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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 92-4819
Summary Calendar
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ALEX BRYANT,

Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
_________________________________________________________________
(May 6, 1993)
Before KING, DAVIS and WIENER, Circuit Judges.
PER CURIAM:
Alex Bryant was charged with three counts of distribution
of crack cocaine in violation of 21 U.S.C. § 841(a)(1). A jury
convicted Bryant of all three counts. The district court
sentenced Bryant to concurrent terms of 168 months of
imprisonment on all counts to be followed by four years of
supervised release. Bryant appeals both his conviction and
sentence. Finding no error, we affirm.

The testimony and evidence at trial revealed the following.
Edward Joseph, an undercover agent for the Bossier City,
Louisiana Police Department testified that on December 4, 1991,
working with a confidential informant, he arranged to purchase
crack cocaine from Bryant at a local gas station. Bryant, whom
Joseph positively identified in court, drove into the parking lot
in a blue and gray Chevrolet S-10 pickup truck later identified
as belonging to Bryant's brother-in-law.1 Bryant was accompanied
by two other men, one of whom was Bryant's co-defendant, Marquale
Dillard. Joseph got out of his vehicle and met Bryant and
Dillard at the rear of their pickup truck. The episode was
witnessed by a surveillance police officer.
Joseph discussed the amount of cocaine he would buy and the
price. Bryant then decided to have Joseph sit inside the truck
in the driver's seat, while Bryant sat in the passenger's seat
and Dillard acted as lookout. Once inside the pickup, Bryant
produced a small plastic baggie containing a half-ounce of
cocaine. Joseph examined the baggie and paid Bryant $600, the
agreed-upon price. Bryant counted the money and exchanged pager
numbers with Joseph. On the following day, Joseph paged Bryant
and arranged to meet him at the same location. Bryant showed up
in the same small pickup truck with his companion Dillard.
Joseph got out of his vehicle and told Bryant and Dillard at the
gas island that he was ready to do business. Because of the
1 Bryant's brother-in-law Fred Hicks testified at trial that
the truck belonged to him and was loaned to Bryant.
3

number of people mingling in the parking lot, the parties agreed
to go into the restroom. Once inside the restroom, Bryant
produced a small baggie containing crack cocaine. Joseph then
counted out another $600 in cash.
On the afternoon of September 13, 1991, Joseph received a
page from Bryant. Joseph called the beeper number and asked
Bryant whether he could provide him with an ounce of cocaine.
Bryant responded that he could supply that amount. Because
Joseph was not equipped to consummate the deal at that moment,
however, he told Bryant to call him back around 5:00 p.m. Bryant
paged Joseph at that time. Joseph returned the call and the
conversation was tape-recorded by police.2 Bryant and Joseph
agreed to meet at a local Wal-Mart parking lot. After Bryant,
his partner, and the informant arrived at the parking lot, Bryant
walked over to Joseph's car and produced two plastic baggies
containing two half-ounces of cocaine. Joseph weighed the
baggies using an electronic scale and was satisfied with the
amount. $1000 changed hands.
After Joseph gave Dillard the money, Dillard got in Joseph's
car and discussed the possibility of selling Joseph four more
ounces of cocaine on the following Friday. They also discussed
the possibility of Joseph purchasing a kilo of cocaine in the
immediate future. Dillard responded that Bryant would have to
get in touch with his supplier in Los Angeles before he could
2 The tape was played before the jury, and Bryant's voice
was identified.
4

give a price. At trial, the Government offered into evidence the
packets of cocaine that Joseph had purchased from Bryant on
September 4, 5, and 13, 1991. Narcotics analysis confirmed that
the baggies contained crack cocaine which cumulatively weighed
47.37 grams.
II.
a) The district court's failure to remove two jurors for cause
Bryant first argues that the court erred when it refused to
remove for cause two prospective jurors who had close connections
with law enforcement. Bryant challenged prospective juror Vera
Bodine for cause after she stated that her husband was the chief
of police of Mooringsport, Louisiana, for the previous twenty-one
years. Bryant also challenged prospective juror Ray Ramsey for
cause after he stated that he had been Chief Criminal Deputy
Sheriff in Desoto Parish for sixteen years before he retired in
1980. Bryant also objected to Ramsey because his father was a
murder victim. Bryant used two of his ten peremptory challenges
on these prospective jurors after the district court denied his
challenges for cause, and was left with no remaining peremptories
at the close of voir dire.
We must determine whether the district court erred by
refusing to disqualify the two prospective jurors for cause. It
is well-established that "[t]he judge's determination as to
actual bias by jurors is reviewed for manifest abuse of
discretion." Mendoza-Burciaga, 981 F.2d at 197-98; see also
Mu'min v. Virginia, 111 S.Ct. 1899, 1906 (1991) (appellate courts
5

