Fifth Circuit Court Cases - Case Law and Opinions from the 5th Circuit Federal Court - Court of Appeals

	ROMINGER LEGAL
		Fifth Circuit Court of Appeals Opinions - 5th Circuit
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case is from the Fifth Circuit Court or Appeals. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
______________
Nos. 91-2270, 91-2293, 91-2334
______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JOSEPH ALVIN ANDERSON,
Defendant-Appellant.
__________________________________________________
Appeals from the United States District Court
for the Southern District of Texas
__________________________________________________
( March 22, 1993)
Before REYNALDO G. GARZA, HIGGINBOTHAM, and EMILIO M. GARZA,
Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Defendant, Joseph Alvin Anderson, appeals (1) his convictions
for manufacturing and attempting to manufacture methamphetamine
(No. 91-2293), (2) the district court's denial of habeas corpus
relief on his conviction for possessing an unregistered silencer
(No. 91-2270), and (3) the district court's judgment revoking his
probation (No. 91-2334). We affirm on all issues, except one; we
vacate the district court's judgment revoking Anderson's probation
and remand for resentencing.

I
On February 2, 1990, law enforcement officers executed a
search warrant at Anderson's home. The officers seized a number of
items from Anderson's residence, including: various quantities of
methamphetamine and amphetamine in liquid-paste and powder forms,
precursor chemicals, scales, laboratory equipment, counterfeit
currency, explosives, and over 100 firearms))none of which were
registered to Anderson, and several of which were subsequently
determined to be stolen. A recipe for manufacturing
methamphetamine and drug ledgers were also seized. In a shed
behind Anderson's home, the officers discovered a clandestine
laboratory which appeared to be in operation; the officers saw two
pots of a liquid substance heating on a hot plate. Anderson was
arrested and subsequently charged in a superseding indictment with
six counts: (1) manufacture of methamphetamine, in violation of 21
U.S.C. з 841(a)(1) (1988); (2) attempted manufacture of
methamphetamine, in violation of 21 U.S.C. з 846 (1988); (3) using
and carrying a firearm during a drug trafficking offense, in
violation of 18 U.S.C. з 924(c)(1) (1988); (4) being a felon in
possession of a firearm, in violation of 18 U.S.C. зз 922(g)(1) &
924(a)(1)(2) (1988); (5) possession of an unregistered automatic
weapon, in violation of 26 U.S.C. зз 5861(d) & 5871 (1988); and,
(6) possession of a firearm that had an altered serial number, in
violation of 26 U.S.C. з 5861(d) & 5871 (1988). At the time of his
arrest, Anderson was on federal probation for the possession of an
unregistered silencer. In Criminal No. H-90-108-01, Anderson was
-2-

convicted by a jury on all six counts. However, the district court
vacated Anderson's conviction under Count 6.
The district court sentenced Anderson to 120 months
imprisonment on Counts 1, 2, 4, and 5 to run concurrently; a
mandatory 60 month sentence on Count 3 to run consecutive to the
other counts; five years supervised release on Counts 1 and 2, and
three years supervised release on Counts 3, 4, and 5 to run
concurrently. In addition, Anderson was ordered to pay a $50.00
special assessment on each count, for a total of $250.00.
Anderson's probation for the possession of an unregistered silencer
was also revoked, and he was sentenced to ten years imprisonment
for possession of the silencer, with this sentence to run
consecutive to the sentence imposed in Criminal No. H-90-108-01.
In this consolidated appeal, Anderson claims that:
(a)
his convictions under Counts 1 and 2 violated the
double jeopardy clause, because he could not be convicted
of both manufacturing methamphetamine and attempting to
manufacture the same;
(b)
the district court erred in sentencing him for
manufacturing
and
attempting
to
manufacture
methamphetamine because the government failed to allege
the quantity of methamphetamine in the indictment, and
the district court improperly used the entire weight of
a substance containing only a trace of methamphetamine.
(c)
the district court improperly instructed the jury
that they could find him guilty of possessing an
unregistered firearm if he had component parts of a
silencer; and
(d)
the district court denied him his right of
allocution at his probation revocation hearing.
-3-

