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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 92-3790
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BOBBY RAY MCCASKEY a/k/a Snake
and LIONEL LEGARD a/k/a Max,
Defendants-Appellants.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
_________________________________________________________________
(December 6, 1993)
Before REYNALDO G. GARZA, KING and DEMOSS, Circuit Judges.
PER CURIAM:
Bobby Ray McCaskey and Lionel Legard pleaded guilty to
conspiracy to distribute cocaine hydrochloride. Each defendant
now appeals his sentence. Legard, in the alternative, seeks to
have his guilty plea vacated.
I. BACKGROUND
On December 12, 1991, a grand jury indicted Bobby Ray
McCaskey and Lionel Legard in a multi-count indictment, charging
them as follows: (I) conspiracy to distribute cocaine
hydrochloride in violation of 21 U.S.C. § 846 "from on or about
November 4, 1991, and continuing until on or about November 26,

1991"; (II) distribution of cocaine hydrochloride in violation of
21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 on or about November 4,
19911; (III) distribution of cocaine hydrochloride in violation
of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 on or about November
14, 1991; and (IV) distribution of cocaine hydrochloride in
violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 on or about
November 19, 1991. The indictment also charged Legard alone with
two additional counts: (V) distribution of cocaine base in
violation of 21 U.S.C. § 841(a)(1) on or about April 19, 1991;
and (VI) distribution of cocaine base in violation of 21 U.S.C. §
841(a)(1) on or about October 24, 1991. Legard and McCaskey were
arraigned on December 16, 1991, in the United States District
Court for the Eastern District of Louisiana and pleaded not
guilty to all charges. On the date of arraignment, Legard and
McCaskey signed "waiver of conflict of interest forms" whereby
they both consented to be represented by retained counsel Blake
Jones.
Legard and McCaskey entered into written plea agreements
with the government, whereby each agreed to plead guilty to the
conspiracy count and the government agreed to request dismissal
of the remaining counts. Legard and McCaskey pleaded guilty to
the conspiracy count on April 6, 1992. The district court
rearraigned both defendants on that date, accepted the plea
1 Although the indictment states that the transaction
charged in Count II took place "[o]n or about November 4, 1991,"
there was evidence that this transaction actually took place on
November 5, 1991.
2

agreement, and adjudged the defendants guilty. Accordingly, the
court ordered preparation of presentence investigation reports
(PSRs) for both defendants. The sentencing date was set for June
17, 1992; at the government's request sentencing was continued to
July 15, 1992, because of delays in preparation of the PSRs. The
defendants then moved for a continuance based on information they
had received that government tests on some of the illicit
substances at issue tended to show that they were cocaine base
instead of cocaine hydrochloride, and sentencing was continued
until August 12, 1992. A weather emergency resulted in still
another continuance, this time until September 2, 1992.
Two days before the sentencing date, the government notified
the defendants that it intended to adduce testimony during the
sentencing hearing that the substance involved in the incident
charged in Count II was actually cocaine base instead of cocaine
hydrochloride. At the sentencing hearing on September 2, 1992,
the defendants' attorney tendered to the court a memorandum on
behalf of McCaskey alone objecting to the parts of McCaskey's PSR
that considered any substance as cocaine base. Government
witnesses testified at the sentencing hearing that the substance
charged in Count II of the indictment was cocaine base rather
than cocaine hydrochloride. The sentencing court adopted
Legard's PSR in the absence of any objection, sentencing Legard
to ninety months imprisonment, to be followed by a supervised
release term of five years, and ordering him to pay a special
assessment of $50. With respect to McCaskey, the sentencing
3

court asked if he wanted to withdraw his guilty plea; McCaskey's
attorney answered in the negative. The court adopted McCaskey's
PSR as to all undisputed issues and resolved McCaskey's objection
in favor of the PSR's recommendation that the Count II substance
should be considered as cocaine base for sentencing purposes.
The court sentenced McCaskey to sixty-five months imprisonment,
to be followed by a supervised release term of five years, and
ordered McCaskey to pay a special assessment of $50. The court
dismissed the remaining counts of the indictment as to both
defendants.
Both defendants now appeal. The district court appointed
new counsel on appeal for each of the defendants.
II. STANDARD OF REVIEW
The factual findings made by a district court in its
determination of a defendant's relevant conduct for sentencing
purposes are subject to the "clearly erroneous" standard of
review on appeal. United States v. Buckhalter, 986 F.2d 875, 879
(5th Cir.), cert. denied, 114 S. Ct. 203, and cert. denied, 114
S. Ct. 210 (1993); United States v. Lokey, 945 F.2d 825, 839 (5th
Cir. 1991). Factual findings made in support of a sentencing
determination must be supported by a preponderance of the
evidence. Buckhalter, 986 F.2d at 879. The district court's
sentence will be upheld so long as it results from a correct
application of the guidelines to factual findings that are not
clearly erroneous. United States v. Rivera, 898 F.2d 442, 445
4