must afford wide discretion to trial courts in conducting voir
dire of jurors). "`[T]he adequacy of voir dire is not easily
subject to appellate review. . . . [The trial judge] must reach
conclusions as to impartiality and credibility by relying
on . . . evaluations of demeanor evidence and of responses to
questions.'" Mu'min, 111 S. Ct. at 1904 (quoting Rosales-Lopez
v. United States, 451 U.S. 182, 188, 101 S.Ct. 1629, 68 L.Ed.2d
22 (1981)).
The record reflects that the district court asked
Bodine if her husband's position as chief of police would affect
her ability to be fair and impartial in a criminal case. Bodine
responded that she could be fair and impartial, and the court
credited her response. Likewise, Ramsey stated that his
experience as a sheriff's deputy would not interfere with his
being a fair and impartial juror. When further questioned about
the murder of his father, Ramsey stated that he was a young child
at the time, and had no contemporaneous memory of the murder, and
possessed no general bias against criminal defendants. The
district court accepted this response. Bryant fails to show that
the court abused its discretion in denying his challenges for
cause.3
3 Because Bryant's two challenges for cause were meritless,
we need not reach the question of whether any error in the
district court's failure to grant Bryant's two challenges was
harmless because Bryant failed to show that any jurors actually
seated were objectionable. Numerous cases in this and other
circuits have held that a federal criminal defendant may properly
raise a challenge to the district court's refusal to remove
members of the venire for cause simply by exhausting all of his
peremptories in removing such objectionable members. See United
States v. Nell, 526 F.2d 1223, 1229 (5th Cir. 1976) ("[A]s a
general rule it is error for a court to force a party to exhaust
6

b) The district court's limitation of Bryant's cross-examination
of a prosecution witness

Bryant next asserts that the court denied him his Sixth
Amendment right of confrontation because he was not permitted to
cross-examine a policeman regarding a confidential informant's
motivation for his involvement in the police investigation. The
trial court sustained the Government's objection to the testimony
after concluding that it was not relevant.
Our review of this claim requires significant deference to
the district court. "Limitation of the scope and extent of
cross-examination is a matter committed to the sound discretion
of the trial judge reviewable only for a clear abuse of that
discretion." United States v. Merida, 765 F.2d 1205, 1216 (5th
Cir. 1985). Additionally, the district court has "wide
discretion in determining relevance" and this court does "not
overrule it absent an abuse of discretion." United States v.
Pena, 949 F.2d 751, 757 (5th Cir. 1991).
his peremptory challenges on persons who should be excused for
cause, for this has the effect of abridging the right to exercise
peremptory challenges."); see also United States v. Dozier, 672
F.2d 531, 547 (5th Cir. 1982); Celestine v. Blackburn, 750 F.2d
353, 360 (5th Cir. 1984); United States v. Ricks, 776 F.2d 455,
461-62 & n.9 (4th Cir. 1985); United States v. Daly, 716 F.2d
1499, 1507 (9th Cir. 1983); United States v. Butera, 677 F.2d
1376, 1384 (11th Cir. 1982); but see United States v. Mendoza-
Burciaga, 981 F.2d 192, 197-98 (5th Cir. 1992) ("Mendoza-Burciaga
makes no claim that he was prejudiced by having to use the
peremptory challenge to strike the [prospective juror whom he
unsuccessfully challenged for cause] rather than someone else. .
. . [T]here was no harm . . . as the [juror challenged for
cause] never served."). See also Burlington N. R.R. v.
Brotherhood of Maintenance of Way Employees, 961 F.2d 86, 89 (5th
Cir. 1992) (panel decision binding in circuit unless overruled by
en banc court or Supreme Court).
7