II
A
In appeal No. 91-2293, Anderson argues that Count 2 (attempt
to manufacture methamphetamine) was a lesser included offense of
Count 1 (manufacture of methamphetamine), and therefore his
multiple convictions and sentences on both counts violated the
double jeopardy clause. In general, "attempt is an offense
included in the completed crime, and, therefore, cannot support a
separate sentence and conviction." United States v. York, 578 F.2d
1036, 1040 (5th Cir.) cert. denied, 439 U.S. 1005, 99 S. Ct. 619,
58 L. Ed. 2d 682 (1978); see also Brown v. Ohio, 432 U.S. 161, 165,
97 S. Ct. 2221, 2227, 53 L. Ed. 2d 187 (1977) (The double jeopardy
clause "protects against multiple punishments for the same
offense."). This rule usually applies where multiple convictions
and sentences are based on a single act or transaction,1 and does
not apply where the completed crime is factually distinct from the
attempted offense. See United States v. McDonald, 692 F.2d 376,
377-80 (5th Cir. 1982) (Where defendant argued that his conviction
on two counts of distributing a controlled substance under з 841(a)
violated the double jeopardy clause, we held that two separate
1
However, we have on numerous occasions "upheld multiple
convictions and separate sentences even where the defendant
arguably engaged in but a single act, agreement or course of
conduct." United States v. McDonald, 692 F.2d 376, 379 (5th Cir.
1982). We have upheld separate sentences and convictions for:
"importation of cocaine and possession of the same with intent to
distribute; simultaneous possession of two different drugs with
intent to distribute; conspiracy to import marijuana and conspiracy
to import the same; conspiracy to import and attempt to import the
same marijuana." Id. (footnotes omitted).
-4-

physical deliveries of a controlled substance, which were motivated
by a single financial scheme, constituted two distinct criminal
acts subject to consecutive sentences.), cert. denied, 460 U.S.
1073, 103 S. Ct. 1531, 75 L. Ed. 2d 952 (1983); cf. United States
v. Forester, 836 F.2d 856, 859-61 (5th Cir. 1988) (Although we
upheld defendant's convictions for attempt to manufacture
methamphetamine and possession of P2P with intent to manufacture
methamphetamine, we held that defendant could not receive separate
sentences for both convictions because they involved successive
steps in one manufacturing process.). The manufacture of one batch
of methamphetamine is factually distinct from the manufacture of
another batch. See United States v. Housley, 907 F.2d 920, 922-23
(9th
Cir.
1990)
(upholding
defendant's
convictions
for
manufacturing
methamphetamine
and
attempt
to
manufacture
methamphetamine because the crimes involved two distinct batches of
methamphetamine). Therefore, a defendant may receive separate
convictions and sentences for manufacturing one batch of
methamphetamine and attempting to manufacture another batch. Id.
Anderson did not merely execute steps in manufacturing one
batch of methamphetamine as in Forester. Rather, there was
evidence that the manufacture of methamphetamine as charged in
Count 1 was factually distinct from the attempt to manufacture
methamphetamine as charged in Count 2. Anderson had succeeded in
manufacturing one batch of methamphetamine. See Record on Appeal,
No. 91-2293, vol. 14, at 13 (some quantities of methamphetamine in
its final powdered form were seized from Anderson's house). There
-5-

