United States v. Curtis

* Pursuant to 5TH CIR. R. 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that this opinion should not be published and is not precedent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 CIR.
R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
May 3, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-60691
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EARNEST LEDON CURTIS,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 1:02-CR-127-B-1
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Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.
PER CURIAM:*
Earnest Ledon Curtis appeals his guilty-plea conviction and
sentence for knowingly and intentionally possessing with intent
to distribute marijuana in violation of 21 U.S.C. § 841(a) and
(b)(1)(D). He argues that the district court clearly erred in
calculating the amount of marijuana attributable to him for
sentencing purposes; that the district court clearly erred in
enhancing his offense level under United States Sentencing

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Guidelines § 2D1.1(b)(1) for possession of a firearm; and that
the district court erred in not suppressing evidence seized in
connection his arrest.
Factual findings made by a sentencing court must be
supported by a preponderance of the evidence and are upheld
unless clearly erroneous. United States v. McCaskey, 9 F.3d 368,
372 (5th Cir. 1993). The sentencing court’s interpretations of
the guidelines are reviewed de novo. Id.
The district court did not clearly err in relying on the
information in the presentencing report to conclude that the
previous drug transactions involving Curtis and Ray Poirier were
relevant conduct for sentencing purposes. The information
obtained from the probation officer’s interview with Drug
Enforcement Agent Aldridge and the investigative reports was
sufficiently reliable for sentencing purposes. See United States
v. Manthei, 913 F.2d 1130, 1137-38 (5th Cir. 1990). Moreover,
the information obtained from others involved in the drug
transactions were corroborated by the information from the DEA
agent and by the circumstances of the controlled sale, which also
involved a purchase of marijuana by Curtis from Poirier. See
United States v. Rogers, 1 F.3d 341, 344 (5th Cir. 1993).
Finally, the offense of conviction and the previous drug
transactions all involved Curtis obtaining the same drug,
marijuana, from the same supplier, Poirier. Although Curtis
argues that the transactions were not in temporal proximity to

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the May 2002 offense of conviction, the presentencing report
indicated that the deliveries were made on a regular basis from
1996 until sometime in 2001. Even if there was a break of over
one year in this case, the other factors are strong enough to
weigh in favor of finding that the transactions were part of the
same course of conduct. See United States v. Wall, 180 F.3d 641,
646 (5th Cir. 1999); see also U.S.S.G. § 1B1.3(a)(2) and comment.
(n.9(A) and (B)).
Curtis argues that the relevant conduct should not have been
considered because the uncharged conduct so influenced the
sentence that it “becomes a case of the tail wagging the dog.”
This argument is without merit. See United States v. Doggett,
230 F.3d 160, 164-65 (5th Cir. 2000).
Curtis has not shown that it was clearly improbable that the
weapons possessed by co-defendant Jeff Ware were connected to the
offense. See U.S.S.G. § 2D1.1, comment. (n.3). Curtis and Ware
were jointly undertaking to purchase approximately 100 pounds of
marijuana for $57,000, and Ware’s two loaded guns were in his
vehicle on Curtis’ property where the drug transaction took
place. See United States v. Aguilera-Zapata, 901 F.2d 1209, 1215
(5th Cir. 1990); United States v. Wilson, 105 F.3d 219, 221 (5th
Cir. 1997); United States v. Paulk, 917 F.2d 879, 882 (5th Cir.
1991); United States v. Pomranz, 43 F.3d 156, 162 (5th Cir.
1995); United States v. Vasquez, 161 F.3d 909, 912-13 (5th Cir.
1998).

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Finally, Curtis has waived his right to appeal any issues
raised in his motion to suppress, which was never ruled upon
because he entered an unconditional plea of guilty to the offense
of conviction. See FED. R. CRIM. P. 11(a)(2); United States v.
Bell, 966 F.2d 914, 916, 917 (5th Cir. 1992). Accordingly,
Curtis’ conviction and sentence are AFFIRMED.

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