(5th Cir. 1990). The district court's interpretations of the
guidelines, being conclusions of law, are reviewed de novo.
United States v. Madison, 990 F.2d 178, 182 (5th Cir. 1993),
cert. dismissed, 114 S. Ct. 339 (1993).
We note that the version of the sentencing guidelines in
effect from November 1, 1991, through October 31, 1992, applies
to the appellants because they were sentenced on September 2,
1992. United States v. Gross, 979 F.2d 1048, 1050-51 (5th Cir.
1992) (citing 18 U.S.C. § 3553(a)(4)).
III. LIONEL LEGARD
Legard raises several challenges to his sentence. He
contends, inter alia, that the sentencing court considered drug
transactions outside the scope of the conspiracy with which he
was charged in calculating his sentence, that the government
improperly enhanced his sentence by showing that a drug
transaction involved cocaine base instead of cocaine
hydrochloride as charged in the indictment, and that the
government failed to prove adequately that the substance involved
in Count II of the indictment was in fact cocaine base.
McCaskey, we note, has moved that we consider all of Legard's
arguments as they may apply to his sentence as well, and we have
granted his motion.
A. Computation of Legard's Base Offense Level
The sentencing court adopted Legard's PSR in determining his
sentence. The PSR recommended a finding of a base offense level
5

of twenty-six, based on the finding that all the drugs involved
in the incidents charged in Counts II through VI of the
indictment were relevant conduct under § 1B1.3 of the sentencing
guidelines. The PSR also recommended a two-level reduction for
acceptance of responsibility. Based on a total offense level of
twenty-four and Legard's criminal history category of IV, the PSR
stated that the appropriate guideline sentencing range was
seventy-seven to ninety-six months imprisonment. The sentencing
court adhered to the guideline sentencing range in sentencing
Legard to ninety months imprisonment.
1. Consideration of the Count V and VI
Transactions as Relevant Conduct
Legard concedes that the transactions charged in Counts II
through IV were correctly considered as relevant conduct in
determining his base offense level; he raises two challenges,
however, to the consideration of the transactions charged in
Counts V and VI as relevant conduct. First, he argues that the
sentencing court erred by applying § 1B1.3 of the sentencing
guidelines, entitled "Relevant Conduct (Factors that Determine
the Guideline Range)," in determining his sentence. See United
States Sentencing Commission, Guidelines Manual, § 1B1.3 (Nov.
1991).2 Second, he argues that, even if § 1B1.3 applies, the
transactions charged in Counts V and VI of the indictment still
should not be considered for sentencing purposes. Because the
2 All citations to the sentencing guidelines in this opinion
are to the version effective November 1, 1991, unless otherwise
indicated.
6

government does not object to our consideration of these
arguments, insofar as they present purely legal questions, we
will do so in spite of Legard's failure to object at sentencing
Legard first contends that the United States probation
officer who prepared his PSR, and the district court by adoption,
erred by applying § 1B1.3 of the sentencing guidelines to
determine his relevant conduct and his base offense level. In
his view, § 2D1.4, the drug conspiracy sentencing guideline,
alone should have been applied to determine his base offense
level. For support he cites § 1B1.3 itself, which provides that
it shall be used to determine a defendant's base offense level
only "where the guideline [applicable to the defendant's offense]
specifies more than one base offense level." U.S.S.G. §
1B1.3(a)(i); United States v. Warters, 885 F.2d 1266, 1274 (5th
Cir. 1989). Legard argues that § 2D1.4 specifies only one base
offense level, and that § 1B1.3 was therefore wholly inapplicable
to his sentencing.
Legard's argument is clearly wrong. In applying the
sentencing guidelines, the district court must first determine
the applicable offense guideline section from Chapter Two.
Rivera, 898 F.2d at 445 (citing U.S.S.G. § 1B1.1(a)). The
applicable guideline section for conspiracy to distribute cocaine
is § 2D1.4. That section, which was deleted from the guidelines
and consolidated with the guidelines applicable to the underlying
substantive offenses effective November 1, 1992, provides in its
entirety as follows:
7

(a)
Base Offense Level: If a defendant is convicted
of a conspiracy or an attempt to commit any
offense involving a controlled substance, the
offense level shall be the same as if the object
of the conspiracy or attempt had been completed.
U.S.S.G. § 2D1.4(a). Thus, the offense level derives from §
2D1.1(a)(3), which references § 2D1.1(c) (Drug Quantity Table).
United States v. Mitchell, 964 F.2d 454, 458 (5th Cir. 1992).
The Drug Quantity Table provides for a wide range of base offense
levels depending on the quantity of drugs attributable to the
offender. Thus, the guidelines specify more than one base
offense level for conspiracy to distribute cocaine, and the
conduct relevant to determining the offense level is governed by
§ 1B1.3(a). Id.
Legard next maintains that the application notes to § 2D1.4
make clear that § 2D1.4 alone governs the relevant conduct
determination in drug conspiracy cases. The relevant passages
from that commentary read as follows:
[i]f the defendant is convicted of a conspiracy that
includes transactions in controlled substances in
addition to those that are the subject of substantive
counts of conviction, each conspiracy transaction shall
be included with those of the substantive counts of
conviction to determine scale. . . . If the defendant
is convicted of conspiracy, see Application Note 1 to §
1B1.3 (Relevant Conduct).
U.S.S.G. § 2D1.4 cmt. n.1 (emphasis added). It has been settled
that the sentencing commission's commentary to the guidelines
must be given controlling weight by courts applying the
guidelines unless the commentary is violative of the Constitution
or federal statute, or plainly erroneous or inconsistent with the
8

guidelines themselves. Stinson v. United States, 113 S. Ct.
1913, 1919-20 (1993).
Legard's argument that § 2D1.4 precludes any reference to §
1B1.3 is undercut from the outset by the plain directive "[i]f
the defendant is convicted of conspiracy, see Application Note 1
to § 1B1.3 (Relevant Conduct)." U.S.S.G. § 2D1.4 cmt. n.1.
Nevertheless, he argues that § 2D1.4 and its commentary
specifically limit the transactions to be considered in
sentencing a conspiracy defendant to the substantive transactions
that formed a part of the defined conspiracy, apparently relying
on the first sentence of application note 1 for support. This
sentence, however, does not require the district court to
disregard § 1B1.3 and its commentary. Instead, we read the first
sentence of application note 1 as merely clarifying that, when a
defendant is convicted of conspiracy, his sentence shall be based
on all drug transactions that come under the label of "conspiracy
transactions," regardless of whether those transactions are the
subject of separate counts of conviction. The commentary to §
1B1.3 is directly relevant to the determination of whether given
transactions are "conspiracy transactions" because that
commentary defines conduct attributable for sentencing purposes
to a defendant convicted of conspiracy. U.S.S.G. § 1B1.3 cmt.
n.1. Neither the probation officer who prepared the PSR nor the
district court that adopted it erred as a matter of law by
relying on § 1B1.3 in determining Legard's sentence.
9