was evidence that Anderson was attempting to manufacture a second
batch of methamphetamine when the search warrant was executed, and
it was this attempt that served the basis for Anderson's conviction
under Count 2 for attempting to manufacture methamphetamine. Count
2 therefore was not a lesser included offense of Count 1.
Anderson also argues that there was insufficient evidence to
support his conviction under Count 2 for attempting to manufacture
a second batch of methamphetamine.2 The standard of review for
judging the sufficiency of the evidence "is whether any rational
trier of fact could have found the essential elements of the crime
beyond a reasonable doubt." United States v. Hernandez-Palacios,
838 F.2d 1346, 1348 (5th Cir. 1988). In making this determination,
the evidence must be considered "in the light most favorable to the
government, giving the government the benefit of all reasonable
inferences and credibility choices." Id. To convict Anderson of
attempt under 21 U.S.C. з 846 (1988), the government had to prove
that he (1) acted with the required criminal intent, and (2)
engaged in conduct constituting a "substantial step" toward
commission of the substantive offense, "i.e., conduct strongly
2
At oral argument Anderson conceded that quantities of
methamphetamine in its final powdered form were found in his home,
and does not argue that his conviction under Count 1 for the
manufacture of methamphetamine was not supported by the evidence.
Anderson argues only that there was no evidence that he was
attempting to manufacture a second batch of methamphetamine. See
Brief for Anderson, No. 91-2293, at 12-13 ("At the time of his
arrest, Mr. Anderson was seated at his kitchen table, . . . not in
the lab `cooking up' another batch of drugs additional to that
which was seized.").
-6-

corroborative of the defendant's criminal intent." United States
v. Stone, 960 F.2d 426, 433 (5th Cir. 1992).
There was sufficient evidence that Anderson was attempting to
manufacture a second batch of methamphetamine when the search
warrant was executed. In a shed behind Anderson's house, law
enforcement officers discovered a makeshift laboratory, consisting
of a heater mantle,3 two pots on top of a hot plate,4 syrup
canisters,5 a condenser,6 a soft drink dispenser,7 an aluminum foil
bucket,8 large glass containers,9 canisters possibly containing lye
(sodium hydroxide),10 and fans for ventilation11. The DEA chemist
testified that the laboratory could be used to manufacture
methamphetamine. See Record on Appeal, No. 91-2293, vol. 12, at
24. Furthermore, Agent Lewis testified that, based on his
experience,12 the laboratory appeared to be a laboratory for
3
Record on Appeal, No. 91-2293, vol. 9, at 103; id. vol.
10, at 3-116, 3-129; id. vol. 12, at 17.
4
Id. vol. 9, at 74-75, 103-04; id. vol. 10, at 3-69.
5
Id. vol. 9, at 104.
6
Id. vol. 10, at 3-116.
7
Id. vol. 12, at 24.
8
Id.
9
Id.
10
Id. at 18.
11
Id. vol. 10, at 3-117; id. vol. 12, at 24.
12
Agent Lewis, a special agent with the DEA, was assigned
to the Clandestine Lab Group, which was responsible for
investigating clandestine laboratories that were engaged in the
manufacture of controlled substances such as methamphetamine. See
-7-

manufacturing methamphetamine. See id. vol. 10, at 3-69. Some of
the law enforcement officers who executed the search warrant
testified that, upon entering the shed, they noticed that the hot
plate was on, see id. vol. 9, at 75, 103-04, and smelled the
distinct odor of methamphetamine emanating from the two pots that
were on the hot plate, see id.; id. vol. 10, 3-116, 3-129. In
addition,
the
officers
found
recipes
for
manufacturing
methamphetamine in Anderson's house, as well as P2P, a precursor
chemical used in manufacturing methamphetamine. See id. vol. 14,
at 9, 18, 20. In light of the evidence, a trier of fact could have
found Anderson guilty beyond a reasonable doubt of attempting to
manufacture methamphetamine. We therefore hold that there was
sufficient evidence to convict Anderson under Count 2 as charged.
Anderson further contends that either his conviction under
Count 1 or his conviction under Count 2 should be reversed because
the district court erroneously failed to instruct the jury
specifically that in order to convict him under both Counts 1 and
2, it had to find two factually distinct offenses. Because
Anderson did not object to the instruction before the district
court, we will reverse only if the instruction constituted plain
error, "i.e., if `considering the entire charge and evidence
presented against the defendant, there is a likelihood of a grave
miscarriage of justice.'" Stone, 960 F.2d at 434 (quoting United
States v. Sellers, 926 F.2d 410, 417 (5th Cir. 1991)). The
id. vol. 10, at 3-66. Agent Lewis testified that he had seen 35-40
methamphetamine laboratories in his career. See id. at 3-69.
-8-

