United States v. Tate

Notice: This opinion is subject to formal revision before publication in the

Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify the

Clerk of any formal errors in order that corrections may be made before the

bound volumes go to press.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 7, 2010 Decided January 14, 2011

No. 09-3052

UNITED STATES OF AMERICA,

APPELLEE

v.

RASHAAD G. TATE, ALSO KNOWN AS RAH,

APPELLANT

Consolidated with No. 09-3055

Appeals from the United States District Court

for the District of Columbia

(No. 1:08-cr-00312)

Sandra G. Roland, Assistant Federal Public Defender,

argued the cause for appellant Rashaad G. Tate. With her on the

briefs was A. J. Kramer, Federal Public Defender. Neil H.

Jaffee, Assistant Federal Public Defender, entered an

appearance.

2

Kavita Kumar Puri argued the cause for appellant Richard

E. Young. With her on the brief were Justin S. Antonipillai,

appointed by the court, and Wells C. Bennett.

Benjamin L. Eisman, Assistant U.S. Attorney, argued the

cause for appellee. With him on the brief were Ronald C.

Machen Jr., U.S. Attorney, and Elizabeth Trosman, Chrisellen

R. Kolb, and Gregory G. Marshall, Assistant U.S. Attorneys.

Roy W. McLeese III, Assistant U.S. Attorney, entered an

appearance.

Before: ROGERS, TATEL and KAVANAUGH, Circuit Judges.

Opinion for the Court by Circuit Judge ROGERS.

ROGERS, Circuit Judge: Appellants Rashaad G. Tate and

Richard E. Young challenge their sentences and seek remands

for resentencing. Upon reviewing the requirements of Rule 51

of the Federal Rules of Criminal Procedure for preserving error

and 18 U.S.C. § 3553(a) for sentencing defendants, and of 18

U.S.C. § 3553(f)(5) for eligibility for safety-valve sentencing,

we affirm.

I.

Tate and Young were indicted on a single count of unlawful

distribution of five grams or more of cocaine base on May 6,

2008, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii),

and 18 U.S.C. § 2. Tate was also indicted for the same offense

committed on May 14, 2008.

The government’s evidentiary proffers stated that on May

6, 2008, a confidential informant had called Tate about

purchasing 62 grams of crack cocaine. Tate said he would

contact Young, and later told the informant where and when to

3

meet Young. When the meeting occurred Young told the

confidential informant that he did not have 62 grams at that time

and sold 34.3 grams to the informant for $1,200. On May 14,

2008, Tate sold the confidential informant an additional 29.1

grams of cocaine base for $1,000. The proffer regarding Tate

also referred to the May 14, 2008 sale and to 178 cell-phone

conversations between Tate and Young between April 25, and

May 7, 2008. Each proffer stated that it was “not intended to

constitute a complete statement of all facts known by [each]

defendant or the Government, but is a minimum statement of

facts intended to provide the necessary factual predicate for the

guilty plea[s].”

Tate pleaded guilty to a single count and was sentenced to

100 months’ imprisonment and 48 months’ supervised release,

and was ordered to pay a $100 special assessment. Young also

pleaded guilty and was sentenced to the mandatory minimum of

60 months’ imprisonment and 60 months’ supervised release,

and was ordered to pay a $100 special assessment.

II.

Tate contends that he is entitled to a remand for

resentencing on three grounds of procedural error, because the

district court: (1) mistakenly believed that the 2007 amendment

to the crack guideline in the United States Sentencing

Guidelines (“U.S.S.G.”) had reduced the crack-to-powder

disparity from 100 to 1 to a disparity “in the neighborhood” of

20 to 1 when the amendment brought the disparity to 70 to 1 as

applied to Tate’s offense level1; (2) believed it lacked discretion

1

The 2007 amendment to the crack cocaine guideline maintained a

disparity ranging from 25 to 1 to 80 to 1 depending on the offense

level. U.S. SENT’G GUIDELINES MANUAL § 1B1.1 app. C, amdts. 706,

711 (2007); see Kimbrough v. United States, 552 U.S. 85, 106 (2007).

