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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 93-1125

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDWARD WILLIAMS, a/k/a E-MAC,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Texas

May 27, 1994
Before POLITZ, Chief Judge, DAVIS and WIENER, Circuit Judges.
POLITZ, Chief Judge:
Convicted on a guilty plea of distribution of 10.19 grams of
cocaine base in violation of 21 U.S.C. § 841(a)(1) and sentenced to
30 years imprisonment, Edward Williams appeals his sentence.
Finding no reversible error, we affirm.
Background
Williams was indicted with a score of others in connection
with a narcotics trafficking operation. Under a plea agreement he

pleaded guilty to one count of distribution of cocaine base; the
government agreed to dismiss the remaining conspiracy count and to
recommend that his sentence be made to run concurrently with a
sentence he was then serving. The factual stipulation accompanying
the guilty plea reflects that Edwards provided 10.19 grams of
cocaine base to Thomas Edward Rackstraw, a codefendant, for sale to
an undercover agent. In tentative findings the district judge
informed Williams that he intended to hold him accountable for the
total amount of drugs sold by the conspiracy -- some 20 kilograms
of cocaine base. When Williams protested this quantity the
district court gave him the opportunity to withdraw his guilty
plea; Williams declined to do so. The court thereafter adopted its
tentative findings and sentenced Williams to 30 years imprisonment.
Williams timely appealed.
Analysis
Williams contests the trial court's decision to hold him
accountable for the entire quantity of drugs marketed by the
conspiracy. He contends that he should have been sentenced based
solely on the quantity which he admitted trafficking. U.S.S.G.
1B1.3(a)(1)(B) provides that a defendant who participates in a
joint criminal activity is accountable for the relevant conduct of
the others which was reasonably foreseeable to him.1 The district
court found both requirements met. Reviewing that determination
for clear error,2 we conclude that the district court's finding
1United States v. Puig-Infante, 19 F.3d 929 (5th Cir. 1994).
2United States v. Rogers, 1 F.3d 341 (5th Cir. 1993).
2

reflects a plausible view of the record.
The base of operations for the criminal activity was F&F Car
Company, a corporation established by Ronald Jerome Fisher, the
leader, and Shelley Gene Franklin, a top echelon associate, for the
purpose of laundering drug proceeds. According to the factual
stipulation, Rackstraw contacted Williams, also known as "E-Mac,"
at the car company when an undercover agent inquired about the
price of crack cocaine. After obtaining a quote, Rackstraw brought
the agent to the premises. En route, Rackstraw assured the
undercover agent that Williams or Fisher could obtain all the
cocaine that the agent desired. Williams met them at a paint shop
adjacent to the auto shop where he secured and provided the crack.
The Presentence Investigation Report reflects that Williams'
presence at the headquarters of the conspiracy was not
happenstance. It cites an incident in which Fisher, Williams, and
Rackstraw were stopped by the Arizona highway patrol and were found
in possession of a 9 mm. handgun and $4000 in cash. It also
describes an incident in which Rackstraw transported 17 ounces of
cocaine base for Williams from Fort Worth to Denver.3 Finally, in
testimony given at codefendant Rackstraw's sentencing and noticed
by the court without objection, Franklin described Williams as one
who furnished drugs to distributors on behalf of the enterprise.
3The PSR also cites the opinion of law enforcement agents that
Williams was "the muscle" behind the conspiracy but the report
includes no factual support for that conclusion. As we stated in
United States v. Elwood, 999 F.2d 814, 817-18 (5th Cir. 1993),
"[b]ald, conclusionary statements do not acquire the patina of
reliability by mere inclusion in the PSR." We do not consider that
conclusion in our review.
3

