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United States v. Gentry

United States Court of Appeals, Fifth Circuit

October 28, 2019

UNITED STATES OF AMERICA, Plaintiff-Appellee
v.
BILLY FRED GENTRY, JR., also known as Fred Gentry; NICOLE CYNTHIA HERRERA, also known as "Nikki Single"; BILLY RAY SKAGGS; CHARLES BEN BOUNDS, also known as Pretty Boy; TRAE SHORT, also known as "Twig"; KEVIN KYLE KILLOUGH, also known as Kilo; MICHAEL CLAY HEASLET, Defendants-Appellants

          Appeals from the United States District Court for the Northern District of Texas

          Before KING, HIGGINSON, and DUNCAN, Circuit Judges.

          STEPHEN A. HIGGINSON, Circuit Judge.

         This 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.

         General Factual Background

         Following 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.

         The 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.

         Thereafter, the district court sentenced each defendant separately, as follows:

• 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

         Each defendant filed a timely notice of appeal.

         Bounds

         Bounds 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

         The 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."

         One day 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.

         About a 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."

         The 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."

         After 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 make."

         On 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."

         On 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."[1] Trial proceeded without incident between Danielson and Bounds.

         At 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 ("Guidelines") range.

         II. Analysis

         A. Denial of Requests for Substitute Counsel

         "In 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)).

         1. Conflict of Interest

         "[A] 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.

         Even 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 did.

         The 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.

         2. Breakdown in Communication

         "The 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.

         Even 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."

         For 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.

         B. Application of Obstruction-of-Justice Sentence Enhancement

         Section 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.

         "A 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).

         This 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).

         The 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 constitutional right."

         In this 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.

         Herrera

         Herrera appeals the district court's denial of her motion to suppress evidence obtained from a search of two cell phones found in her possession.[2]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.

         I. Summary of Relevant Facts and Proceedings

         In 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.

         On July 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 further states:

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.

         The search warrant application did not report that Sarah Kirkpatrick's boyfriend, Robert Everhart ("Everhart"), was arrested in June 2015.

         On June 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.

         II. Analysis

         "When 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).

         This 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 law.

          "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.

         The 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.

         The 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.

         Because 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.

         Heaslet and Herrera

         Heaslet 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 ...


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