Legard's next argument, however, is more subtle. Even
conceding that Application Note 1 to § 1B1.3 must be consulted to
determine which transactions are "conspiracy transactions" within
the meaning of Application Note 1 to § 2D1.4, Legard submits that
§ 2D1.4 and its application notes prohibit the sentencing court
from considering an offender's relevant conduct under §
1B1.3(a)(2) unless such conduct also qualifies as a "conspiracy
transaction" under § 2D1.4. We do not agree, for reasons best
demonstrated by a careful review of the basic structure of the
guidelines themselves. The first task of a court applying the
guidelines is to determine the defendant's appropriate guideline
section from Chapter Two, in this case § 2D1.4. See Rivera, 898
F.2d at 445. That section prescribes no base offense level of
its own, but incorporates the multiple base offense levels of the
Drug Quantity Table of § 2D1.1(c). Because § 2D1.1(c) prescribes
multiple base offense levels on the basis of drug quantity, some
method of determining the quantity of drugs for which the
offender is responsible must be used. Plainly, Application Note
1 to § 2D1.4 directs the court to include all quantities of drugs
involved in conspiracy transactions, regardless of whether those
transactions are also the subjects of substantive counts of
conviction. Transactions are to be deemed "conspiracy
transactions" if they come within the broad parameters of
Application Note 1 to § 1B1.3.
The sentencing court's next step, in the normal course of
sentencing, would be to consider other relevant conduct by the
10

offender in keeping with § 1B1.3(a)(2), which directs him to
consider the offender's "acts and omissions that were part of the
same course of conduct or common scheme or plan as the offense of
conviction." Legard argues, however, that § 2D1.4 acts as a
limit on the type of relevant conduct a court may consider under
§ 1B1.3(a)(2). Specifically, he again emphasizes the application
note directing that "[i]f the defendant is convicted of a
conspiracy that includes transactions in controlled substances in
addition to those that are the subject of substantive counts of
conviction, each conspiracy transaction shall be included with
those of the substantive counts of conviction to determine
scale." U.S.S.G. § 2D1.4 cmt. n.1 (emphasis added). In his
view, this language is language of limitation; if conduct that
would ordinarily be relevant conduct under § 1B1.3(a)(2) is not a
"conspiracy transaction," Legard posits that there is a conflict
between § 2D1.4 and § 1B1.3(a)(2) that must be resolved in his
favor under the rule of lenity.
We do not believe that § 2D1.4 and § 1B1.3(a)(2) are in
conflict, nor do we read § 2D1.4 as imposing any limitations upon
the full operation of § 1B1.3(a)(2). First, § 1B1.3(a) appears
to apply in its entirety "[u]nless otherwise specified."
U.S.S.G. § 1B1.3(a). Nothing in § 2D1.4 or its commentary can
fairly be read to specify the inapplicability of § 1B1.3 or any
of its parts. Furthermore, the commentary to § 1B1.3(a)(2)
specifically contemplates the full operation of § 1B1.3(a)(2) in
conjunction with an attempt crime punishable under § 2D1.4:
11

[Section 1B1.3(a)(2)] applies to offenses of a
character for which § 3D1.2(d) would require grouping
of multiple counts, had the defendant been convicted of
multiple counts. For example, the defendant sells 30
grams of cocaine (a violation of 21 U.S.C. § 841) on
one occasion and, as part of the same course of conduct
or common scheme or plan, attempts to sell an
additional 15 grams of cocaine (a violation of 21
U.S.C. 846 [sic]) on another occasion. The defendant
is convicted of one count charging the completed sale
of 30 grams of cocaine. The two offenses (sale of
cocaine and attempted sale of cocaine), although
covered by different statutory provisions, are of a
character for which § 3D1.2(d) would require the
grouping of counts, had the defendant been convicted of
both counts. Therefore, subsection (a)(2) applies and
the total amount of cocaine (45 grams) involved is used
to determine the offense level.
§ 1B1.3 cmt. n.2. The illustration works equally well if the
crime of conspiracy, also prohibited by 21 U.S.C. § 846, is
substituted for the crime of attempt. We hold that § 1B1.3(a)(2)
operates in its usual fashion in determining the ultimate base
offense level of an offender in Legard's position. Thus, the
transactions alleged in Counts V and VI were properly considered
by the sentencing court if those transactions were "part of the
same course of conduct or common scheme or plan" as the
conspiracy alleged in Count I.
Legard next contends that, even under § 1B1.3(a)(2), the
sentencing court erred by considering the cocaine base
transactions charged in Counts V and VI of the indictment as
relevant conduct. This contention appears to have two distinct
components. On the one hand, he argues that the sentencing court
erred as a matter of law in holding that the transactions charged
in Counts V and VI could, under any circumstances, constitute
relevant conduct under the guidelines with respect to the
12