district court's omission, if any, does not amount to plain error
"unless it could have meant the difference between acquittal and
conviction." United States v. Contreras, 950 F.2d 232, 240 (5th
Cir. 1991) (in instructing jury on law of attempt, district court
did not plainly err in failing to tell jury that they had to find
that defendant engaged in conduct constituting a substantial step
towards commission of the crime), cert. denied, ___ U.S. ___, 112
S. Ct. 2276, 119 L. Ed. 2d 202 (1992). We disagree that the
district court erred by not telling the jury that it had to find
two factually distinct offenses. First, we have not found any
cases, nor have the parties cited to any, which require such an
instruction. Second, the district court properly instructed the
jury on the elements
of both
offenses))manufacture
of
methamphetamine and attempt to manufacture methamphetamine. See
Record on Appeal, No. 91-2293, vol. 15, at 6-174 to -175. Third,
the government argued during closing argument that there were two
factually distinct offenses. See id. at 6-114 to -115 ("[Anderson]
had already manufactured methamphetamine, [and was] in the position
of making substantial steps to make more. [Anderson] hadn't
finished, [he] hadn't been able to complete it, but [he was]
attempting to make more."), 6-153. Fourth, as discussed above,
there was sufficient evidence that the attempt to manufacture
methamphetamine was factually distinct from the manufacture of
methamphetamine. Therefore, the district court's omission, if any,
clearly did not amount to plain error, because it did not mean the
difference between acquittal and conviction.
-9-

B
In appeal No. 91-2293, Anderson also challenges the sentences
imposed for his convictions under Counts 1 and 2, claiming that (1)
the government failed to allege the quantity of methamphetamine
seized in the indictment, and (2) the district court erred in
using the total amount of a substance containing a trace of
methamphetamine rather than the total amount of usable
methamphetamine.13 Because Anderson was convicted under 21 U.S.C.
зз 841(a) and 846, he was subject to the penalties of 21 U.S.C.
з 841(b). The district court sentenced Anderson to ten years
imprisonment on each count, such terms to run concurrently, on the
ground that Anderson manufactured and attempted to manufacture one
kilogram or more of a substance containing a detectable amount of
methamphetamine. See 21 U.S.C. з 841(b)(1)(A)(viii) (1988).14
13
Anderson also claims that his conviction for possessing
an unregistered silencer should not have been included in the
calculation of his criminal history category because the conviction
was obtained in violation of the ex post facto clause and his right
to the effective assistance of counsel. See Brief for Anderson,
No. 91-2293, at 13. Because we uphold Anderson's conviction, this
argument is without merit. See discussion infra part II.C.
14
Section 841(b) sets forth three penalty ranges for the
offense of manufacturing methamphetamine, based upon the total
amount of methamphetamine involved: (1) ten years to life if "100
grams or more of methamphetamine . . . or 1 kilogram or more of a
mixture or substance containing a detectable amount of
methamphetamine" were involved; (2) five to forty years if "10
grams or more of methamphetamine . . . or 100 grams or more of a
mixture or substance containing a detectable amount of
methamphetamine" were involved; and (3) zero to twenty years for
all other methamphetamine offenses (except those involving death,
serious bodily injury, or repeat offenders). See 21 U.S.C. з
841(b) (1988).
-10-