4

to impose a non-guideline sentence based solely on its policy

disagreement with the crack-to-powder disparity; and (3)

imposed a greater sentence than was necessary on the

assumption that the crack guideline would change in the future

and that the court would have the opportunity to “redo” the

sentence. Tate does not contend his sentence was substantively

unreasonable, and he acknowledges that his third claim is raised

for the first time on appeal and reviewable only for plain error.

The government maintains that all of Tate’s challenges are

advanced “for the first time on appeal,” Appellee’s Br. 24, and

therefore subject to plain error review, see FED. R. CRIM. P.

52(b); United States v. Coles, 403 F.3d 764, 767 (D.C. Cir.

2005), which he fails to show.

Rule 51 of the Federal Rules of Criminal Procedure

provides, in relevant part, that exceptions to the district court’s

rulings or orders are unnecessary, and that claims of error are

preserved when a party informs the district court of the

requested action, or of the objection and the grounds therefor.2

United States v. Wilson, 605 F.3d 985, 1022 (D.C. Cir. 2010).

The point of requiring objections to be made at the time of

sentencing is to afford the district court the opportunity to

consider them, not to clutter the proceedings with needless

2

Rule 51 provides, in relevant part:

(a) Exceptions Unnecessary. Exceptions to rulings or orders

of the court are unnecessary.

(b) Preserving a Claim of Error. A party may preserve a

claim of error by informing the court – when the court ruling

or order is made or sought – of the action the party wishes the

court to take, or the party’s objection to the court’s action and

the grounds for that objection. * * * *

FED. R. CRIM. P. 51.

5

objections after the district court has ruled. In re Sealed Case,

349 F.3d 685, 690 n.2 (D.C. Cir. 2003). Indeed, Rule 51(b) was

adopted in part to eliminate the necessity of redundant

exceptions to rulings. 3B CHARLES A. WRIGHT ET AL., FEDERAL

PRACTICE & PROCEDURE § 841 (3d ed. 2004). Thus, in United

States v. Rashad, 396 F.3d 398, 401 (D.C. Cir. 2005), the court

stated that “[a]ll a defendant need do to preserve a claim of error

. . . is inform the [district] court and opposing counsel of the

ruling he wants the court to make and the ground for so doing.”

Other circuits have adopted similar approaches to this long-

standing rule. In United States v. Ortiz, 431 F.3d 1035, 1039

(7th Cir. 2005), the court stated that “when a defendant

consistently disputes an issue, and the district court does not

specifically elicit objections to the adequacy of the findings, the

defendant is not required to interpose a further objection to the

adequacy of the district court’s findings after the district court

has ruled.” So too in United States v. Castillo, 430 F.3d 230,

243 (5th Cir. 2005), the court held that where the prosecutor had

repeatedly made his position known but never objected to the

sentence imposed and the district court had made clear its

disagreement with the prosecutor’s position, “requiring a formal

objection by the prosecutor . . . would have been futile, would

not have served the purposes behind requiring contemporaneous

objections, and would have clearly ‘exalt[ed] form over

substance.’”

Tate’s counsel informed the district court that he believed

the crack-to-powder cocaine disparity was between 60 and 80 to

1, not 20 to 1, and counsel requested imposition of a sentence

for Tate no higher than the mandatory minimum pursuant to the

district court’s discretion to vary from the Guidelines, citing

Spears v. United States, 129 S. Ct. 840 (2009). Having stated

the facts and the law regarding the disparity and having

requested that the district court exercise its discretion to

sentence Tate based on a different crack-to-powder ratio,

6

counsel preserved Tate’s first two claims of error and counsel

was not obligated to object when the district court rejected his

request for a sentence at the mandatory minimum. Our review

of these claims, therefore, is for abuse of discretion. See Gall v.

United States, 552 U.S. 38, 46 (2007). Our review of purely

legal questions is de novo, see United States v. Bridges, 175

F.3d 1062, 1065 (D.C. Cir. 1999), for “[a] district court by

definition abuses its discretion when it makes an error of law,”

Koon v. United States, 518 U.S. 81, 100 (1996). We review the

district court’s findings of fact for clear error and accord “due

deference” to the district court’s application of the Guidelines to

found facts. See United States v. Erazo, No. 10-3012, slip op. at

5 (D.C. Cir. circulated to the full court December 22, 2010)

(internal citations and quotation marks omitted).