Bryant's attorney stated that he hoped on cross-examination
to establish that the informant had been arrested on drug-related
charges and was trying to help himself by working with police.
Bryant's attorney failed, however, to show how this information
was probative of whether Bryant was guilty.4 We observe that it
was not as if the informant's testimony was significant evidence
in the prosecution's case against Bryant; indeed, the informant
remained confidential and did not even appear at trial. Rather,
two policemen who testified at trial were eyewitnesses to all of
Bryant's illegal activities. Bryant, therefore, fails to show
that the district court abused its discretion when it prohibited
him from cross-examining one of the policeman regarding the
confidential informant's motivation.
c) Was there constitutionally sufficient evidence?
Bryant challenges the sufficiency of the evidence to support
his conviction, arguing that the only substantial evidence
linking him to the transactions at issue was the testimony of
Edward Joseph, the undercover policeman to whom he sold the
cocaine, and Michael Kellum, an undercover agent who conducted
surveillance. Bryant argues that the Government could have
adduced ten additional items of evidence at trial linking him to
the offense, but failed to do so -- which supposedly casts doubt
on the sufficiency of the eyewitness testimony upon which the
4 Furthermore, we note that in his brief, Bryant concedes
that during the questioning of the policeman outside the presence
of the jury, "most of the responses were not beneficial to the
defendant . . . ."
8

Government relied. Bryant further contends that the agents'
testimony is not credible because significant time passed between
the alleged transactions and the in-court identifications, such
that the agents could have misidentified him.5 At trial, Bryant
moved for acquittal at the close of the Government's case, which
was denied, and then rested without submitting any evidence on
his behalf.
In deciding the sufficiency of the evidence, this court
determines whether, viewing the evidence and the inferences that
may be drawn from it in the light most favorable to the verdict,
a rational jury could have found the essential elements of the
offense beyond a reasonable doubt. See Jackson v. Virginia, 443
U.S. 307, 319 (1979); Glasser v. United States, 315 U.S. 60, 80
(1942); United States v. Pruneda-Gonzalez, 953 F.2d 190, 193 (5th
Cir.), cert. denied, 112 S.Ct. 2952 (1992).
"A conviction for distributing cocaine requires proof that
the defendant (1) knowingly (2) distributed (3) cocaine." United
States v. Gordon, 876 F.2d 1121, 1125 (5th Cir. 1989); see also
21 U.S.C. § 841 (a)(1). A detailed summary of the testimony and
evidence at trial is contained in supra Part I. Viewing it in
the light most favorable to the verdict, we firmly believe that a
rational jury could have found the essential elements of
5 The policeman admitted that, between Bryant's trial and
the sting operation involving Bryant, the policeman participated
in as many as 100 other undercover transactions involving young
black males such as Bryant. Bryant also points out that total
time in which the eyewitnesses viewed him during the three
transactions was approximately 20 minutes.
9

distribution of cocaine beyond a reasonable doubt. Bryant's
argument that we should find the evidence insufficient because
other evidence could have been introduced -- besides the police
eyewitnesses, the tape, Fred Hicks' testimony about the pick-up
truck, and the cocaine itself -- is meritless. While other
evidence could have been introduced at trial by the prosecution,
we believe that the testimony and evidence actually introduced
was quite sufficient to prove Bryant's guilt beyond a reasonable
doubt.6
d) Did the district court err in considering "relevant conduct"
under the Sentencing Guidelines?
Bryant next argues that the court erred when it considered
an unadjudicated extraneous offense as "relevant conduct" in
computing his base offense level under the United States
Sentencing Guidelines.7 The probation officer's presentence
investigation report (PSI) noted that on November 15, 1991, a
6 Bryant has not raised a separate due process claim
challenging the reliability of the two policemen's in-court
eyewitness identifications, cf. Manson v. Brathwaite, 432 U.S. 98
(1977); Neil v. Biggers, 409 U.S. 188 (1972); Simmons v. United
States, 390 U.S. 377 (1968), but instead challenges the
possibility of misidentification as part of his sufficiency
claim. Even if he had raised such a separate claim, we would
reject it. There were two eyewitnesses in the instant case, both
trained law enforcement officers, who viewed the defendant on
numerous occasions for approximately twenty minutes. While the
officers may also have viewed many other persons who shared
Bryant's approximate age, race, and gender between the time of
the crime and trial, we simply cannot accept Bryant's argument
that the officers were incapable of reliably remembering a
particular individual whom they were carefully targeting in a
sting operation.
7 See U.S.S.G. § 1B1.3 (discussing "relevant conduct" that
may be considered during sentencing).
10

