United States v. Everett

Court Case Details
Court Case Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 99-41238

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UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

BRUCE GALEN EVERETT,

Defendant - Appellant

_________________________________________________________________

Appeal from the United States District Court

for the Eastern District of Texas

(4:98-CR-80-ALL)

_________________________________________________________________

November 2, 2000

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Before KING, Chief Judge, PARKER, Circuit Judge, and KAZEN,

District Judge.

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PER CURIAM:

Bruce Galen Everett was convicted on two counts of being a

felon in possession of ammunition that had been shipped in

interstate commerce in violation of 18 U.S.C. § 922(g)(1) (2000).

The district court enhanced Everett’s sentence under § 4B1.4 of

*

District Judge of the Southern District of Texas,

sitting by designation.

**

Pursuant to 5

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R.

47.5, the court has determined

TH

IR

that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5

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R.

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47.5.4.

the U.S. Sentencing Guidelines, finding that he was an “armed

career criminal.” See U.S. S

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§ 4B1.4

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(1998). Consequently, Everett was sentenced to 188 months in

prison on each count, to run concurrently. Everett timely

appealed both the conviction and the sentence. For the following

reasons, we AFFIRM.

I. FACTS AND PROCEDURAL HISTORY

On October 23, 1998, the Plano Police Department received a

domestic violence call at Everett’s residence. Several Plano

police officers were dispatched to Everett’s home, and when they

arrived, they were met by a visibly upset Joanna Everett,

Everett’s wife. During the ensuing conversation with Mrs.

Everett, she revealed that she feared her husband was “reverting

to his old ways” and was acting very paranoid and violent.

Moreover, Mrs. Everett related to the officers that Everett kept

a pistol and ammunition hidden in the home. While the officers

were speaking to Mrs. Everett, Everett exited the house. Upon

investigating the domestic disturbance, the police arrested

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Everett for family violence.

After Everett was transported to the Plano Police

Department, Mrs. Everett offered to take Officer Jeff Rich into

the home and help him look for the pistol. Mrs. Everett led Rich

to the closet of the master bedroom, where Rich discovered an

1

Mrs. Everett subsequently decided not to press charges

against Everett and bonded him out of jail.

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empty pistol pouch and a pellet pistol. Mrs. Everett informed

Rich that her husband had another handgun in addition to the

pellet pistol. A further search, however, failed to reveal any

firearms.

As another officer continued to search the closet, Mrs.

Everett directed Rich to a chest of drawers in the master

bedroom. Mrs. Everett identified the chest of drawers as her

husband’s. The chest of drawers was filled with male clothing,

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and auto parts were on top of it.

In the top drawer, which Mrs.

Everett identified as “his drawer,” the officers found several

pocket knives and a number of loose rounds of ammunition of

varying caliber. A further search of the chest of drawers

revealed no other ammunition.

On October 28, 1998, Rich was contacted by Joe Patterson, a

special agent with the Bureau of Alcohol, Tobacco, and Firearms

(ATF). Based upon Rich’s account of the search of Everett’s

home, Patterson applied for and was granted a search warrant to

search the Everett home for firearms and ammunition. The ATF

executed the warrant on October 30 and discovered the seventeen

rounds of loose ammunition observed by Rich during his search of

the residence. In addition, the ATF unearthed three boxes of 9mm

ammunition in the bottom drawer of the same chest of drawers in

2

There was a second chest of drawers in the master

bedroom that contained only female clothing.

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which the loose ammunition was located. No firearms were

discovered.

Everett was arrested and indicted on two counts of being a

felon in possession of ammunition in violation of 18 U.S.C.

§ 922(g)(1). In the first count, Everett was charged with being

in possession of the three boxes of 9mm ammunition. The second

count charged Everett with possession of the loose ammunition.

After a jury trial, Everett was found guilty on both counts of

the indictment and, based upon his status as an armed career

criminal, was sentenced to 188 months on each count, with the

sentences to run concurrently.