Although Tate’s first two challenges were properly

preserved, he fails to show legal error by the district court on

either.

First, prior to accepting his guilty plea, the district court

advised Tate that the Guidelines were “just recommendations,”

and that it would first look to the Guidelines and then proceed

to analyze the factors in 18 U.S.C. § 3553(a) to impose a

sentence “sufficient but not greater than necessary” to

accomplish the goals of sentencing. Tr. 5 (Feb. 27, 2009).

When Tate’s counsel argued at the sentencing hearing for

imposition of the mandatory minimum sentence, the district

court challenged counsel’s assumption that the disparity

between crack and powder cocaine was 100 to 1, noting the

Sentencing Commission’s amendment to the Guidelines in 2007

and inquiring whether, in view of the two-level reduction in the

offense level, the disparity was 20 to 1. Tate’s counsel informed

the district court that the recalibration had not brought the

disparity down to 20 to 1 but “more like between 60 to 80 to 1.”

Tr. 10 (May 7, 2009). The district court responded, “it’s not

7

exactly 20 to 1 as you point out. But it is in that neighborhood.”

Id.

On the latter sentence, and specifically on the last word,

hangs Tate’s first claim of error. He contends this statement

indicates that the district court misunderstood the applicable law

and such a procedural error requires resentencing because at 20

to 1, the applicable guideline range would have been 70 to 87

months’ imprisonment, not 100 to 125 months’. Because a 20

to 1 disparity (70–87 months) cannot reasonably be said to be

“in the neighborhood of” either 60 or 80 to 1, Tate maintains

that the district court erred as a matter of law, and that his

sentence is procedurally unreasonable, in violation of due

process and the requirement of section 3553(a) that a sentence

be no greater than necessary.

The ensuing sentencing proceedings, however, show that

unlike in King v. Hoke, 825 F.2d 720 (2d Cir. 1987), on which

Tate relies, where there was clear evidence that the district

court’s sentence was motivated by an error of law, id. at 722, the

district court’s motivation for imposing a within-Guidelines

sentence of 100 months was based on Tate’s escalating criminal

conduct within a brief period of time. Considering Tate’s

counsel’s argument for imposition of the mandatory minimum

sentence of 60 months’ imprisonment, the district court stated:

the problem I have with your argument is that . . . Mr.

Tate was on probation from D.C. when he committed

the crime in Maryland. He was on release pending

appeal from that crime when he committed these

crimes in the District of Columbia. That is so much

recidivism in such a short period of time. Talk about

somebody who has not quite gotten there yet to have

respect for law, and it’s that record even more than the

quantities [of cocaine] here. The quantities here are

8

significant as well, but it’s the speed of that record that

is to me quite alarming and makes it difficult to

sentence him to just a mandatory minimum.

Tr. 13–14 (May 7, 2009).3 The district court noted that Tate had

demonstrated “progress” in the seriousness of his crimes. Tr.

22 (May 7, 2009).

The prosecutor agreed that Tate’s criminal conduct, as

revealed in his record, constituted a “case specific aggravating

factor which justifies opposition to variance,” and did not

warrant the requested “substantial variance . . . from the

[G]uidelines,” Tr. 16 (May 7, 2009), notwithstanding statements

by Executive Branch officials to Congress that the sentencing

disparity should be eliminated. The district court confirmed

with the prosecutor that the Commission’s 2007 amendment had

reduced the guideline range from 121–151 months to 100–125

3

According to the government’s sentencing memorandum, Tate was

convicted in Maryland in 2003 for recklessly driving a vehicle while

under influence of alcohol, in the course of which Tate’s vehicle

struck a police car and led police on a chase at speeds reaching 140

miles per hour. In 2005 he was arrested in the District of Columbia

and pleaded guilty to three misdemeanor offenses based on his

possession of a semiautomatic weapon with an obliterated serial

number, loaded with hollow-point ammunition. Ten months later,

while on probation in the District of Columbia, he was arrested in

Maryland for possession of another loaded semiautomatic weapon

with an obliterated serial number and 63 grams of cocaine packaged

in 36 bags; he pleaded guilty in September 2007 to two felony charges

of possession with the intent to distribute cocaine and possession of a

firearm with a nexus to drug trafficking and was sentenced to

concurrent five year terms of imprisonment. Within eight months,

while still on probation in the District of Columbia conviction and free

on an appeal bond in the Maryland conviction, Tate committed the

crimes in the instant case.

