United States v. Goodin

U
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              United States Court of Appeals
                   for the Fifth Circuit                            United States Court of Appeals
                                                                             Fifth Circuit

                                                                           FILED
                                                                    February 10, 2021
                                   No. 19-30923
                                                                      Lyle W. Cayce
                                                                           Clerk
   United States of America,

                                                             Plaintiff—Appellee,

                                       versus

   Thomas J. M. Goodin; Brittany S. Gix; Meko R. Walker,

                                                        Defendants—Appellants.


                  Appeal from the United States District Court
                     for the Western District of Louisiana
                           USDC No. 3:18-CR-154-1


   Before Jones, Smith, and Elrod, Circuit Judges.
   Edith H. Jones, Circuit Judge:*
          This is a consolidated appeal of three defendants who were found
   guilty of participating in the same or related drug and drug conspiracy
   offenses. Goodin sent a package containing methamphetamine to Gix and
   Walker, who were arrested shortly after police orchestrated a controlled
   delivery. Goodin was located and arrested a couple of months later after he


          *
            Pursuant to 5th Circuit Rule 47.5, the court has determined that this
   opinion should not be published and is not precedent except under the limited
   circumstances set forth in 5th Circuit Rule 47.5.4.
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                                    No. 19-30923


   was stopped by police for a traffic offense. Gix and Walker challenge the
   sufficiency of the evidence to convict them of two counts of conspiracy and
   attempt. Goodin challenges his detention following a traffic stop and his
   sentence as a career offender. Goodin’s detention following a traffic stop was
   supported by reasonable suspicion.        We AFFIRM the judgments of
   conviction and Goodin’s enhanced sentence.
                                BACKGROUND
                                 The Drug Drop
          On October 4, 2017, Thomas Goodin walked into a FedEx store in San
   Bernardino, California with a package wrapped in birthday wrapping paper.
   At the store clerk’s suggestion, Goodin placed the package in a FedEx box to
   protect the wrapping paper. He stated that the package was being shipped
   from “Tyrone Gix” in Loma Linda, California to a “Jordyn Gix” in Monroe,
   Louisiana. Goodin paid over $100 in cash to overnight ship the package,
   which he told the FedEx employee was a doll for his daughter’s birthday.

          The package was intercepted by a narcotics agent, Nick Oglesby, with
   the West Monroe (Louisiana) Police Department who was working at a
   FedEx facility in Monroe. A dog alerted to the presence of drugs and Oglesby
   secured a search warrant for the package. The package contained about one
   pound of methamphetamine.

          Oglesby re-wrapped the present and repacked the box, leaving a small
   amount of methamphetamine enclosed in the bundle, and police set up a
   controlled delivery. A police officer dressed as a FedEx delivery driver
   knocked on Brittany Gix’s door as other officers conducted surveillance, and




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   left the package at Gix’s apartment, as it specified. Shortly after delivery, Gix
   opened the apartment door, picked up the package, and returned inside.
   About 40 minutes later, agents saw Walker arrive at Gix’s apartment, go
   inside the apartment and quickly reemerge holding the re-wrapped package,
   no longer in a FedEx box. Agents arrested Walker when he got to his car.

          Police then searched Gix’s apartment and spoke with her. Officers
   found the FedEx box in a closet in her bedroom. Gix first claimed the package
   came from Tyrone Gix; then she said it came from Tyrone Johnson, who she
   claimed was her uncle. She said Tyrone Johnson was sending the package to
   his own daughter even though the package was addressed to Jordyn Gix.
   When police asked why her uncle would send a present for his daughter to
   Gix instead of directly to his own daughter, Gix said they were “really close”
   and that Gix “would do anything for Tyrone.” Gix said that she had removed
   the birthday present from the FedEx box because she was “just being nosey.”
   Gix also admitted that she had called FedEx to ascertain the status of the
   package’s delivery. Gix allowed police to search her phone, which revealed
   extensive communications with a contact labeled “T Notes,” who was in fact
   Goodin. Goodin and Gix were in a romantic relationship.

          Both Gix and Walker had communicated extensively via text message
   and phone with Goodin about the FedEx shipment. the day Goodin shipped
   the package, Goodin texted Gix asking for an address and Gix sent him her
   apartment address. They then had the following exchange via text message:
   Goodin: “Who’s going to be there to get it?”; Gix: “I thought you said I was
   picking it up?!”; Goodin: “Oh.”