Everett raises several issue on appeal, and we address each

in turn.

II. ADMISSIBILITY OF EVERETT’S STATEMENT

First, Everett argues that a statement he made to Patterson

at the time of his arrest was inadmissible because he was under

custodial interrogation at the time he made the statement and had

received no Miranda warnings. After the ammunition was

discovered by the ATF, and Patterson made an initial

determination that it had been manufactured outside the state,

Patterson radioed the Plano police officers who had Everett under

surveillance and requested that they detain him. When Patterson

arrived at the scene where Everett was being detained, he

approached Everett to arrest him. At that time, Patterson

4

introduced himself and informed Everett that he “was being

arrested for violations of the federal firearms laws.” To this,

Everett replied that he did not possess any firearms. Patterson

then stated that he was being arrested for being in possession of

ammunition. At that point, Everett looked at Patterson and

responded, “Hypothetically, I didn’t realize that a convicted

felon couldn’t possess ammunition.”

At the time he made the statement, Everett had not been

advised of his Miranda rights. Everett maintains that at the

time of the exchange, he was in custody, Patterson purposefully

engaged him in conversation, and such conversation “constituted

an interrogation within the broad meaning of the concept.” The

government responds that Everett’s statement was voluntary and

was not in response to custodial interrogation.

A. Standard of Review

Miranda warnings must be given prior to custodial

interrogation. See United States v. Paul, 142 F.3d 836, 843 (5th

Cir. 1998). “The question of whether Miranda’s guarantees have

been impermissibly denied to a criminal defendant, assuming the

facts as established by the trial court are not clearly

erroneous, is a matter of constitutional law, meriting de novo

review.” United States v. Harrell, 894 F.2d 120, 122-23 (5th

Cir. 1990); see also United States v. Gonzales, 121 F.3d 928, 938

(5th Cir. 1997). In reviewing a ruling on a motion to suppress,

we view the evidence in the light most favorable to the party

5

3

that prevailed on the motion in the district court.

See

Gonzales, 121 F.3d at 938.

B. Everett’s Statement Was Voluntary

and Admissible

The parties do not contest that Everett was in custody at

the time of the statement. At issue is whether the exchange

between Patterson and Everett constituted “interrogation” within

the meaning of Miranda. “Custodial interrogation” has been

defined by the Supreme Court as “‘questioning initiated by law

enforcement officers after a person has been taken into

custody.’” Illinois v. Perkins, 496 U.S. 292, 296 (1990)

(quoting Miranda v. Arizona, 384 U.S. 436, 444 (1966)).

Everett was, in fact, in custody at the time he made the

statement, but this statement was not in response to “questioning

initiated by law enforcement officers.” See Gonzales, 121 F.3d

at 939-40. Everett’s statement was voluntary; the police did not

ask him a single question. We recognize that “‘interrogation’

under Miranda refers not only to express questioning, but also to

any words or actions on the part of the police (other than those

normally attendant to arrest and custody) that the police should

know are reasonably likely to elicit an incriminating response

from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301

3

We understand that the defense counsel made an oral

motion to suppress Everett’s statement prior to jury selection.
The court denied the motion. This information was not made part
of the record.

6

(1980) (footnote omitted). However, Everett’s statement was not

initiated by “a measure of compulsion above and beyond that

inherent in custody itself.” Id. at 300. Indeed, his statement

was not prompted by Patterson, but was made in response to being

informed of the circumstances warranting his arrest. As such,

the exchange between Everett and Patterson cannot be

characterized as custodial interrogation, and the statement was

therefore admissible.

III. SUFFICIENCY OF THE WARRANT

Everett moved to suppress the ammunition discovered during

the October 30 search, arguing that Patterson’s affidavit filed

in support of the search warrant failed to set forth facts

establishing probable cause. Therefore, Everett asserted that

the search was invalid. The district court denied Everett’s

motion to suppress, concluding that the evidence was admissible

because the good faith exception to the exclusionary rule applied

and that, in any event, Patterson’s affidavit was sufficient to

establish probable cause.