9

months and sentenced Tate to 100 months’ imprisonment. Tate

thus fails to show a legal error by the district court. See United

States v. Pickett, 475 F.3d 1347, 1352 (D.C. Cir. 2007).

Second, Tate’s related claim that the district court erred by

failing to appreciate that it could impose a non-guideline

sentence based solely on its disagreement with the crack-to-

powder disparity also fails. Tate’s counsel cited Spears, 129 S.

Ct. 840, in urging the district court to exercise its discretion to

impose the mandatory minimum sentence. The district court, in

reviewing the section 3553(a) factors, expressed concern about

the disparity, but recognized that it had discretion to vary below

the Guidelines range. It did not vary below the Guidelines,

however, in view of Tate’s criminal history. That conclusion

was not an abuse of discretion as Tate’s criminal record supports

the district court’s finding that it “ha[d] no reasonable basis to

depart from the [G]uidelines.” Tr. 25 (May 7, 2009).

Finally, Tate fails to show that the district court plainly

erred, see Coles, 403 F.3d at 767, in stating that it was “acting

on the assumption,” Tr. 25 (May 7, 2009), that the Sentencing

Commission would implement a retroactive amendment to the

crack guideline and that it would not oppose resentencing Tate

in that event. He relies on cases arising under Federal Rule of

Criminal Procedure 35 where, for example in United States v.

Drown, 942 F.2d 55, 59 (1st Cir. 1991), the proceedings

indicated that the prosecutor’s strategy to postpone its evaluation

of a defendant’s assistance until his services were completed in

another proceeding “improperly merge[d] the temporal

boundaries” of U.S.S.G. § 5K1.1’s reward for presentencing

assistance and Rule 35’s reward of subsequent assistance. In

contrast, the record shows that the district court’s reason for not

imposing the mandatory minimum sentence on Tate was not

premised on its future reduction pursuant to Rule 35, as in

United States v. Recla, 560 F.3d 539, 546 (6th Cir. 2009),

10

United States v. Barnette, 427 F.3d 259, 262 (4th Cir. 2005), and

United States v. Bureau, 52 F.3d 584, 595 (6th Cir. 1995), but

on Tate’s “alarming” criminal background. Tr. 14 (May 7,

2009).

III.

Young, also seeking resentencing, contends that the district

court erred in ruling that he was required to debrief the

government in order to qualify for safety-valve treatment. Our

review of this legal question is de novo. See Erazo, No. 10-

3012, slip op. at 5.

Section 3553(f) of Title 18 provides for a limitation on the

applicability of a mandatory minimum sentence where the

district court finds that a defendant meets five conditions. At

issue here is the fifth condition which provides:

Not later than the time of the sentencing hearing, the

defendant has truthfully provided to the Government

all information and evidence the defendant has

concerning the offense or offenses that were part of the

same course of conduct or of a common scheme or

plan, but the fact that the defendant has no relevant or

useful other information to provide or that the

Government is already aware of the information shall

not preclude a determination by the court that the

defendant has complied with this requirement.

18 U.S.C. § 3553(f)(5).

The plain text of the statute does not require a debriefing,

i.e., a face-to-face interrogation with government prosecutors.

Id.; see U.S.S.G. § 5C1.2(5). As several circuit courts of appeal

have observed, the statute does not specify the form, place, or

11

manner of disclosure, and a defendant may comply without

submitting to a debriefing. United States v. Altamirano-

Quintero, 511 F.3d 1087, 1092 n.7 (10th Cir. 2007); United

States v. Schreiber, 191 F.3d 103, 108 (2d Cir. 1999); United

States v. Montanez, 82 F.3d 520, 522 (1st Cir. 1996). Nor

apparently does the legislative history specify a form or place.

United States v. Ramirez, 94 F.3d 1095, 1100 (7th Cir. 1996);

Montanez, 82 F.3d at 522. That a proffer of information is

written rather than oral is of no consequence because the safety-

valve provision focuses on the completeness and truthfulness of

the information provided by a defendant. United States v.