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         On October 5, the supposed delivery date, their communications
   continued. Around 10 am, Goodin texted Gix the FedEx receipt and manifest
   for the shipment from California to her apartment. A minute later, Gix
   responded with three thumbs-up emojis. One minute later, the two started
   an eight minute phone call. About an hour later, Gix sent Goodin a
   screenshot from FedEx’s online tracking page corresponding to the package
   that Goodin had sent. In response, Goodin asked Gix to “[k]eep your eyes
   open.”   At 2:53 pm, Goodin inquired, “[i]f you know I’m expecting
   something, regardless, why would you allow someone to be . . . [a]round all
   day?” Then, around 3:00pm, Gix texted angrily and warned Goodin that she
   would not accept “anything else at this address.” Goodin then called Gix at
   3:28 pm and spoke with her for about two minutes.

         The package was delivered outside Gix’s apartment at 3:40 pm. At
   4:01 pm, Gix texted Goodin a package emoji and thumbs-up emoji. Gix called
   Goodin at 4:28 pm, after Walker had already retrieved the package, and spoke
   with Goodin for 16 seconds. A minute or two later, law enforcement agents
   entered and began searching Gix’s apartment. Goodin tried to reach Gix by
   phone multiple times but she didn’t answer because police were in her
   apartment.

         Goodin was also in frequent communication with Walker, especially
   on the day of the drug drop. Walker had entered Goodin in his contacts under
   the name “Trouble.” On August 28, 2017, Goodin texted Walker his new
   phone number. On October 5, they spoke on the phone for about five minutes
   starting at 2:56 pm, roughly 45 minutes before the package was dropped off




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   at Gix’s apartment. Eleven minutes later, Walker and Goodin spoke on the
   phone for a minute and a half. At 3:10 pm, Goodin texted Walker the same
   receipt and sender/receiver manifest from the FedEx shipment that Gix had
   received. Goodin called Walker at 4:36 pm, but Walker was already in police
   custody.

              Goodin Is Apprehended After an Unrelated Traffic Stop.

          Shortly after midnight about seven weeks after the controlled delivery
   took place, Goodin was stopped on Interstate 20 near Monroe, Louisiana
   because his car was swerving.

          In handling the traffic stop, State Trooper Dickerson’s suspicions
   were aroused, according to the government, by “a number of aspects of the
   traffic stop—the absence of a driver’s license; that the car’s registration was
   in someone else’s name and suspended; the criminal history associated with
   the Louisiana identification card in the name of Malchia Desha Douzart that
   the driver provided; the fact the driver (Goodin) claimed to reside in
   California but had a Louisiana ID; nervous behavior. . . .” Dickerson called
   for a drug sniffing dog, which arrived about 15 to 20 minutes later and alerted
   on the car. Armed with probable cause to search the car, Trooper Dickerson
   testified that he immediately smelled marijuana upon opening the car doors.
   When officers opened the trunk, they saw two wrapped gifts. As the troopers
   began unwrapping the boxes, the driver complained they were gifts for his
   mother and he did not want the officers to mess with them. Nonetheless, the
   officers unwrapped the “gifts” and found methamphetamine hidden inside
   a candle, a hammer to break open the candle, and disguised tea bottles with




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   phencyclidine (“PCP”) inside them. After arrest, Goodin’s real identity was
   discovered from a driver’s license, and the officers found $1,495 in cash in
   his wallet. Dickerson then located an outstanding arrest warrant based on
   Goodin’s involvement in the October 5, 2017 methamphetamine distribution
   involving Gix and Walker.

                                 The Convictions

          After a jury trial, Walker and Gix were convicted of the conspiracy and
   of attempted possession with intent to distribute methamphetamine, in
   violation of 21 U.S.C. §§ 841(a)(1) and 846.

          Goodin was convicted of conspiracy to distribute methamphetamine,
   in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count 1); possession with
   intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1)
   (Count 3); and possession with intent to distribute PCP, in violation of
   21 U.S.C. § 841(a)(1) (Count 4).

          Gix was sentenced to 120 months imprisonment, Walker to 144
   months, and Goodin to 504 months.