package containing 12.34 grams of crack cocaine addressed to "J.
Hicks" at 1616 Templeman Street, Princeton, Louisiana, arrived at
the post office in Princeton. The PSI added the 12.34 grams of
cocaine in the package to the 47.37 grams for which Bryant was
convicted of distributing, increasing Bryant's base offense level
from 30 to 32.
At the pre-sentencing hearing, Bryant contested the PSI's
findings regarding this relevant conduct. Although Bryant by
that point admitted that he was guilty of the three counts of
conviction, he refused to admit his guilt regarding the relevant
conduct. He claimed that he never lived at 1616 Templeman and
that he had no knowledge of the package being shipped to that
address. Michael Hembree, a special agent with the Drug
Enforcement Administration, testified that the package's return
addressee was a "Jasmine Bryant" from Compton, California, but
that the return address listed proved to be fictitious.
Appellant Bryant admitted that he moved to Louisiana from
Compton,8 but denied knowing a Jasmine Bryant. He further
admitted that he had a brother-in-law named Fred Hicks, and that
Fred Hicks's father's name is Johnny Hicks. Ada Smith testified
she was living at 1616 Templeman at the time the package was
mailed and had seen Bryant at her residence talking to her
daughter. Two weeks before the package arrived, Bryant told
Smith that he was expecting some clothes from California that
8 Compton is a part of greater Los Angeles. In his
conversations with undercover police, Bryant repeatedly referred
to Compton and Los Angeles synonymously.
11

would be arriving at 1616 Templeman. Soon thereafter Smith
received a yellow slip in her mailbox indicating a package had
arrived for "J. Hicks." Smith also testified that an
unidentified person had relayed a message that a package would be
delivered to her house containing something illicit, which she
should not accept. The district court overruled Bryant's
objection to the PSI's finding that the package was intended for
Bryant and that it was part of his on-going drug trafficking
operations.
In determining a defendant's sentence, a district court may
consider "relevant conduct," which includes "quantities of drugs
not specified in the count of conviction if they were part of the
same course of conduct or part of a common scheme or plan as the
count of conviction." United States v. Mir, 919 F.2d 940, 943
(5th Cir. 1990) (internal quotations and citations omitted); see
also U.S.S.G. § 1B1.3(a)(2). Particularly in drug cases, this
circuit has broadly defined what constitutes "the same course of
conduct" or "common scheme or plan." See, e.g., United States v.
Bethley, 973 F.2d 396, 400-401 (5th Cir. 1992) (defendant's drug-
related activities within six-month period considered part of
"common scheme or plan"); United States v. Moore, 927 F.2d 825,
827-28 (5th Cir. 1991) (defendant's drug-related activities in
January and June of same year considered part of "common scheme
or plan"); Mir, 919 F.2d at 943-45 (defendant's drug-related
activities that were seven months apart considered part of
"common scheme or plan").
12

Rather than being bound by the reasonable doubt standard
that operates at the guilt-innocence phase of a trial, see supra
Part II.c., a district court during the sentencing phase need
only find by a preponderance of evidence that the defendant
committed the "relevant conduct." See Mir, 919 F.2d at 943.
Thus, specific factual findings regarding relevant conduct are
reviewed on appeal only for clear error. See United States v.
Pierce, 893 F.2d 669, 678 (5th Cir. 1990); see generally Anderson
v. City of Bessemer City, 470 U.S. 562, 573 (1985) (a factual
finding is clearly erroneous only if appellate court is, after
viewing the record as a whole, "left with the definite and firm
conviction that a mistake has been made").
Given the evidence of Bryant's obvious connection with the
package, the trial testimony from one of the undercover police
that Bryant stated that his regular drug supplier was located in
Los Angeles, and the temporal proximity of the relevant conduct
to the crimes of conviction, we believe that the district court
did not clearly err in finding that the package of cocaine
intercepted by police was part of Bryant's larger drug
trafficking operation. Thus, the court properly considered the
additional 12.34 grams during sentencing.
e) Did the district court err in computing Bryant's criminal
history points?
Finally, Bryant argues that the district court erred in
computing his criminal history points pursuant to U.S.S.G. §
4A1.2(a)(2). Specifically, Bryant argues that his three prior
13