Mejia-Pimental, 477 F.3d 1100, 1107 n.12 (9th Cir. 2007);

United States v. Tournier, 171 F.3d 645, 647 (8th Cir. 1999).

One circuit has suggested that “[a]s a practical matter, a

defendant who declines to offer himself for a debriefing takes a

very dangerous course” because, for instance, reliance on “a

letter runs an obvious and profound risk: The government is

perfectly free to point out the suspicious omissions at

sentencing, and the district court is entitled to make a common

sense judgment.” Montanez, 82 F.3d at 523. Although

“[d]ebriefing by the Government plays an important role in

permitting a defendant to comply with the disclosure

requirement,” it is not a prerequisite to safety-valve

consideration. United States v. Beltran-Ortiz, 91 F.3d 665, 669

& n.4 (4th Cir. 1996).

The government properly acknowledges on appeal that a

debriefing is not required to fulfill the disclosure requirements

under section 3553(f)(5). See Appellee’s Br. 36. Before the

district court, however, the government argued that a debriefing

was required to qualify for safety-valve sentencing. The district

court ruled by order of May 12, 2009 that because “a defendant

seeking the benefit of the [s]afety [v]alve must go through the

process of talking with he the Government,” and Young had not

done so, he was not entitled to a sentence below the mandatory

12

minimum. At the subsequent and final hearing, the district court

stated:

I think that a full debriefing . . . in the normal sense of

the word would not be necessarily required, but an

affirmative sharing of information [is], what the

defendant knows about the crime with which he’s been

charged and to which he’s entered a plea, what he

knows about the drugs and sources and things like that

must be provided to the government before a defendant

is entitled to the safety valve.

Tr. 3–4 (June 2, 2009). Before imposing sentence, the district

court inquired whether Young wanted time to think about what

he wanted to do. Young’s counsel, after conferring with his

client, advised the district court that “Mr. Young is ready to go

forward with sentencing.” Id. at 5.

On appeal Young nonetheless contends that the district

court imposed an in-person debriefing requirement to qualify for

safety-valve sentencing. He points not only to the district

court’s statement at the initial sentencing hearing but to the

district court’s statement to Young shortly after the above-

quoted statement, in the final minutes of his sentencing hearing,

that “you either have to talk to the government, and tell them

everything you know, or I will sentence you to the mandatory

minimum of 60 months.” Id. at 4. Young overreads the district

court’s last statement about his choice. Where the district court

had moments before disavowed a debriefing requirement, the

words “talk” and “tell,” which have less specific definitions than

the word “debriefing,”4 and imply a more informal exchange of

4

According to MERRIAM WEBSTER’S COLLEGIATE DICTIONARY (10th

ed. 1993), the word “debrief” means “to interrogate (as a pilot) upon

return (as from a mission) in order to obtain useful information.” Id.

13

information, could not convey imposition of a formal debriefing

requirement. Although the district court might again have made

this explicit, the record demonstrates an understanding of usage

that is consistent with the district court’s disavowal of a

debriefing requirement. In Young’s presence his counsel had

offered at the initial sentencing hearing to “tell the Court” and

the prosecutor about Young’s other drug sales, Tr. 4 (May 8,

2009), contemplating disclosure in a form other than through a

debriefing, a disclosure during a (presumably sealed) hearing

before the district court.

Young also contends that but for the asserted debriefing

requirement error he would have received safety-valve treatment

because his agreement to the government’s factual proffer upon

entering his guilty plea was all that was required. He

acknowledges, however, that he had the burden to establish by

a preponderance of evidence that he was entitled to safety-valve

relief. See United States v. Gales, 603 F.3d 49, 52–53 (D.C. Cir.

2010) (quoting United States v. Mathis, 216 F.3d 18, 29 (D.C.

Cir. 2000)). Given that he does not dispute that he declined to

provide any information to the government, whether by

debriefing or otherwise, the district court’s conclusion that his

stipulation to the government’s factual allegations in the plea

proffer was neither candid nor complete is not clearly erroneous

and its denial of safety-valve sentencing is properly accorded

deference.

Generally, a defendant’s agreement with the factual

allegations in a government plea proffer is considered

insufficient to fulfill the requirements of section 3553(f)(5) to

the extent it is limited to a recitation of the defendant’s own

actions in the crime charged, United States v. Gutierrez-

at 297. The relevant meaning of “talk” is simply “to convey

information or communicate in any way.” Id. at 1202.