A. Standard of Review

When reviewing the denial of a motion to suppress, we review

factual findings for clear error and review the district court’s

conclusion regarding the constitutionality of the law enforcement

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action de novo. See United States v. Kelley, 140 F.3d 596, 601

(5th Cir. 1998). In reviewing a challenge to the sufficiency of

an affidavit supporting a search warrant, this court will

consider the affidavit “independently of the district court and

[is] not limited by the clearly erroneous standard of review.”

United States v. McKeever, 5 F.3d 863, 865 (5th Cir. 1993)

(internal quotations and citations omitted) (alteration in

original). Nonetheless, the court “owes deference to the

magistrate’s determination of probable cause and . . . must

construe the affidavit in a common-sense manner.” Id. (internal

quotations omitted) (quoting United States v. Jackson, 818 F.2d

345, 348 (5th Cir. 1982)).

B. Sufficient Probable Cause Existed

for the Warrant

Everett argues that Patterson’s supporting affidavit was

“the equivalent of a ‘bare bones’ affidavit” because it was

“derived solely from the observation of loose ammunition in a

dresser drawer” and thus lacked the necessary facts “from which a

4

Magistrate [could] independently determine probable cause.”

Moreover, Everett contends that the affidavit failed to

demonstrate a “nexus” between the firearms and ammunition listed

in the warrant and interstate commerce.

4

Everett also asserts that the “conclusions rose to the

level of deliberate or reckless material misstatement”; however,
after a review of the record, we disagree.

8

The government responds that under the good faith exception

to the exclusionary rule, the search was valid. Moreover, it

states that the district court alternatively found that even if

the good faith exception did not apply, probable cause existed

for the warrant.

We agree with the district court that sufficient probable

cause existed for the issuance of the search warrant. Under the

“totality of circumstances” test, Patterson’s affidavit in

support of the warrant is sufficient to establish probable cause.

See Illinois v. Gates, 462 U.S. 213, 238-39 (1983).

On October 23, the Plano police officers discovered the

ammunition in the top drawer of a chest of drawers that Everett’s

wife indicated was his. Moreover, Mrs. Everett told the Plano

police officers that Everett kept a weapon and ammunition in the

home. After a telephone interview with Officer Rich, Patterson

composed an affidavit relating Rich’s account of Mrs. Everett’s

statements, as well as Rich’s personal observation of the

ammunition. Drawing conclusions based upon his own experience,

Patterson supplemented the affidavit with his knowledge that the

type of ammunition described by Rich could not have been

manufactured in Texas and thus must have moved in interstate

traffic.

These facts, under a totality of the circumstances analysis,

support that there was a “fair probability” that the ammunition

would be found in Everett’s home. See Gates, 462 U.S. at 238.

9

Accordingly, the district court properly denied Everett’s motion

to suppress.

IV. SUFFICIENCY OF THE EVIDENCE

Everett contends that there was insufficient evidence to

support his conviction. To this end, Everett made two motions

for acquittal during trial, both of which were denied by the

district court.

A. Standard of Review

This court reviews the denial of a motion for a judgment of

acquittal de novo. See United States v. De Leon, 170 F.3d 494,

496 (5th Cir. 1999). In doing so, we consider “‘whether, viewing

the evidence in the light most favorable to the government, a

rational trier of fact could have found the essential elements of

the offense beyond a reasonable doubt.’” Id. (quoting United

States v. Greer, 137 F.3d 247, 249 (5th Cir.), cert. denied, 524

U.S. 920 (1998)).

B. The Evidence Was Sufficient to Support

the Convictions

A conviction under 18 U.S.C. § 922(g)(1) requires the

government to prove that (1) Everett was a convicted felon; (2)

who knowingly possessed the ammunition; and (3) the ammunition

traveled in or affected interstate commerce. See 18 U.S.C.