convictions should not have resulted in a total of nine criminal
history points, but instead should have been treated as one
sentence and assigned only three points. We review the district
court's application of the Sentencing Guidelines de novo. See
United States v. White, 945 F.2d 100, 101 (1991).
The Guidelines mandate that "[p]rior sentences imposed in
unrelated cases are to be counted separately," while "[p]rior
sentences imposed in related cases are to be treated as one
sentence for purposes of [assigning criminal history points]."
U.S.S.G. § 4A1.2(a)(2). The Guidelines' Application Notes define
"related cases" as offenses that: "(1) occurred on the same
occasion, (2) were part of a single common scheme or plan, or (3)
were consolidated for trial or sentencing." Id., comment. (n.3).
Bryant asserts that three prior convictions resulting in
sentences were "related cases" under the Guidelines because "it
appears that . . . two [of] the sentences were to run
concurrently since they are the exact same sentence imposed on
the same day," and because he was ordered on the same date to
serve a sentence concurrent with the first two sentences.
The PSI reflects that on April 14, 1986, Bryant was arrested
for possession of cocaine. He was convicted and was, in lieu of
a prison sentence or probation, required to participate in an
alternative-sentencing "diversionary program." On November 28,
1987, Bryant was again arrested for possession of cocaine. He
was convicted of this offense. On January 25, 1988, Bryant was
sentenced to three years' probation for the November 1987
14

offense; a condition of the probation was that he would spend the
first 88 days in jail. On that same day, the same trial judge
found Bryant to be in violation of the terms of the diversionary
program to which he had been assigned for the 1986 offense.
Bryant was sentenced to a concurrent term of three-years'
probation, with the first 88 days behind bars. On January 11,
1989, Bryant was once again arrested for cocaine possession. On
March 24, 1989, Bryant was sentenced to three concurrent sixteen-
month terms of imprisonment. The first sentence was for Bryant's
violation of the terms of his probation that he was serving for
the 1986 offense. The second sentence was for Bryant's violation
of the terms of his probation that he was serving for the 1987
offense. The third sentence was imposed after Bryant pled guilty
to the 1989 offense.
There are three major flaws with Bryant's argument that the
district court should have treated those three sentences as
consolidated for purposes of the Guidelines. First, Bryant did
not produce evidence of an order consolidating the three cases.
A court should not assume that otherwise distinct cases involving
sentencing on the same day were consolidated. See United States
v. Paulk, 917 F.2d 879, 884 (5th Cir. 1990) ("Simply because
sentences run concurrently and were imposed on the same day does
not require the sentences to be consolidated for guideline
purposes absent a showing of a close factual relationship between
the convictions."); see also United States v. Ainsworth, 932 F.2d
358, 361 (5th Cir.) ("In cases that `proceeded to sentencing
15

under separate docket numbers' and in which there `was not an
order of consolidation,' there [is] a significant indication that
the cases were not consolidated."), cert. denied, 112 S.Ct. 346
(1991). Because Bryant made no showing that the prior cases were
consolidated or that there was a "close factual relationship"
between the three cases, we will not assume the cases were
consolidated for purposes of the Guidelines.
A second problem with Bryant's argument is that his three
prior offenses were separated by intervening arrests. Under the
Guidelines, prior cases resulting in sentences are to be treated
as "unrelated" if the offenses of conviction were separated by
intervening arrests. See U.S.S.G. § 4A1.2 (Application Note 3).
Finally, we observe that on March 24, 1989, Bryant's probation
was revoked in two separate cases and he was also sentenced to a
concurrent term in a wholly distinct case. The Commentary to the
Guidelines states that "[i]f . . . at the time of revocation
another sentence was imposed for a new criminal conviction, the
conviction would be computed separately from the sentence imposed
for the revocation." U.S.S.G. § 4A1.2, comment. (n.11); see also
United States v. Castro-Perpia, 932 F.2d 364, 365 (5th Cir.
1991). Therefore, the district court did not err when it found
that Bryant's three prior sentences were unrelated and assigned
criminal history points accordingly.9
9 Lastly, Bryant argues that he should have received two
points instead of three for a prior 88-day sentence that he
received for possessing cocaine on January 25, 1988. The
Guidelines provide that two criminal history points are assessed
for prior sentences of imprisonment of at least sixty days, but
16

III.
For the foregoing reasons, we AFFIRM the judgment of the
district court.
less than one year and one month. See U.S.S.G. § 4A1.1(a) & (b).
Bryant thus was mistakenly assigned a total of sixteen criminal
history points instead of fifteen points. However, subtracting
one criminal history point would not change Bryant's criminal
history category of VI. See U.S.S.G. Sentencing Table (level VI
category for 13 or more criminal history points). Bryant was
sentenced to 168 months, the minimum under the Guidelines for
that sentencing range. A remand would be senseless as
resentencing by the district court could not go below 168 months;
any error was, therefore, harmless. See Williams v. United
States, 112 S.Ct. 1112, 1120-21 (1992) (appellate court need not
remand if, but for district court's misapplication of Guidelines,
sentence would have been the same).
17