Anderson first argues that he should not have been sentenced
based on the quantity of methamphetamine involved, because the
government did not mention a specific quantity of methamphetamine
in the indictment. We expressly rejected Anderson's argument in
United States v. Royal, 972 F.2d 643 (5th Cir. 1992), cert. denied,
1992 WL 353245, 61 U.S.L.W. 3403, 3564, 3581 (1993). We held in
Royal that because quantity is not an element of offenses
proscribed by з 841(a), quantity is relevant only at sentencing
under з 841(b), and as a result, a defendant is not entitled to be
notified through the indictment that the government intends to use
quantity in seeking a sentence. See id. at 650. We therefore hold
that Anderson was not entitled to receive notice of the
government's intent to use quantity in the indictment.
Due process only requires adequate notice of the possibility
that a defendant's sentence will be based on quantity. See Royal,
972 F.2d at 650. While Anderson may not have received notice in
the indictment, Anderson did receive adequate notice thorough the
presentence
investigation
report
that
the
quantity
of
methamphetamine would be relevant in determining his sentence. See
id. ("[T]he Presentence Report notified [the defendant] that the
quantity of cocaine would be relevant in determining his
sentence.").
Anderson next argues that the district court improperly based
his sentence on the entire weight of a substance containing only a
trace amount of methamphetamine. Anderson submits that the
district court should have based his sentence only on the amount of
-11-

pure methamphetamine that was found, and not on the entire weight
of the seized substance. The DEA chemist found a detectable amount
of methamphetamine in the substance seized from Anderson's home,
and the substance weighed at least one kilogram. See Record on
Appeal, No. 91-2293, vol. 12, at 46; id. vol. 14, at 5-6. We
review a district court's application of the sentencing guidelines
de novo and its factual findings for clear error. United States v.
Ruff, 1993 WL 33119, at *4 (5th Cir. Feb. 12, 1993).
In United States v. Sherrod, 964 F.2d 1501 (5th Cir. 1992), cert.
denied, ___ U.S. ___, 113 S. Ct. 832, 121 L. Ed. 2d 701 (1992), and
cert. dismissed, ___ U.S. ___, 113 S. Ct. 834, 122 L. Ed. 2d 111
(1992), and cert. denied, 61 U.S.L.W. 3579 (U.S. Feb. 22, 1993), we
expressly rejected Anderson's argument, holding that it is not
improper for the district court to consider the total weight of a
substance containing a detectable amount of methamphetamine in
sentencing a defendant.15 See id. at 1509-11; see also Ruff, 1993
WL at *4 (upholding sentence where district court considered the
entire amount of mixtures containing trace amounts of
methamphetamine). We stated that the argument now advanced by
Anderson was inconsistent with з 841(b), the sentencing guidelines,
and passages in Chapman v. United States, ___ U.S. ___, 111 S. Ct.
15
The Circuits are split on this issue. Ruff, 1993 WL at
*4; see also Walker v. United States, ___ U.S. ___, 113 S. Ct. 443,
443, 121 L. Ed. 2d 362 (1992) (White, J., dissenting from denial of
certiorari) (stating that the Second, Third, Sixth, Ninth, and
Eleventh Circuits have adopted a position contrary to that of the
First, Fifth, and Tenth Circuits); Sherrod, 964 F.2d at 1509
(stating that we had expressly declined in Walker to follow the
Sixth Circuit's approach).
-12-

1919, 114 L. Ed. 2d 524 (1991). See Sherrod, 964 F.2d at 1509; see
also United States v. Walker, 960 F.2d 409, 412 (5th Cir.), cert.
denied, ___ U.S. ___, 113 S. Ct. 443, 121 L. Ed. 2d 362 (1992).
Thus, the district court properly based Anderson's sentence on the
entire weight of the substance containing only a trace amount of
methamphetamine. See id.
C
Anderson was arrested on October 27, 1986, and subsequently
indicted under Count 4 for possessing an unregistered firearm, in
violation of 26 U.S.C. зз 5861(d) and 5871 (1988).16 Count 4
described the firearm as an unregistered silencer with an overall
length of four and three fourth inches, bearing no serial number.
See Record on Appeal, No. 91-2270, vol. 1, at 186. At trial, the
government introduced into evidence its Exhibit 4, which was
identified as a rear portion of a siotic type silencer. See id.
vol. 4, at 152, 197. The government also introduced Exhibit 4-A,
which was identified as some of the internal parts of the front
section of a silencer. See id. at 152, 201. The jury convicted
Anderson on Count 4, and the conviction was affirmed on direct
appeal. Subsequently, Anderson's application for rehearing en banc
was granted. United States v. Anderson, 885 F.2d 1248 (5th Cir.
1988). In his en banc brief Anderson argued that the district
court's definition of a silencer violated the ex post facto clause,
but the en banc panel refused to address the argument because it
16
Anderson was also charged with three other counts of
unlawful possession of a firearm.
-13-