§ 1922(g)(1); De Leon, 170 F.3d at 496. Everett stipulated that

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he had a prior felony conviction. However, Everett argues that

the evidence was insufficient to prove he “possessed” the

ammunition.

Possession may be either actual or constructive and may be

proved by circumstantial evidence. See United States v. Jones,

133 F.3d 358, 362 (5th Cir. 1998); see also De Leon, 170 F.3d at

496. A defendant may be found in constructive possession of the

ammunition if it is proven that he had “ownership, dominion or

control over an illegal item itself or dominion or control over

the premises in which the item is found.” De Leon, 170 F.3d at

496. However, if two or more persons jointly occupy the place in

which the ammunition was discovered, “mere control or dominion of

that place is, by itself, insufficient to establish constructive

possession.” United States v. Fields, 72 F.3d 1200, 1212 (5th

Cir. 1996). Additional evidence is required, and that evidence

must demonstrate “at least a plausible inference that the

defendant had knowledge of and access to the [contraband].” Id.

Accordingly, because Everett and his wife jointly occupied

the house and the bedroom in which the ammunition was found, we

must consider the additional evidence and determine if it creates

a “plausible inference” that Everett knew of and had access to

the ammunition. Although Everett claims that his dominion over

5

the house was insufficient to establish possession

and that

5

Everett points to a number of cases in which a co-

inhabitant of a dwelling had been found not to possess

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there was testimony at trial indicating that he did not own the

ammunition, our review of the record leads us to the opposite

conclusion.

Everett points out that Mrs. Everett testified that the

loose ammunition actually belonged to her and that she had

inherited it from her deceased father. As to the 9mm ammunition,

Everett’s employee, Chris Odom, testified that on October 29, he

had purchased some cleaning supplies for Mrs. Everett at a local

Wal-Mart and bought the 9mm ammunition for himself. Odom claimed

that when he left the supplies at the Everetts’ home, he also

6

inadvertently left the ammunition.

Viewing the evidence in the light most favorable to the

government and the credibility choices in favor of the verdict,

we find that there is sufficient evidence to support an inference

contraband. See, e.g., United States v. Mergerson, 4 F.3d 337,
349 (5th Cir. 1993) (finding there was no evidence that defendant
was aware that there was a weapon in the house he shared with his
girlfriend). Everett’s reliance on these cases is unavailing.
For example, in Mergerson, the gun was found under the mattress;
the defendant had only lived in the apartment for one month prior
to his arrest; and the defendant produced a pawn shop receipt
demonstrating that the gun in question had been purchased by the
girlfriend before the defendant moved into the apartment.

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Odom was subsequently indicted on one count of

aggravated perjury. An investigation revealed that only one box
of 9mm ammunition, as opposed to three boxes, was purchased on
the day Odom claimed he bought the cleaning supplies and
ammunition. Moreover, the one box of ammunition purchased at the
local Wal-Mart on that day was purchased by credit card, as
opposed to cash, with which Odom claimed he paid. Odom pled
guilty to one count of making false declarations before a court
in violation of 18 U.S.C. § 1623.

12

that Everett had knowledge of and access to the ammunition.

Everett owned the home in which the ammunition was discovered;

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the ammunition was found in Everett’s chest of drawers

; and his

statement to Patterson at the time of his arrest implied that he

knew ammunition was in the house. Accordingly, we find that

there was sufficient evidence supporting Everett’s conviction.

V. DOUBLE JEOPARDY

The jury found Everett guilty of two counts of being a felon

in possession of ammunition. One count concerned the 9mm

ammunition located in the bottom drawer of Everett’s chest of

drawers, and the second count involved the loose ammunition

discovered in the top drawer. Everett was sentenced to 188

months in prison and five years supervised release on each count,

with the sentences to run concurrently. Moreover, Everett

8

received a fine of $17,500 ($8750 for each count)

and a special

7

We note that when the loose ammunition was discovered in

the top drawer of the dresser on October 23, Mrs. Everett told
the police not only that the drawer was her husband’s, but that
she never went into it and that anything in the drawer would be
his property. There was no objection to the admissibility of
these hearsay statements by Mrs. Everett. Hearsay admitted
without objection “‘is to be considered and given its natural
probative effect as if it were in law admissible.’” United
States v. Gresham, 585 F.2d 103, 106 (5th Cir. 1978) (quoting
Daniel v. United States, 234 F.2d 102, 107 (5th Cir. 1956)).