This factual scenario reflects that Williams was more than a
retail distributor accountable only for the drugs that he
personally distributed.4 He was, rather, part of the hub. He had
an ongoing relationship with Fisher, operated out of the
headquarters, and performed a variety of tasks for the enterprise.
United States v. Mitchell,5 on which Williams relies, is
distinguishable; Mitchell was solely a distributor who had no other
relationship to the top echelon of the conspiracy. The record
amply supports the district court's finding that the full scope of
the conspiracy was reasonably foreseeable to Williams.
The district court erred, however, in considering the
indictment as evidence in the sentencing calculus. An indictment
is merely a charge and does not constitute evidence of guilt.6
That elementary rubric has long been a bedrock of instructions
provided to jurors on voir dire examination and again in the final
charge.7 It would be ill-advised to discard this principle in
4See U.S.S.G. 1B1.3, Commentary, Application Note 2.
5964 F.2d 454 (5th Cir. 1992).
6Taylor v. Kentucky, 436 U.S. 478 (1978); Poretto v. United
States, 196 F.2d 392 (5th Cir. 1952); United States v. Ciambrone,
601 F.2d 616 (2d Cir. 1979); see also United States v. Calandra,
414 U.S. 338 (1974) (the grand jury's responsibilities are to
determine whether there is probable cause to believe a crime has
been committed and to protect citizens against unfounded criminal
prosecutions); 1 Wright, Federal Practice and Procedure: Criminal
2d, § 121 at 338 (1982 and 1994 Supp.) ("An indictment . . . is the
pleading by which the United States puts forward a criminal
charge.").
7See, e.g., United States v. O'Keefe, 722 F.2d 1175 (5th Cir.
1983); United States v. Nelson, 498 F.2d 1247, 1248 n.1 (5th Cir.
1974).
4

sentencing procedures. Grand juries enjoy broad latitude in the
conduct of their proceedings, free from restrictive evidentiary
rules and other protective incidents of our treasured adversary
proceedings. Such latitude to grand juries is acceptable because
the consequences of an erroneous indictment are tempered before or
at trial.8 No such safeguard inures to a count which has been
dismissed, as in the instant case. While evidence of illegal
activities charged in counts other than the count(s) of conviction
may be considered at sentencing, we hold that the indictment
standing alone may not be considered in the sentencing analysis.9
Although the district court erred in its reliance on the
indictment, the error was harmless. The court considered the
indictment solely as reflecting that the sale for which Williams
was convicted was part of the Fisher conspiracy. The record
contains other reliable data upon which to establish that link,
including the fact that Williams sold the 10.19 grams of crack from
Fisher's base of operations. We entertain no doubt that the
district court would have imposed the same sentence if it had given
8See United States v. Mechanik, 475 U.S. 66 (1986); Costello
v. United States, 350 U.S. 359 (1956).
9We are cognizant that in United States v. Ponce, 917 F.2d 841
(5th Cir. 1990), cert. denied, 499 U.S. 940 (1991), we listed the
indictment as support for the sentencing findings. We did so
without discussion but in reliance on United States v. Byrd, 898
F.2d 450 (5th Cir. 1990), where an indictment was used to bolster
hearsay evidence considered in sentencing. To the extent these
cases may be taken to accord evidentiary value to an indictment for
any purpose other than as a charging vehicle or for a pretrial
detention decision, they would be inconsistent with the precedents
cited in footnote 6 hereof.
5

no consideration to the indictment.10
Williams also complains that the quantity of drugs used in his
sentencing carried a higher statutory penalty range than the lesser
quantity to which he pled guilty. This objection lacks merit.
Williams was informed at the time of his plea that he faced a
sentence of imprisonment between 5 and 40 years. He received a
sentence within that range. The 30-year sentence that was imposed
resulted from the application of the Sentencing Guidelines; the
statutory range for the 20 kilograms of cocaine base attributed to
him was irrelevant. Williams was not entitled to a pre-plea fixing
of exactly where within the 5-to-40-year range his sentence would
fall. His expectations may not have been realized, but his
constitutional rights were not infringed.11
AFFIRMED.
10See Williams v. United States, 112 S.Ct. 1112 (1992).
11See United States v. Pearson, 910 F.2d 221 (5th Cir. 1990),
cert. denied, 498 U.S. 1093 (1991).
6