                                 DISCUSSION

   I. There is sufficient evidence to sustain Gix’s and Walker’s convictions.
          Gix and Walker each assert the evidence is legally insufficient, and
   each essentially attempts to refute the knowledge element of the convictions.

          This court reviews sufficiency challenges de novo, construing the
   evidence in the light most favorable to the prevailing party (in this case the




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   government). A conviction must be affirmed if “any rational trier of fact
   could have found the essential elements of the crime beyond a reasonable
   doubt.” United States v. Gonzalez, 

907 F.3d 869

, 873 (5th Cir. 2018) (per
   curiam) (quoting Jackson v. Virginia, 

443 U.S. 307

, 319, 

99 S. Ct. 2781

, 2789
   (1979)). All “weight and credibility assessments lie within the exclusive
   province of the jury.” United States v. Vinagre-Hernandez, 

925 F.3d 761

, 764
   (5th Cir. 2019) (quoting United States v. Barakett, 

994 F.2d 1107

, 1110 (5th
   Cir. 1993)) cert. denied, 

140 S. Ct. 897

(2020).

          Gix and Walker were both convicted on two counts: conspiracy to
   distribute methamphetamine and attempted possession with intent to
   distribute. A conviction for conspiracy to distribute 50 grams or more of
   methamphetamine under 21 U.S.C. § 846 requires the government to prove:

   (1) an agreement between two or more individuals to violate federal drug
   laws; (2) the defendant’s knowledge of that agreement; and (3) the
   defendant’s voluntary participation in that agreement. See United States v.
   Brown, 

553 F.3d 768

, 781 (5th Cir. 2008) (citing United States v. Aguilar,
   

503 F.3d 431

, 435 (5th Cir. 2007)). A conviction for attempted possession of
   a controlled substance requires the government to prove that the defendant:
   (1) acted with the culpability required for the substantive offense, and
   (2) took a “substantial step” toward committing that crime. United States v.
   Redd, 

355 F.3d 866

, 872–73 (5th Cir. 2003). The underlying substantive
   offense, in turn, requires proof that: (1) the defendant knowingly possessed
   a controlled substance; (2) the substance was in fact a controlled substance;
   and (3) the defendant intended to distribute the substance. See Vinagre-




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Hernandez, 925 F.3d at 764

(citing United States v. DeLeon, 

247 F.3d 593

, 596
   (5th Cir. 2001)). And for each count, the government had to prove that the
   package contained at least 50 grams of the illegal substance.

          “‘The elements of the conspiracy may be established by
   circumstantial evidence’ and ‘may be inferred from the development and
   collocation of circumstances.’” United States v. Mendoza, 

226 F.3d 340

, 343
   (5th Cir. 2000) (internal citations omitted) (internal quotation marks
   omitted).     Such evidence can include “circumstances evidencing a
   consciousness of guilt on the part of the defendant” and “inconsistent
   stories.” United States v. Gibson, 

963 F.2d 708

, 710–11 (5th Cir. 1992)
   (quoting United States v. Richardson, 

848 F.2d 509

, 513 (5th Cir. 1988)).
   Proof of “mere presence of the defendant at a scene of criminal activity and
   his association with the other defendants is insufficient to support a criminal
   conviction.” United States v. Paul, 

142 F.3d 836

, 840 (5th Cir. 1998) (citing
   United States v. Carrillo–Morales, 

27 F.3d 1054

, 1065 (5th Cir. 1994)).
   However, “[a] jury may find knowledgeable, voluntary participation from
   presence when the presence is such that it would be unreasonable for anyone
   other than a knowledgeable participant to be present.”

Id. (quoting United States

v. Cruz–Valdez, 

773 F.2d 1541

, 1546 (11th Cir. 1985) (en banc)).

          In United States v. Lechuga, this court found that circumstantial
   evidence, such as close monitoring of drug transactions and having co-
   conspirator’s phone numbers written down, was sufficient to uphold the
   conspiracy convictions. 

888 F.2d 1472

, 1479 (5th Cir. 1989). The Lechuga
   court noted “[t]he jury may infer any element of this offense from




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   circumstantial evidence. . . . [A]n agreement may be inferred from concert of
   action, [v]oluntary participation may be inferred from a collocation of
   circumstances, and [k]nowledge may be inferred from surrounding
   circumstances.”