8

Under § 5E1.2 of the U.S. Sentencing Guidelines, the

minimum fine for a defendant with an offense level of 33 is
$17,500 for each offense; however, the district court chose to

13

assessment of $200 ($100 for each count). Everett contends that

these sentences violate the Double Jeopardy Clause of the

Constitution.

A. Standard of Review

Because Everett failed to object to the sentencing on both

counts at the sentencing hearing and raises the issue of double

jeopardy for the first time on appeal, this court reviews his

sentence for plain error. See United States v. Pineda-Ortuno,

952 F.2d 98, 105 (5th Cir. 1992) (addressing double jeopardy

claim under plain error even though defendant failed to raise it

at trial).

B. There Was No Double Jeopardy Violation

Under Plain Error Review

The Double Jeopardy Clause of the Fifth Amendment prohibits

the government from charging a single offense in several counts

and is intended to prevent multiple punishments for the same act.

See United States v. Kimbrough, 69 F.3d 723, 729 (5th Cir. 1995);

United States v. Berry, 977 F.2d 915, 918 (5th Cir. 1992). The

Double Jeopardy Clause may be violated even in a case of

concurrent sentences. See Ball v. United States, 470 U.S. 856,

864 (1985). Moreover, “for double jeopardy purposes, sentences

are not truly concurrent where a mandatory special assessment is

fine Everett a total of $17,500.

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separately imposed on each conviction.” Kimbrough, 69 F.3d at

729; Berry, 977 F.2d at 920.

To ascertain whether Everett’s sentences violate the Double

Jeopardy Clause, we must determine if “‘separate and distinct

prohibited acts, made punishable by law, have been committed.’”

United States v. Lemons, 941 F.2d 309, 317 (5th Cir. 1991)

(quoting United States v. Swain, 757 F.2d 1530, 1537 (5th Cir.),

cert. denied, 474 U.S. 825 (1985)) (considering whether

“continuous” scheme to defraud was single offense or whether it

contained separate offenses). In United States v. Berry, the

court found that it was error to convict a defendant on three

counts of being a felon in possession of a firearm when a single

search yielded three firearms. See 977 F.3d at 919. The court

determined that, while it was not error to prosecute Berry on a

separate count for each weapon, convicting and sentencing him on

multiple counts violated Berry’s rights under the Double Jeopardy

Clause. See id. The Berry court suggested that had the

government demonstrated that Berry obtained the guns at different

times, or stored them in different places, sentencing on three

separate counts might have been appropriate. See id. at 920.

As in Berry, double jeopardy is implicated in this case

because Everett received a mandatory special assessment of $100

for each count. See id.; see also U.S. S

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§ 5E1.3. Berry suggests that one method for obviating a

violation of the Double Jeopardy Clause in the case of the

15

violations of § 922(g)(1) at issue here would be to show that

Everett obtained the ammunition at separate times. See Berry,

977 F.2d at 920.

The question presented, thus, is whether it is a permissible

inference to draw from the evidence presented at trial that

Everett obtained the ammunition on separate occasions. On

October 23, Officer Rich searched Everett’s chest of drawers and

discovered only the loose ammunition. The subsequent search on

October 30 revealed the three boxes of 9mm ammunition in the same

chest of drawers. Viewing this evidence in the context of a

plain error review, we conclude that it is certainly permissible

to infer that Everett obtained the ammunition at separate times.

Therefore, we find no double jeopardy violation.