conspiracy defined in Count I. Additionally, he appears to
challenge the sentencing court's factual findings that those
transactions were relevant conduct in this particular case.
Legard bases these challenges on the following facts: (1) the
transactions charged in Counts V and VI occurred before the time
frame of the conspiracy defined in Count I; (2) the transactions
charged in Counts V and VI involved cocaine base, but the
conspiracy defined in Count I involved cocaine hydrochloride; and
(3) there was no evidence that the transactions charged in Counts
V and VI were connected with the conspiracy charged in Count I,
or, for that matter, with any conspiratorial activity whatever.
Addressing the purely legal questions first, we hold that
drug transactions occurring before the precise time frame of the
conspiracy for which a defendant is convicted may be considered
for sentencing purposes if those transactions otherwise satisfy
the criteria for relevant conduct prescribed by the guidelines.
We have so held in previous cases. E.g., Lokey, 945 F.2d at 830,
839-40; United States v. Woolford, 896 F.2d 99, 102-04 (5th Cir.
1990). We hold also that it is permissible for a sentencing
court to consider a defendant's transactions in one type of drug
even if his conviction was for conspiracy involving a different
type of drug, again assuming that those transactions otherwise
satisfy the criteria for relevant conduct prescribed by the
guidelines. This holding is supported by the background
commentary to § 1B1.3, which provides that,
in a drug distribution case, quantities and types of
drugs not specified in the count of conviction are to
13

be included in determining the offense level if they
were part of the same course of conduct or part of a
common scheme or plan as the count of conviction.
U.S.S.G. § 1B1.3 cmt. (backg'd) (emphasis added); see also
U.S.S.G. § 2D1.1 cmt. n.12 ("Types and quantities of drugs not
specified in the count of conviction may be considered in
determining the offense level."); United States v. Guest, 978
F.2d 577, 578-79 (10th Cir. 1992). The instant case is quite
similar to Guest, in which the defendant pleaded guilty to
conspiracy to distribute marijuana and additional charges against
him involving cocaine were dismissed. Id. at 578. The Tenth
Circuit affirmed the district court's decision to include the
amounts of cocaine distributed by the defendant as relevant
conduct for sentencing purposes. Id. at 579.
Of course, our holding that the guidelines permit a
sentencing court to consider transactions such as those charged
against Legard in Counts V and VI in a proper case does not
resolve the question of whether the instant case is a proper
case. That is, the question remains whether these two specific
transactions were part of the same course of conduct or common
scheme or plan as the offense of conviction -- the conspiracy.
This question is normally subject to review under the deferential
"clearly erroneous" standard because "the district court is
obviously in the best position to determine what constitutes
relevant conduct." Lokey, 945 F.2d at 839-40; see also United
States v. Cockerham, 919 F.2d 286, 289 (5th Cir. 1990) (finding
that relevant conduct analysis is "primarily factual, raising no
14

substantial issues of law"). Legard's failure to object to the
PSR or at the sentencing hearing, however, means that we may
review the district court's ruling only for plain error. United
States v. Pofahl, 990 F.2d 1456, 1479 (5th Cir.), cert. denied,
114 S. Ct. 266, and cert. denied, --- S. Ct. --- (1993). Plain
error is error so obvious and substantial that failure to notice
it would affect the fairness, integrity, or public reputation of
the judicial proceedings and would result in manifest injustice.
Id.
We find no plain error here. We have said that "[q]uestions
of fact capable of resolution by the district court upon proper
objection at sentencing can never constitute plain error."
United States v. Lopez, 923 F.2d 47, 50 (5th Cir.), cert. denied,
111 S. Ct. 2032 (1991). In the absence of any objection, the
district court simply adopted the recommendation of the probation
officer in the PSR that all transactions charged in Counts II
through VI were relevant conduct. Had Legard objected, the
district court could have resolved this question of fact at
sentencing. The district court did not commit plain error in
attributing the transactions charged in Counts V and VI to Legard
for sentencing purposes.
2. Sufficiency of the Evidence
as to Quantity of Drugs
Almost as an afterthought, Legard argues that the quantity
of drugs involved in the Count V transaction should not be
counted against him because the government failed to prove the
precise amount of cocaine base involved. The PSR simply lists
15

the total amount of cocaine base involved in the transactions
charged in Counts II, V, and VI (15.32 grams). Again, Legard's
failure to object at sentencing to the factual determination
regarding the quantity of cocaine base he distributed prevents
him from raising such objection now absent plain error. Because
the quantity of cocaine base distributed by Legard is "a question
of fact that the district court resolved at sentencing without
objection, we refuse to reach the merits of his claim." United
States v. Sparks, 2 F.3d 574, 589 (5th Cir. 1993) (citation
omitted), petition for cert. filed (U.S. Nov. 12, 1993) (No. 93-
6720).
3. Consideration of the Transaction
Charged in Count II as Involving Cocaine Base
The issue perhaps most hotly contested by the parties is
whether it was proper for the sentencing court to consider the
substance involved in the Count II transaction as cocaine base
rather than cocaine hydrochloride. Count II of the indictment
charged Legard and McCaskey with distribution of approximately
one-fourth of an ounce of cocaine hydrochloride on or about
November 4, 1991. The substance involved in that transaction,
however, was later determined by the government to be cocaine
base. The prosecution made no effort to correct the error, as it
might have done by filing a superseding indictment, but instead
simply notified the defendants just prior to sentencing of its
intent to prove that the Count II substance was actually cocaine
base. We note, however, that the defendants had notice of this
possibility at least as early as July 14, 1992, as revealed by
16

their motion for a continuance filed on that date. Offenses
involving cocaine base are treated much more severely under the
guidelines than offenses involving cocaine hydrochloride. See
U.S.S.G. § 2D1.1(c).
Legard argues that the district court violated his due
process rights by considering the Count II substance as cocaine
base instead of cocaine hydrochloride. He also argues that the
district court's action constitutes reversible error under the
doctrine of judicial estoppel. Finally, he argues that the
district court's finding that the substance was in fact cocaine
base was based on erroneously admitted scientific evidence.
Because McCaskey was also sentenced as though the Count II
substance were cocaine base rather than cocaine hydrochloride,
Legard's arguments are pertinent to him as well.
a. Due Process
First, Legard argues that his Fifth Amendment due process
rights were violated by the change in the government's position
regarding the composition of the substance involved in the Count
II transaction. Certainly a criminal defendant must be given
adequate notice of the charge he is to defend. Lokey, 945 F.2d
at 832. A defendant's conviction must be reversed if the
defendant establishes that the evidence offered by the government
at trial varied from what the government alleged in the
indictment and the variance prejudiced the defendant's
substantial rights. United States v. Jackson, 978 F.2d 903, 911
(5th Cir. 1992), cert. denied, 113 S. Ct. 2429, and cert. denied,
17