Id. at 1476–77

(internal quotation marks and citations
   omitted) (quoting United States v. Espinoza–Seanez, 

862 F.2d 526

, 537 (5th
   Cir. 1988)); see also United States v. Zamora-Salazar, 

860 F.3d 826

, 833 (5th
   Cir. 2017) (citing 

Lechuga, 888 F.2d at 1476

–77) (the defendant’s showing up
   during a set timeframe contributed to the sufficiency of evidence.)

          Gix contends that the “evidence is just as consistent with Gix[’s]
   believing this box contained a gift as it was with her knowing it contained a
   pound of methamphetamine.”         But the record does not support that
   assertion, and even if it did, the en banc court has rejected the “equipoise
   rule” that required a reversal where the evidence is equally consistent with
   guilt or innocence. See United States v. Vargas-Ocampo, 

747 F.3d 299

, 301
   (5th Cir. 2014) (en banc).

          Here, as the foregoing review of the evidence shows, there is
   substantial circumstantial evidence to support Gix’s convictions.         In
   addition, and contrary to her argument in brief, if she thought the package
   was really just a birthday gift, the extensive planning and worry about who
   would be there when the package arrived would not make sense. And Gix
   likely wouldn’t have objected to playing a small role in her boyfriend’s
   delivery of a doll to his daughter. But she did object, telling Goodin that
   “Look, once I get all this [s***] this time, don’t send anything else to this
   address,” and she “ain’t doing [s***] else for [Goodin.]” Finally, her




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   evasive behavior and contradictory stories when confronted by law
   enforcement strongly suggest she knew the package contained contraband.

          Gix also argues that even if she knew that the package contained drugs,
   she didn’t know that it contained more than 50 grams of methamphetamine.
   But knowledge of the specific weight of the drugs is not an element of either
   crime. See United States v. Vinagre-Hernandez, 

925 F.3d 761

, 764 (5th Cir.
   2019), cert. denied, 

140 S. Ct. 897

(2020) (possession); United States v. Brown,
   

553 F.3d 768

, 781 (5th Cir. 2008) (conspiracy). Gix has cited no caselaw to
   the contrary.    And the government proved that the original package
   contained over 450 grams of methamphetamine.

          Walker similarly challenges the knowledge element. He asserts that
   there is no evidence that he knew what was in the package, or that it contained
   meth, and that he did not knowingly enter into a conspiracy.               The
   circumstantial evidence against Walker may be less compelling than the
   evidence against Gix. But the jury was entitled to infer guilt from the flurry
   of texts and phone calls between Goodin and Walker on the date Walker was
   to pick up the package, together with Goodin’s sending the receipt and
   manifest to Walker as he had to Gix.

          Responding to the factual similarities between his case and Lechuga,
   Walker distinguishes Lechuga because the co-defendants there were
   physically present together. But it is not obvious why an in-person “nod”
   and conversation is more compelling than multiple communications by
   phone. Walker’s extensive conversations with Goodin show he was closely
   monitoring the delivery. Walker also notes that in United States v. Paul the




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                                    No. 19-30923


   court found that there was sufficient evidence of a drug conspiracy when
   there were taped telephone conversations of the defendant talking about
   arranging delivery of cocaine. But Paul does not suggest that a recording is
   required, and in fact, the court quoted Lechuga as it reiterated that the jury
   may rely on circumstantial evidence. See United States v. 

Paul, 142 F.3d at 841

.

          As the government notes, whether Walker knew the package
   contained illegal drugs is linked with the preceding analysis. Since Walker
   knowingly entered into a conspiracy to distribute a controlled substance, we
   are compelled to find Walker similarly knew that the package contained
   methamphetamine, which is the extent of Walker’s appeal on the attempted
   possession charge.

   II. There was reasonable suspicion sufficient to detain Goodin for 15 to
      20 minutes while waiting for a drug dog to arrive.
          As noted above, Goodin was pulled over in an unrelated traffic stop
   almost two months after the controlled delivery. When Dickerson asked
   whether Goodin was tired or impaired, Goodin said that he was tired because
   he had been driving from San Bernardino, California, and made a stop in
   Dallas to drop off his girlfriend. Goodin said he had left California that
   morning; when Dickerson consulted Google maps, he determined that his
   itinerary in a single day was “pretty much” “impossible.” Dickerson stated
   that Goodin appeared nervous. Goodin produced a fake Louisiana ID (with
   the name Malchia Desha Douzart). His car was registered in California, and
   the plates were suspended. He did not have a driver’s license, but told the




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   officer that, although he lived in California, he thought it would be helpful to
   have a Louisiana ID for when he came to visit family in Louisiana.