VI. SENTENCING DEPARTURE

Finally, Everett asserts that the district court erred in

applying the armed career criminal guideline and enhancing his

sentence under § 4B1.4 of the U.S. Sentencing Guidelines. See

U.S. S

G

M

§ 4B1.4. The district court

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assessed Everett’s guideline calculations under § 4B1.4 at an

offense level of 33 and a criminal history category of IV, with a

sentencing range of 188 to 235 months. Accordingly, Everett was

concurrently sentenced on each count to the minimum sentence of

188 months.

A. Standard of Review

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This court reviews the district court’s factual findings for

the purposes of sentencing for clear error, and the court’s legal

application of the Sentencing Guidelines de novo. See United

States v. Franklin, 148 F.3d 451, 459 (5th Cir. 1998). We may

disturb sentences imposed under the guidelines if the sentence is

“‘imposed in violation of law, as a result of an incorrect

application of the sentencing guidelines, or . . . outside of the

applicable guideline range and . . . unreasonable.’” United

States v. Fitzhugh, 984 F.2d 143, 146 (5th Cir. 1993) (citations

omitted) (alterations in original) (quoting United States v.

Acosta, 972 F.2d 86, 90 (5th Cir. 1992)).

B. Application of Armed Career Criminal Guideline

Did Not Violate Eighth Amendment

Everett concedes that the Presentence Investigation Report

accurately reflects that he had been convicted of three counts of

armed bank robbery and one count of an assault on a federal

officer. Moreover, Everett acknowledges that such convictions

can support the application of the armed career criminal

guidelines. Nonetheless, Everett argues that the enhancement he

received violates the Eighth and Fourteenth Amendments of the

Constitution.

The Eighth Amendment prohibits sentences that are grossly

disproportionate to the crime for which the defendant has been

convicted. See United States v. Gonzales, 121 F.3d 928, 942 (5th

Cir. 1997). For this analysis, we must first compare the gravity

17

of the charged offense with the severity of the sentence. See

id.; Smallwood v. Johnson, 73 F.3d 1343, 1347 (5th Cir. 1996).

Only if the sentence is grossly disproportionate may we consider

whether the sentence offends the Eighth Amendment. See

Smallwood, 73 F.3d at 1347.

9

Given the gravity of Everett’s prior convictions

and the

evidence produced at trial, a 188-month sentence is not grossly

disproportionate to the crime charged. Everett was convicted of

possessing ammunition. He was also a thrice convicted bank

robber. Accordingly, we find that the enhancement under the

armed career criminal guidelines did not violate the Eighth and

Fourteenth Amendments in this case, and we conclude that the

district court did not err in enhancing Everett’s sentence under

this provision.

9

This court considers the Supreme Court case of Rummel v.

Estelle, 445 U.S. 263 (1980), to be the touchstone for
determining whether a sentence violates the Eighth Amendment’s
proscription against cruel and unusual punishment. See
Smallwood, 73 F.3d at 1347-48. In Rummel, the Supreme Court held
that a sentence of life imprisonment with an opportunity for
parole after twelve years did not constitute cruel and unusual
punishment in a situation in which the defendant, convicted of
obtaining $120.75 by false pretenses, had two prior felony
convictions. See Rummel, 445 U.S. at 285. Our decision that
Everett’s sentence is not cruel and unusual is bolstered by a
comparison to Rummel. Because Everett’s prior convictions were
for violent felonies, and Rummel’s prior convictions were “non-
serious” (passing a bad check and a forged check), we conclude
that “[t]here can be no argument, in the light of Rummel, that
[Everett]’s sentence is disproportionate, much less grossly
disproportionate, to his offense. . . . Rummel’s record of
offenses was much less grave than [Everett]’s.” McGruder v.
Puckett, 954 F.2d 313, 317 (5th Cir.), cert. denied, 506 U.S. 849
(1992); see also Smallwood, 73 F.3d 1347-48.

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VII. CONCLUSION

For the reasons stated above, the judgments of conviction

and sentence are AFFIRMED.

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Referenced Cases