced recklessness in preparing the affidavit, and (2)
the warrant was based on an affidavit that was facially
deficient in terms of its particularity.
good-faith exception does not apply where the magistrate
judge "was misled by information in an affidavit that
the affiant knew was false or would have known except for
reckless disregard of the truth." Id. at
399-400 (quoting United States v. Webster, 960 F.2d
1301, 1307 n.4 (5th Cir. 1992)). Material omissions are
treated similarly. See United States v. Tomblin, 46
F.3d 1369, 1377 (5th Cir. 1995). Herrera asserts that
inclusion of Everhart's arrest in the affidavit was
necessary to alert the magistrate judge to the fact that
Herrera's alleged participation in drug trafficking
activities was not ongoing. However, nothing in the affidavit
suggests that Herrera continued selling drugs to Everhart at
any time after 2015. Therefore, the omission did not render
the affidavit misleading.
good-faith exception is also unavailable "where the
warrant is based on an affidavit so lacking in indicia of
probable cause as to render official belief in its existence
entirely unreasonable." Payne, 341 F.3d at
399-400 (quoting Webster, 960 F.2d at 1307 n.4).
"Bare bones affidavits typically contain wholly
conclusory statements, which lack the facts and circumstances
from which a magistrate can independently determine probable
cause." United States v. Pope, 467 F.3d 912,
920 (5th Cir. 2006) (cleaned up). The affidavit in this case
was not bare bones. It included facts and circumstances from
which the magistrate judge could have independently
determined that probable cause existed. Specifically, the
affidavit named two co-conspirator witnesses (Sarah
Kirkpatrick and Audra Bowden) who identified Herrera as
having sold a precise quantity (four ounces) of meth on
multiple occasions in a certain year, and Agent Moore
explained why his experience as a narcotics officer led him
to believe that Herrera's phones likely contained
evidence of that drug trafficking.
we find that application of the good faith exception is
appropriate in this case, we need not decide whether there
was probable cause for the warrant.
and Herrera jointly assert that the district court violated
their Sixth Amendment right of confrontation by allowing
witness Leslie Holliday ("Holliday") to invoke the
Fifth Amendment privilege against self-incrimination ...