113 S. Ct. 3055 (1993). Legard contends that the same rules
should apply in the sentencing context, arguing that the
government effectively induced him to plead guilty on false
representations that Legard would be held accountable for a
conspiracy to distribute cocaine hydrochloride rather than
cocaine base.
We disagree with Legard's due process argument. In the
first place, "[c]onsideration of relevant conduct in the
selection of a defendant's sentence within the range of
permissible punishment established by Congress for his offense of
conviction is not the equivalent of prosecuting the defendant for
an offense additional to his offense of conviction." United
States v. Hoster, 988 F.2d 1374, 1378 (5th Cir. 1993). Thus, if
the government promises not to prosecute a defendant for certain
offenses in exchange for a guilty plea to a different offense,
the sentencing court may nevertheless consider the relevant but
uncharged conduct as long as the punishment selected is within
the statutory range for the offense of conviction. Id.; United
States v. Kinder, 946 F.2d 362, 367 (5th Cir. 1991), cert.
denied, 112 S. Ct. 1677, and cert. denied, 112 S. Ct. 2290
(1992). Legard does not contend that his sentence exceeds the
statutory range for the offense of conspiracy to distribute
cocaine hydrochloride. Another difficulty with Legard's position
is that at no point in the proceedings below did he seek to
withdraw his guilty plea. This failure notwithstanding, he now
claims that we should remand his case for resentencing on the
18

basis of a set of assumptions apparently contrary to the facts,
or, in the alternative, vacate his guilty plea.
Even granting that "the sentencing process, as well as the
trial itself, must satisfy the requirements of the Due Process
Clause," Gardner v. Florida, 430 U.S. 349, 358 (1977) (plurality
opinion); see also United States v. Anderson, 987 F.2d 251, 257
(5th Cir.) ("Due process only requires adequate notice of the
possibility that a defendant's sentence will be based on
quantity."), cert. denied, 114 S. Ct. 157 (1993), we do not
believe that fundamental fairness is violated by imposition of a
sentence based on the true nature of a defendant's conduct, at
least under the circumstances of this case. The defendants'
motion for a continuance filed July 14, 1992, reflected their
awareness significantly in advance of sentencing that the
government's tests revealed that cocaine base rather than cocaine
hydrochloride might have been involved in the case. Legard
argues that he should be entitled to rely upon the government's
"positive representations" that he would be sentenced only
according to the letter of the indictment; the plea agreement
signed by Legard and his attorney, however, contains no such
representation, and furthermore recites that the statements set
forth in the agreement "represent defendant's entire agreement
with the Government." It is settled in this circuit that a
sentencing court is not bound by the quantity of drugs mentioned
in an indictment, United States v. Sarasti, 869 F.2d 805, 806
(5th Cir. 1989), nor is it bound by a stipulation as to quantity
19

entered into by the defendant and the prosecution if other
information indicates a higher quantity. United States v.
Garcia, 902 F.2d 324, 326-27 (5th Cir. 1990). We therefore find
it difficult to credit Legard's claim that he relied on the
quantity or type of drugs specified in the indictment in pleading
guilty, particularly in light of the fact that he never attempted
to withdraw his plea. His due process claim is without merit.
b. Judicial Estoppel
Next, Legard argues that the decision to sentence him as
though the Count II transaction involved cocaine base violates
principles of judicial estoppel. This doctrine "prevents a party
from asserting a position in a legal proceeding that is contrary
to a position previously taken by him in the same or some earlier
legal proceeding." Rand G. Boyers, Comment, Precluding
Inconsistent Statements: The Doctrine of Judicial Estoppel, 80
Nw. U. L. Rev. 1244, 1244 (1986); cf. Mark J. Plumer, Note,
Judicial Estoppel: The Refurbishing of a Judicial Shield, 55 Geo.
Wash. L. Rev. 409, 435 (1987) ("Judicial estoppel is properly
defined as a bar against the alteration of a factual assertion
that is inconsistent with a position sworn to and benefited from
in an earlier proceeding."). The policies underlying the
doctrine include preventing internal inconsistency, precluding
litigants from "playing fast and loose" with the courts, and
prohibiting parties from deliberately changing positions
according to the exigencies of the moment. Boyers, supra, at
1245. We have recognized the applicability of this common law
20

doctrine in this circuit. Brandon v. Interfirst Corp., 858 F.2d
266, 268 (5th Cir. 1988). Generally the doctrine applies to
prevent a party from contradicting his own sworn statements. Id.
Legard argues that the government should be estopped from
asserting at sentencing that the substance involved in the Count
II transaction was cocaine base after the indictment alleged that
the substance was cocaine hydrochloride.
The government makes several responses to Legard's judicial
estoppel argument. Among these are the arguments that the
doctrine should not apply in criminal cases and that Legard
waived the doctrine by failing to object. See United States v.
Kattar, 840 F.2d 118, 129-30 n.7 (1st Cir. 1988) ("[A]s far as we
can tell, th[e] obscure doctrine [of judicial estoppel] has never
been applied against the government in a criminal proceeding.").
We address the government's second argument first, mindful as
ever that we will not review alleged errors raised for the first
time on appeal absent plain error. United States v. Ayers, 946
F.2d 1127, 1131 (5th Cir. 1991) (citing Fed. R. Crim. P. 52(b)).
Plain error is error that is so obvious and substantial that
failure to notice and correct it would affect the fairness,
integrity, or public reputation of the judicial proceedings. Id.
The district court's failure to prevent the prosecution from
changing its position regarding the Count II substance, based on
an obscure doctrine that has apparently never been applied in a
criminal case, and without any objection from the defense, is not
an error "so obvious and substantial" as to rise to the level of
21