was raised for the first time. See id. at 1250 n.2. Anderson then
filed a 28 U.S.C. з 2255 (1988) motion in federal district court,
raising the ex post facto argument. The district court denied the
з 2255 motion, and Anderson appeals.
1
In appeal No. 91-2270, Anderson first argues that the district
court violated the ex post fact clause by erroneously instructing
the jury that they could find him guilty of possessing an
unregistered firearm for having component parts of a silencer.
Anderson claims that the instruction constituted an ex post facto
violation, because at the time he committed the offense component
parts of a silencer did not satisfy the statutory definition of a
silencer.
At the time Anderson committed the offense, "firearm" was
defined to include "[a]ny device for silencing or diminishing the
report of any portable weapon . . . and is not limited to mufflers
or silencers for `firearms' as defined." 27 C.F.R. з 179.11
(1986); see also 26 U.S.C. з 5845(a)(7) (1988) (defining silencer
by reference to 27 C.F.R. з 179.11). After Anderson's arrest, з
5845(a)(7) was amended to define silencer as "any device for
silencing, muffling or diminishing the report of a portable
firearm, including any combination of parts, designed or
redesigned, and intended for use in assembling or fabricating a
firearm silencer or firearm muffler, and any part intended only for
use in such assembly or fabrication." 18 U.S.C. з 921(a)(24)
-14-

(1988) (emphasis added); see also 26 U.S.C. з 5845(a)(7) (defining
silencer by reference to з 921(a)(24)).17
The district court's instruction to the jury with regard to
Count 4 was as follows:
Count Four reads that . . . Joe Alvin Anderson, defendant
herein, did unlawfully and knowingly possess a firearm as
defined in [26 U.S.C. з 5845(a)(7)]; that is, a silencer
with an overall length of four and three quarters inches,
bearing no serial number, which firearm was not
registered to him . . . .
. . . .
And the statute says:
"A silencer for any firearm, whether or not such
firearm is included within this definition."
Now, Title 18, United States Code, section 921(24),
defines firearm silencer as, "any device for silencing,
muffling or diminishing the report of a portable firearm,
including any combination of parts designed or redesigned
and intended for use in assembling or fabricating a
firearm silencer or firearm muffler and any part intended
only for use in such assembly or fabrication."
And, again, the statute provides under [26 U.S.C.
з 5871], any person who fails to comply with any
provision of this statute, and that's the registration
requirement, violates the law.
So, in Count Four, the government has alleged the
defendant unlawfully and knowingly possessed a firearm
silencer in violation of the law. That is, by failing to
register the said firearm in the National Firearms
Registration and Transfer Record.
Now, in order to establish the offenses prohibited
by these statutes, there are two essential elements which
the government must prove beyond a reasonable doubt:
First, that the defendant at the time and place
alleged in the indictment knowingly possessed a firearm,
it can be any other weapon or silencer, and
Second, that the firearm or any other weapon or
silencer was not then registered to the defendant in the
National Firearms Registration and Transfer Record.
It is not necessary for the government to prove that
the defendant knew that the item described in the
indictment was a firearm which the law requires to be
17
Section 5845(a)(7) was amended in May 1986, before
Anderson committed the offense. The amendment did not take effect,
however, until November 15, 1986, three weeks after Anderson
committed the offense.
-15-