          While Goodin concedes that the initial traffic stop was legal, he asserts
   that his detention for 15 to 20 minutes while police waited for a drug dog to
   arrive was an illegal seizure because police did not have reasonable suspicion
   of additional criminal activity. See Rodriguez v. United States, 

575 U.S. 348

,
   354, 

135 S. Ct. 1609

, 1614 (2015) (noting officers can conduct certain
   unrelated checks during an otherwise lawful traffic stop but cannot prolong
   the stop absent reasonable suspicion). Goodin asserts that because the
   prolonged detention was unconstitutional, the evidence seized from his car
   in the resulting search should be suppressed.

          When reviewing a district court’s suppression ruling, this court
   considers questions of law de novo. United States v. Turner, 

839 F.3d 429

, 432
   (5th Cir. 2016) (citing United States v. Hearn, 

563 F.3d 95

, 101 (5th Cir.
   2009)). The court considers evidence in “in the light most favorable to the
   prevailing party.”

Id. (citing United States

v. Hernandez, 

279 F.3d 302

, 306
   (5th Cir. 2002)). This court may affirm a suppression ruling “based on any
   rationale supported by the record.”

Id. (citing United States

v. Waldrop,
   

404 F.3d 365

, 368 (5th Cir. 2005)). The relevant record on appeal includes
   “evidence admitted at the suppression hearing and at trial.” United States v.
   Zavala, 

541 F.3d 562

, 568 (5th Cir. 2008).

          As the Fourth Amendment has been construed, a traffic stop may
   “last no longer than is necessary to effectuate [its] purpose,” and the
   Supreme Court held in Rodriguez that even a delay of six to eight minutes




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   following a traffic stop where the driver is detained is a violation of the
   defendant’s Fourth Amendment rights; the detention is not merely “de
   minimis” when the detention is not supported by reasonable suspicion
   garnered before the traffic stop concluded. 

Rodriguez, 575 U.S. at 356

, 

358, 135 S. Ct. at 1615

, 1616. “[R]easonable suspicion exists when the officer can
   point to specific and articulable facts which, taken together with rational
   inferences from those facts, reasonably warrant the search and seizure.”
   United States v. Zuniga, 

860 F.3d 276

, 281 (5th Cir. 2017) (citing United States
   v. Santiago, 

310 F.3d 336

, 340 (5th Cir. 2002)). A court considers the
   “totality of the circumstances” to determine whether an officer has a
   “‘particularized and objective basis’ for suspecting legal wrongdoing.”
   United States v. Arvizu, 

534 U.S. 266

, 273, 

122 S. Ct. 744

, 750 (2002)
   (quoting United States v. Cortez, 

449 U.S. 411

, 417, 

101 S. Ct. 690

, 695
   (1981)). The officer’s subjective motivations are irrelevant. United States v.
   Lopez-Moreno, 

420 F.3d 420

, 432 (5th Cir. 2005) (citing Devenpeck v. Alford,
   

543 U.S. 146

, 

125 S. Ct. 588

, 594 (2004)).
          The government produced an extensive list of specific articulable facts
   that Dickerson asserts amounted to reasonable suspicion. In addition to the
   anomalies cited above, some of these listed facts include:
      • The traffic stop occurred on Interstate 20, a “corridor for . . .
        traveling criminals.”
      • Goodin immediately exited his vehicle upon being pulled over,
        an action that made Dickerson’s “hair stand up” because it
        presented safety concerns and suggested Goodin was trying to
        keep him away from the car.
      • Goodin seemed nervous throughout the interaction, including
        by frantically alternating between sitting on the ground and