plain error. In the civil context, we have strictly required
litigants to raise judicial estoppel according to the pleading
requirements governing affirmative defenses under Federal Rule of
Civil Procedure 8(c). United States ex rel. Am. Bank v. C.I.T.
Constr. Inc., 944 F.2d 253, 258-59 (5th Cir. 1991). We indicated
that, "[a]bsent a flagrant threat to the judicial process," this
type of waiver will not be disregarded on appeal. Id. at 258.
Similarly, Legard's complete failure to raise judicial estoppel
below requires him to present an "extraordinary case," id., if we
are to overlook his waiver.
Legard has not demonstrated that this is an extraordinary
case in which his waiver should be excused. Our opinion in
C.I.T. Construction reflects that it is the "risk of inconsistent
court determinations" that is the primary "threat to the judicial
process" that might justify our disregard of a waiver of a
judicial estoppel argument. Id. at 258-59; see also Plumer,
supra, at 434 ("The purpose of judicial estoppel . . . is to
protect the integrity of a court's internal processes and thereby
to prevent abuse of the judicial process by unscrupulous
litigants. Thus its primary concern is with courts' processes,
not parties' rights."). Assuming without deciding that judicial
estoppel can apply to the government in criminal cases, we
believe that the underlying purposes of the doctrine are the same
in both civil and criminal litigation -- to protect the integrity
of the judicial process and to prevent unfair and manipulative
use of the court system by litigants. Cases have suggested that
22

the integrity of the judicial process is safeguarded mainly by
preventing a party from abandoning a position he "successfully
maintained" in a prior proceeding or earlier in the same
proceeding. C.I.T. Constr., 944 F.2d at 258 (citing USLIFE Corp.
v. United States Life Ins. Co., 560 F. Supp. 1302, 1305 (N.D.
Tex. 1983)); see also 18 Charles A. Wright et al., Federal
Practice and Procedure § 4477 (1981) (identifying the scenario
addressed by judicial estoppel as "the prospect that an adept
litigant may succeed in proving a proposition in one suit, and
then succeed in proving the opposite in a second"). The mere
fact that a United States Magistrate Judge signed the criminal
complaint charging the defendants with conspiracy does not
suggest that the government ever "successfully maintained" that
the defendants were distributing cocaine hydrochloride rather
than crack cocaine in the Count II transaction. Although the
prosecution's conduct in this case was perhaps less than
exemplary, it was not so egregious that we may disregard Legard's
failure to raise his judicial estoppel argument before the
district court at the appropriate time. We hold that Legard has
waived his challenge based on judicial estoppel. Neither his due
process claim nor his judicial estoppel claim entitles him to
have his guilty plea vacated.
c. Reliability of Scientific Evidence
Used to Prove the Composition of the Count II Substance
Legard challenges the sentencing court's factual finding
that the substance distributed in the Count II transaction was
cocaine base rather than cocaine hydrochloride. The government
23

concedes that Legard preserved this issue for review by
proffering his own testimony that the substance was in fact
cocaine hydrochloride. We review the sentencing court's findings
of fact for clear error. Buckhalter, 986 F.2d at 879.
The evidence in support of the sentencing court's finding
may be summarized as follows. The arresting officer, Agent Chad
Scott, testified at the sentencing hearing that he received crack
cocaine from Legard and McCaskey during the transaction charged
in Count II. This testimony was based, not on chemical analysis,
but on Agent Scott's personal knowledge of the different
appearances of cocaine hydrochloride and cocaine base. He
admitted that he had no training in the chemical differences
between the two substances. The only other government witness at
sentencing was forensic scientist Charles Butler, an employee of
the Louisiana State Police Crime Lab at Baton Rouge. He
testified that the substance received by Agent Scott during the
Count II transaction was cocaine base, based on tests conducted
using a machine called a Fourier Transform Infrared
Spectrophotometer (FTIR).
Legard attempts to undermine the sentencing court's finding
that the substance involved in the Count II transaction was
cocaine base by attacking the scientific evidence introduced by
the government. The defendants' attorney cross-examined Butler
at length about the use of the FTIR. It appears that the FTIR
identifies an unknown substance by subjecting it to a laser beam
and creating a graph of the spectrum thereby produced; the graph
24

may then be compared to reference graphs derived from known
substances to determine the composition of the unknown substance.
The cross-examination revealed that lab technicians calibrated
the FTIR every morning by testing a reference polystyrene film
and comparing the graph produced by the FTIR to a reference graph
provided by the manufacturer of the FTIR. The cross-examination
also revealed that the substance involved in the Count II
transaction was identified as cocaine base by testing it in the
FTIR and comparing the graph produced by the machine to a
reference graph derived from one of several unidentified
reference books. In sum, Legard argues that the sentencing court
abused its discretion regarding the introduction of the evidence
derived from the FTIR testing because the foundation for the
admissibility of that evidence was inadequate as a matter of law.
We note first that the appropriate standard regarding the
admissibility of evidence at sentencing is substantially lower
than that governing admissibility at trial. Specifically, "[i]n
resolving any reasonable dispute concerning a factor important to
the sentencing determination, the court may consider relevant
evidence without regard to its admissibility under the rules of
evidence at trial, provided that the information has sufficient
indicia of reliability to support its probable accuracy."
U.S.S.G. § 6A1.3(a). Certainly the "austere" Frye test, to which
Legard alludes in his brief and which has been held by the
Supreme Court to be superseded by the adoption of the Federal
Rules of Evidence, Daubert v. Merrell Dow Pharmaceuticals, Inc.,
25