registered. What must be proved beyond a reasonable
doubt is that the defendant knowingly possessed the item
as charged, that such item was a firearm, as defined
before, and that it was not then registered to the
defendant in the National Firearms Registration and
Transfer Record.
Record on Appeal, No. 91-2270, vol. 5, at 299-300.
On collateral review of an allegedly erroneous jury
instruction, we must determine "`whether the ailing instruction by
itself so infected the entire trial that the resulting conviction
violates due process,' . . . not merely whether `the instruction is
undesirable, erroneous, or even "universally condemned."'"
Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1737, 52 L.
Ed. 2d 203 (1977) (quoting Cupp v. Naughten, 414 U.S. 141, 146-47,
94 S. Ct. 396, 400, 38 L. Ed. 2d 368 (1973)) (citation omitted);
see also Thompson v. Lynaugh, 821 F.2d 1054, 1060 (5th Cir.), cert.
denied, 483 U.S. 1035, 108 S. Ct. 5, 97 L. Ed. 2d 794 (1987).18
Although Henderson involved a habeas petition brought by a state
prisoner, see id. at 151, 97 S. Ct. at 1735, the Supreme Court has
extended Henderson to habeas petitions brought by federal
prisoners. See United States v. Frady, 456 U.S. 152, 166, 169 &
n.17, 102 S. Ct. 1584, 1593, 1595 & n.17, 71 L. Ed. 2d 816 (1982).
In doing so, the Supreme Court stated that while it was not
confronted with the considerations of comity present in Henderson,
18
The Supreme Court noted that this standard is stricter
than that used to review erroneous jury instructions on direct
appeal: "[T]he burden of demonstrating that an erroneous
instruction was so prejudicial that it will support a collateral
attack on the constitutional validity of a state court's judgment
is even greater than the showing required to establish plain error
on direct appeal." Henderson, 431 U.S. at 154, 97 S. Ct. at 1736-
37.
-16-

the Federal Government, no less than the States, has an
interest in the finality of its criminal judgments. In
addition, a federal prisoner . . ., unlike his state
counterparts, has already had an opportunity to present
his federal claims in federal trial and appellate forums.
On balance, we see no basis for affording federal
prisoners
a
preferred
status
when
they
seek
postconviction relief.
Id., 431 U.S. at 166, 102 S. Ct. at 1593; see also United States v.
Flores, 981 F.2d 231, 235 & n.5 (federal government's interest in
finality of judgments is no less than that of the states). In
reviewing an allegedly erroneous jury instruction, "`[a] single
instruction to the jury may not be judged in artificial isolation,
but must be viewed in the context of the overall charge.'" Frady,
456 U.S. at 169, 102 S. Ct. at 1595 (quoting Cupp, 414 U.S. at 146-
47, 94 S. Ct. at 400). Furthermore, "`a judgment of conviction is
commonly the culmination of a trial which includes testimony of
witnesses, argument of counsel, receipt of exhibits in evidence,
and instructions of the jury by the judge. Thus not only is the
challenged instruction but one of many such instructions, but the
process of instruction itself is but one of several components of
the trial which may result in the judgment of conviction.'" Id.
(quoting Cupp, 414 U.S. at 147, 94 S. Ct. at 400)).
Anderson argues that the district court's instruction amounted
to a due process violation, because the jury could have found him
guilty on the ground that Exhibit 4 was a part designed and
intended for use in assembling a silencer))which allegedly would
have been impermissible.19 Anderson bases his argument on the
19
Because we hold that the district court's instruction did
not amount to plain error, we do not decide whether the district
-17-