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          standing while Dickerson was running checks in his police
          cruiser.
      •   After telling Dickerson that he had lived in California for his
          whole life, he said he had a Louisiana ID because he thought
          “it would be good” for when he came to visit family, an answer
          Dickerson found “odd.”
      •   The height on the Louisiana ID listed Goodin as 5’10” but
          Dickerson, who was that height, observed that Goodin was
          noticeably taller than he was.
      •   The vehicle’s California registration was suspended and not in
          the name of the individual on the Louisiana ID that Goodin had
          given Dickerson (or in Goodin’s name).
      •   A criminal history check for Malchia Desha Douzart, the ID
          Goodin had given Dickerson, revealed an extensive criminal
          history that included 10–15 arrests for offenses such as battery,
          burglary, and drug distribution.
      •   When Dickerson asked Goodin about “his”—in fact,
          Douzart’s—criminal history, Goodin said he had been arrested
          “for a few bar fights,” an answer entirely inconsistent with the
          criminal history Dickerson had just viewed.
          At the suppression hearing, the magistrate judge concluded that these
   facts, while “individually susceptible to innocent explanation, taken together
   . . . support reasonable suspicion of criminal activity.” The magistrate judge
   focused on Goodin’s immediate exit from the vehicle, the discrepancy
   between the height listed on the Louisiana ID and Goodin’s actual height (a
   five inch discrepancy), and the “unreasonable explanation” Goodin gave for
   having a Louisiana ID in the first place. The district court adopted the
   magistrate judge’s findings.
          Goodin attempts to poke holes in some of these individual factors. He
   argues, for example, that nervousness is common in traffic stops or that he
   wasn’t actually nervous. Goodin also says that because the officer inquired




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                                     No. 19-30923


   about his criminal history status after issuing the ticket, the traffic stop had
   concluded and had thus been extended impermissibly. Although Goodin
   relies on an unpublished Fifth Circuit case that an out-of-state driver’s
   license and license plates are insufficient “to create reasonable suspicion of
   criminal activity, especially where . . . the defendant was detained along an
   interstate highway,” here, the license was only one of a long list of factors the
   officer relied on in developing reasonable suspicion. See United States v.
   Davis, 620 F. App’x. 295, 298 (5th Cir. 2015). Goodin also points out that
   Dickerson articulated only some of his reasons for asking for the drug dog
   when he called in for the dog.
          Goodin’s arguments are unconvincing. First, as the trial court found,
   while some of these factors may be susceptible to innocent explanations, the
   combination of factors amounted to reasonable suspicion. Second, asking
   about Goodin’s criminal history is a lawful component of a traffic stop that
   protects officer safety. See 

Rodriguez, 575 U.S. at 356

, 

135 S. Ct. 1609

, 1616-
   17. Third, the officer’s suspicion about the Louisiana ID was not just related
   to Goodin’s living out of state, it was also that Goodin’s height did not match
   the height on the proffered (but fraudulent)

ID. Third, there is

no blanket
   rule that officers, when pressed for time while calling in support, need to
   articulate all of the reasons they are asking for that support or a drug dog.
          Therefore, the officer had reasonable suspicion to detain Goodin
   pending the arrival of a drug dog, and the motion to suppress was properly
   denied.




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   III. The district court correctly concluded that Goodin’s drug
       conspiracy conviction in this case constituted a “controlled
       substance offense” under the Guidelines.
          Goodin’s Presentence Report (PSR) recommended an Advisory
   Guidelines range of 360 months to life imprisonment, partially based on a
   recommendation that he be sentenced as a career offender under
   Section 4B1.1 of the US Sentencing Guidelines. Section 4B1.1 enhances the
   offense level and criminal history category of a defendant with “at least two
   prior felony convictions of either a crime of violence or a controlled substance
   offense” who, in relevant part, is convicted of “a controlled substance
   offense.” U.S.S.G. § 4B1.1(a). A “controlled substance offense” is “an
   offense under federal or state law, punishable by imprisonment for a term
   exceeding one year, that prohibits the manufacture, import, export,
   distribution, or dispensing of a controlled substance . . . or the possession of
   a controlled substance . . . with intent to manufacture, import, export,
   distribute, or dispense.” U.S.S.G. § 4B1.2(b).

          A district court’s application of the Guidelines is reviewed de novo,
   while its factual findings are reviewed for clear error. United States v.
   Cisneros–Gutierrez, 

517 F.3d 751

, 764 (5th Cir. 2008) (citing United States v.
   Juarez Duarte, 

513 F.3d 204

, 208 (5th Cir. 2008)).