113 S. Ct. 2786, 2792-94 (1993), has no application in
sentencing. Thus, the government's failure to establish that the
FTIR test is sufficiently established to have gained general
acceptance in the particular field to which it belongs is not
fatal.
In our opinion, the sentencing court's acceptance of
Butler's testimony based on the FTIR results was not clearly
erroneous. The fact that Butler was unable to produce a
certificate from the manufacturer regarding the accuracy of the
reference polystyrene film used to calibrate the machine does not
render the test unreliable. The reliability of the test and
identification was sufficiently established by Butler's testimony
that the FTIR machine was tested and calibrated on a daily basis
using reference materials provided by the machine's manufacturer
and that the machine showed the Count II substance to be cocaine
base. It may be noted that scientific certainty is not
absolutely required for a fact-finder to determine the chemical
composition of an alleged controlled substance, even at a
defendant's criminal trial. See United States v. Uwaeme, 975
F.2d 1016, 1019 (4th Cir. 1992); United States v. Schrock, 855
F.2d 327, 334 (6th Cir. 1988); United States v. Osgood, 794 F.2d
1087, 1095 (5th Cir.), cert. denied, 479 U.S. 994 (1986).
Particularly under the lower "sufficient indicia of reliability"
standard that governs at sentencing, the testimony of Butler
based on the FTIR results was admissible to prove the composition
of the Count II substance. Considering this evidence in
26

conjunction with that presented in Agent Scott's testimony, we
conclude that the district court did not clearly err in
determining that the substance involved in the Count II
transaction was in fact cocaine base.
B. Supervised Release
Legard correctly maintains, and the government concedes,
that the district court exceeded the statutory maximum in
imposing a five-year term of supervised release. The defendants
pleaded guilty to violations of 21 U.S.C. § 846, and as a result
they were subject to the penalties found in 21 U.S.C. §
841(b)(1)(C). Section 841(b)(1)(C) provides for a maximum
sentence of twenty years imprisonment, and so violation of that
statute constitutes a Class C felony under 18 U.S.C. §
3559(a)(3). Three years is the maximum authorized term of
supervised release for a Class C felony under 18 U.S.C. §
3583(b)(2). United States v. Gracia, 983 F.2d 625, 630 (5th Cir.
1993). Because 21 U.S.C. § 841(b)(1)(C) requires a minimum of
three years supervised release, there is no need for a new
sentencing proceeding. In the interest of judicial economy, our
proper course is to modify the district court's judgments to
impose the statutorily mandated three-year term of supervised
release on both defendants. Id.
C. Ineffective Assistance of Counsel and
Conflict of Interest
Finally, Legard claims that his trial counsel rendered him
ineffective assistance at sentencing by favoring McCaskey's
defense to Legard's prejudice. "In this circuit, the general
27

rule is that a claim of ineffective assistance of counsel cannot
be resolved on direct appeal unless it has first been raised
before the district court." United States v. Garza, 990 F.2d
171, 178 (5th Cir.) (quoting United States v. Kinsey, 917 F.2d
181, 182 (5th Cir. 1990)), cert. denied, 114 S. Ct. 332 (1993).
Exception to this general rule is made only if the record is
sufficiently developed with respect to the merits of the claim.
Id. Legard argues that the record is sufficiently developed to
demonstrate that his counsel was ineffective because there was an
actual conflict of interest in the representation of both him and
McCaskey by a single attorney.
The standards governing claims of ineffective assistance of
counsel and conflict of interest are well-known. A defendant
claiming ineffective assistance of counsel must show that
counsel's actions were deficient, falling below an objective
standard of reasonableness, and that the defendant was prejudiced
as a result. United States v. Gipson, 985 F.2d 212, 215 (5th
Cir. 1993). An actual conflict of interest exists whenever one
defendant stands to gain significantly by advancing plausible
arguments that are damaging to the cause of a co-defendant whom
counsel is also representing. United States v. Abner, 825 F.2d
835, 842 (5th Cir. 1987) (citing Cuyler v. Sullivan, 446 U.S.
335, 348 (1980)). Prejudice is presumed with respect to a
defendant's ineffective assistance of counsel claim only if the
defendant demonstrates that counsel actively represented
conflicting interests and that an actual conflict of interest
28

adversely affected counsel's performance. Id. (citing Strickland
v. Washington, 466 U.S. 668, 692 (1984)). "Adverse effect" is a
less onerous standard, of course, than the outcome-determinative
"prejudice" standard. Abner, 825 F.2d at 843.
Legard's conflict of interest claim is based, in essence, on
one action by his and McCaskey's joint counsel. At sentencing,
counsel submitted to the court a memorandum arguing that the
government had failed to show that McCaskey knew that the
substance involved in the Count II transaction was cocaine base
instead of cocaine hydrochloride. For whatever reason, counsel
submitted this memorandum on McCaskey's behalf alone; the
government speculates that this argument would have been less
plausible if advanced on Legard's behalf because of his two prior
transactions in cocaine base as alleged in Counts V and VI.
Legard contends that the "clear message" of counsel's memorandum
was that McCaskey did not know that the Count II substance was
cocaine base, but Legard did. Legard also argues that he
suffered actual and presumed prejudice to the extent that counsel
failed to preserve errors and protect his right to appeal.
We are not prepared to say that the record is sufficiently
developed at this stage in the proceedings to allow meaningful
appellate review of Legard's ineffective assistance of counsel
claim or for us to determine whether there was an actual conflict
of interest. Therefore, we decline to resolve these issues on
appeal. Legard remains free to pursue his claim for ineffective
assistance of counsel in accordance with 28 U.S.C. § 2255.
29