testimony of the government's expert witness, who referred to
Exhibit 4 alternatively as a silencer, and as part of a silencer.
See Record on Appeal, No. 91-2270, vol. 4, at 197, 231, 236, 237.
Nonetheless, Anderson has not shown that the jury found Exhibit 4
to be a part designed and intended for use in assembling a
silencer. It appears more likely that the jury found Exhibit 4 to
be a device that diminished the report of a weapon, and therefore
met the statutory definition of a silencer. See 27 C.F.R. з 179.11
(1986). There was uncontradicted evidence that Exhibit 4 reduced
the report of a pistol in Anderson's possession by nine decibels.
See id. vol. 4, at 198-200, 232. Furthermore, the government's
only argument was that Exhibit 4 was a firearm because it
diminished the report of a weapon found in Anderson's possession.
See id. at 198-201; id. vol. 5, at 275-76. The government never
argued that Exhibit 4 was a part designed and intended to be used
in the assembly of a silencer. See id. vol.4, at 133-34, 197-201;
id. vol. 5, at 275-76. Therefore, it is unlikely that the jury
based its verdict on a finding that Exhibit 4 was a component part
of a silencer.
Anderson also argues that the jury could have based its
conviction on Count 4 solely on Exhibit 4-A, which was identified
as component parts of a silencer. We disagree. The district
court, in denying Anderson's з 2255 motion, stated that "the
instruction given by the trial court specifically identified the
court erred in instructing the jury that the statutory definition
of a silencer included component parts.
-18-

silencer alleged in Count Four as `a silencer with an overall
length of four and three quarters inches, bearing no serial
number.' Such a description could have allowed the jury to
consider only exhibit 4 with regard to Count Four." Record on
Appeal, No. 91-2270, vol. 1, at 23. Although there is no evidence
in the record that explicitly states the lengths of Exhibits 4 and
4-A, it is clear that all the parties believed that Count
4))referring to a silencer four and three fourth inches long))
described Exhibit 4. Furthermore, the parties do not dispute that
Exhibit 4 had an overall length of four and three quarters inches,
and Anderson does not argue that Exhibit 4-A was of that length.
We conclude that Count 4))by describing the silencer as being four
and three quarters inches long))referred to Exhibit 4, and not 4-A.
As a result, the district court's instruction only permitted the
jury to convict Anderson for possession of Exhibit 4.20 Therefore,
we hold that the district court's instruction by itself did not so
infect the trial that the resulting conviction violated due
process.
2
Anderson next claims that he had ineffective assistance of
counsel because his counsel failed to object to the district
court's instruction as discussed in Part II.C.1. To prevail, he
must prove that (1) his counsel's performance was deficient, and
20
Because Anderson does not argue that the jury disregarded
the district court's instructions, we presume that the jury
followed its instructions. See Zafiro v. United States, ___ U.S.
___, 113 S. Ct. 933, 939, 61 U.S.L.W. 4147 (1993).
-19-

(2) the deficient performance prejudiced his defense. Strickland
v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed.
2d 674 (1984). To establish prejudice, Anderson must show that
"there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been
different." Id. at 694, 104 S. Ct. at 2068. Anderson has not
established that his counsel's error, if any, prejudiced his case.
If his counsel had objected to the instruction on the component
parts, the district court still could have instructed the jury that
it could find Anderson guilty under Count 4 for having a device
that diminished the sound of a weapon. Uncontradicted evidence was
given at trial that Exhibit 4 did diminish the sound of a pistol in
Anderson's possession by nine decibels. See Record on Appeal, No.
91-2270, vol. 4, at 198-201; id. vol. 5, at 275-76. Consequently,
we find that Anderson has not shown a reasonable probability that
the result of his trial would have been different but for his
counsel's alleged error.
D
Finally, in appeal No. 91-2334, Anderson alleges that the
district court denied him his right of allocution at his probation
revocation hearing. The government concedes that the district
court erred by not specifically addressing Anderson and asking him
if he wanted to exercise his right of allocution. See Brief for
United States at 23. Under Fed. R. Crim. P. 32(a)(1)(C),
defendants must be given the opportunity personally to speak in
their own behalf before sentence is imposed. United States v.
-20-

Dominguez-Hernandez, 934 F.2d 598, 599 (5th Cir. 1991). "If the
district court fails to provide the right of allocution,
resentencing is required." Id. Therefore, we vacate and remand
the district court's judgment for resentencing.
III
For the foregoing reasons, we VACATE the district court's
judgment revoking Anderson's probation and REMAND for resentencing;
in all other respects, the district court's judgment is AFFIRMED.
-21-