          Goodin claims that his conviction for a drug conspiracy does not fall
   within this expansive definition of a “controlled substance offense.” This
   argument fails for two independent reasons. Initially, the issue whether a
   conspiracy is a “controlled substance offense” does not even matter, because
   Goodin has not appealed his conviction for two other substantive “controlled




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Case: 19-30923     Document: 00515740961           Page: 17   Date Filed: 02/10/2021




                                    No. 19-30923


   substance offenses” in this case. As the PSR notes, the other two convictions
   (Count Three and Count Four) separately qualify:

          Count Three indicated he was found guilty of knowingly and
          intentionally possessing with the intent to distribute fifty (50)
          grams or more of methamphetamine and in Count Four, he was
          found guilty of knowingly and intentionally possessing with the
          intent to distribute ten (10) grams or more of phencyclidine
          (PCP) . . . Counts One, Three, and Four, all satisfy the
          definition of controlled substance offense.
   Goodin has not argued otherwise.
          But even if his conspiracy offense was his only additional offense, the
   district court correctly held that we are bound by Supreme Court precedent,
   Stinson v. United States, 

508 U.S. 36

, 

113 S. Ct. 1913

(1993), and our circuit
   precedent, United States v. Lightbourn, 

115 F.3d 291

(5th Cir. 1997), finding
   that a guideline that became effective in 1995 (Amendment 528) authorized
   the Sentencing Commission to add inchoate offenses such as conspiracy to
   the “controlled substance offense” definition in U.S.S.G. § 4B1.2.
   Application Note 1 to Section 4B1.2 includes conspiracy within the
   “controlled substance offense” definition. Goodin’s reliance on United
   States v. Bellazerius is unavailing, because that case involved a previous, and
   superseded, version of the Section 4B1.1 commentary. 

Lightbourn, 115 F.3d at 293

, properly held that Bellazerius was abrogated.        United States v.
   Bellazerius, 

24 F.3d 698

(5th Cir. 1994).

          Goodin largely relies on cases from other circuits that interpret these
   provisions differently, but these conflict with Lightbourn, which found that
   drug conspiracy does qualify as a “controlled substance offense” for




                                         17
Case: 19-30923        Document: 00515740961              Page: 18       Date Filed: 02/10/2021




                                          No. 19-30923


   purposes of Section 

4B1.1. 115 F.3d at 293

. 1 Goodin’s conspiracy conviction
   is a controlled substance offense under the Sentencing Guidelines, and his
   challenge to this enhancement fails.

                                      CONCLUSION
           For the foregoing reasons, the convictions of all three defendants are
   AFFIRMED, as is Goodin’s sentence.




           1
             We acknowledge the circuit split that this issue has presented, and particularly
   note the Third Circuit’s en banc decision in United States v. Nasir, finding that “inchoate
   crimes are not included in the definition of ‘controlled substance offenses’ given in section
   4B1.2(b) of the sentencing guidelines.” 

982 F.3d 144

, 160 (3d Cir. 2020). But see United
   States v. Lange, 

862 F.3d 1290

, 1295 (11th Cir. 2017) (noting that Application Note 1 to
   U.S.S.G. § 4B1.2 directs courts not to “construe ‘prohibit’ too narrowly” such that
   “‘[c]ontrolled substance offense’ cannot mean only offenses that forbid conduct outright,
   but must also include related inchoate offenses that aim toward that conduct”).
           The Third Circuit changed its position on § 4B1.2 after the recent Supreme Court
   decision, Kisor v. Wilkie, in which the Court “cut back on what had been understood to be
   uncritical and broad deference to agency interpretations of regulations and explained that
   Auer, or Seminole Rock, deference should only be applied when a regulation is genuinely
   ambiguous.” 

Nasir, 982 F.3d at 158

. (citing Kisor v. Wilkie, 

139 S. Ct. 2400

, 2414–15
   (2019)). The court found that “in light of Kisor’s limitations on deference to administrative
   agencies” it is no longer proper to give the commentary “independent legal force” and that
   “separation-of-powers concerns advise against any interpretation of the commentary that
   expands the substantive law set forth in the guidelines themselves.”

Id. at 159–60.

If
   Goodin did not have the other two qualifying offenses and we were not constrained by
   Lightbourn, our panel would be inclined to agree with the Third Circuit.




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