Garza, 990 F.2d at 178; see also United States v. Higdon, 832
F.2d 312, 313-14 (5th Cir. 1987) (noting that review of claims of
inadequate representation are rarely considered for the first
time on direct appeal because no opportunity existed in the
district court to develop the record on the merits of the
allegations), cert. denied, 484 U.S. 1075 (1988).
IV. BOBBY RAY MCCASKEY
The sentencing court adopted McCaskey's PSR in determining
his sentence. The PSR recommended a finding of a base offense
level of twenty-six, based on the finding that the cocaine base
distributed in the Count II transaction and the cocaine
hydrochloride distributed in the Count III and IV transactions
should be attributed to McCaskey as relevant conduct under §
1B1.3 of the sentencing guidelines. The PSR also recommended a
two-level reduction for acceptance of responsibility. Based on a
total offense level of twenty-four and McCaskey's criminal
history category of III, the PSR concluded that the appropriate
guideline sentencing range was sixty-three to seventy-eight
months imprisonment. The sentencing court adhered to the
guideline sentencing range in sentencing McCaskey to sixty-five
months imprisonment.
At the sentencing hearing, counsel filed on McCaskey's
behalf a memorandum arguing that McCaskey should be sentenced as
though the Count II transaction involved cocaine hydrochloride
instead of cocaine base because McCaskey did not know that the
30

substance distributed was cocaine base and had no intent to
distribute cocaine base. The sentencing court implicitly
rejected this argument by adopting the PSR. McCaskey renews his
argument on appeal.
A brief review of the evidence regarding the Count II
transaction is in order. At the sentencing hearing, the
arresting agent, Officer Chad Scott, testified that he and Legard
met McCaskey at a bar called Nanny's Place in Hammond, Louisiana.
Legard got out of the car in which he and Officer Scott were
sitting, went to McCaskey, got the drugs, and returned to the car
where Officer Scott paid him $350. Legard then left with
McCaskey. Officer Scott testified that he recognized the
substance as cocaine base and that he had negotiated the purchase
with McCaskey. The PSR, derived from McCaskey's own account of
the transaction, seems to vary from Officer Scott's account.
According to the PSR, an undercover agent approached Legard and
McCaskey seeking to buy cocaine. The defendants agreed to sell
him some, because they had a friend from whom they had purchased
cocaine before. Legard was the one who procured the cocaine and
brought it to McCaskey. According to the PSR, "McCaskey took
some cocaine from the bag for his own use and then sold the
remaining cocaine to the undercover agent." McCaskey did not
object to this portion of the PSR.
We repeat the standards for holding a defendant responsible
for relevant conduct under the guidelines. A defendant shall be
sentenced according to "all acts and omissions committed or aided
31

and abetted by the defendant, or for which the defendant would be
otherwise accountable, that occurred during the commission of the
offense of conviction, . . . or that otherwise were in
furtherance of the offense." U.S.S.G. § 1B1.3(a)(1). Conduct
for which a defendant is "otherwise accountable" includes conduct
of others in furtherance of the execution of the jointly-
undertaken criminal activity that was reasonably foreseeable by
the defendant. U.S.S.G. § 1B1.3 cmt. n.1. The defendant shall
also be sentenced according to his acts and omissions "that were
part of the same course of conduct or common scheme or plan as
the offense of conviction." U.S.S.G. § 1B1.3(a)(2). Again, "in
a drug distribution case, quantities and types of drugs not
specified in the count of conviction are to be included in
determining the offense level if they were part of the same
course of conduct or part of a common scheme or plan as the count
of conviction." U.S.S.G. § 1B1.3 cmt. (backg'd) (emphasis
added). We apply the "clearly erroneous" standard of review to
the sentencing court's determination of relevant conduct. Lokey,
945 F.2d at 839-40.
McCaskey relies heavily on the case of United States v.
Rivera, 898 F.2d 442 (5th Cir. 1992). In that case, defendant
Elias Rivera pleaded guilty to distributing .28 grams of heroin;
he was sentenced, however, on the basis of 224.47 grams of
heroin. Id. at 445. The larger amount was based on the total
amount of heroin involved in a large conspiracy. At sentencing,
Rivera objected to the determination that he should be sentenced
32

according to the total amount of heroin involved in the
conspiracy because he had no knowledge of any heroin distribution
by his co-defendants. Id. We vacated Rivera's sentence because
the record contained "no factual finding that Rivera was part of
a jointly-undertaken scheme to distribute heroin with any of his
co-defendants other than Perez [who made the .28 grams of heroin
available to Rivera]." Id. at 446. In the absence of findings
that Rivera knew or should have known of the heroin distributions
by his co-defendants, and in the absence of a finding of a joint
undertaking or plan, we held that Rivera's sentence could not be
based on amounts of heroin other than those he personally
distributed. Id.
Rivera is inapposite because the record in the instant case
does contain evidence that McCaskey was personally involved in
the transaction for cocaine base. The sentencing court adopted
the recommended findings of fact in the PSR to which McCaskey did
not object, and those findings included McCaskey's account of the
Count II transaction. McCaskey's account indicated that he was
personally involved in the transaction and in fact used some of
the substance that he and Legard were distributing on that
occasion. In light of the evidence available to the sentencing
court, we are in no position to hold that the determination that
McCaskey's distribution of cocaine base was relevant conduct was
clearly erroneous.
33

V. CONCLUSION
The sentences imposed by the district court are MODIFIED to
impose three-year terms of supervised release on both Legard and
McCaskey. As so modified, the sentences are AFFIRMED and the
matters are returned to the district court for correction of the
judgments and commitment orders.
34