14

Maldonado, 328 F.3d 1018, 1019 (8th Cir. 2003), and fails to

disclose information about co-conspirators, United States v.

O’Dell, 247 F.3d 655, 675–76 (6th Cir. 2001); United States v.

Wrenn, 66 F.3d 1, 2–3 (1st Cir. 1995), much less about the

defendant’s chain of distribution, United States v. Arrington, 73

F.3d 144, 148 (7th Cir. 1996). In Gales, this court took a similar

approach, stating that “the district court . . . was entitled to

consider the government’s point” that during a debriefing the

defendant’s inability to identify more concretely his supplier

was simply not credible “and make reasonable inferences from

the evidence.” 603 F.3d at 54 (citing Montanez, 82 F.3d 520,

where the defendant unsuccessfully relied on a letter to the

government about the drug sales while omitting who supplied

him with the drugs). In United States v. Evans, 216 F.3d 80, 91

(D.C. Cir. 2000), this court affirmed the denial of safety-valve

treatment in view of sufficient record evidence that the

defendant knew, but had not fully disclosed, inter alia, the

nature and source of his drug supply. Accord United States v.

Rodriguez, 69 F.3d 136, 143 (7th Cir. 1995) (same).

Young responds that the district court erred in foreclosing

safety-valve sentencing without first finding that the proffer was

incomplete, that there was information beyond the proffer in his

possession, or that his account was less than credible. Section

3553(f)(5) requires the district court to determine if the

defendant has truthfully provided all information. As the First

Circuit explained in United States v. Miranda-Santiago, 96 F.3d

517 (1st Cir. 1996), where a defendant had offered “a facially

plausible tale of limited involvement”:

The government cannot assure success simply by

saying, “We don’t believe the defendant,” and doing

nothing more. If it could, it would effectively

eliminate the self-conscious difference between the

safety valve provision, U.S.S.G. § 5C1.2, which

15

obligates the district court to determine if the defendant

has truthfully provided all information, and the

substantial assistance provision, U.S.S.G. § 5K1.1,

which permits, upon the government’s motion and at

the court’s discretion, a downward adjustment for

certain defendants who[m] [the government has

determined] have provided substantial assistance to the

government.”

Id. at 529 (internal citation omitted); accord Gales, 603 F.3d at

52. Further, the court explained, section 3553(f)(5) “does not

invite . . . speculation” because “[i]f mere conjecture based on

personal relationships could bar application of section

3553(f)(5), [then] in all cases where minor participants knew

others more involved, the safety valve provision would be

beyond their grasp.” Miranda-Santiago, 96 F.3d at 529. As this

“was not intended by Congress,” the court concluded, the

district court’s “bare conclusion that [the defendant] did not

‘cooperate fully,’ absent either specific factual findings or easily

recognizable support in the record, cannot be enough to thwart

[the defendant’s] effort to avoid imposition of a mandatory

minimum sentence.” Id. at 529–30.

There is “easily recognizable support in the record,” id. at

529, for the district court to have been unpersuaded that Young

had made a full disclosure in the absence of some form of

communication to the government. Although Young’s

memorandum in aid of sentencing stated that “[t]he government

was already aware of the codefendant’s drug practices, and

therefore, there was nothing new for Mr. Young to report,” and

that he had “told everything that he knew about the May 6, 2008

sale,” Mem. in Aid of Sentencing at 4, drug paraphernalia –

Pyrex glasses and a scale coated with white residue – was found

during a search of Young’s residence. Tr. 11 (Feb. 9, 2009). At

the initial sentencing hearing Young’s counsel offered to

16

provide, in exchange for safety-valve sentencing, additional

information regarding “the extent of [Young’s] drug selling in

the District of Columbia.” Tr. 4 (May 8, 2009). Indeed,

counsel’s statement was equivocal in arguing not that Young did

not possess information regarding his supplier but that he was

not required to provide such information to the government

under section 3553(f)(5). Id. Additionally, the proffer itself

made Young’s claim implausible. According to the proffer,

Young was able to provide and sell 34.3 grams of crack cocaine

within a matter of hours of receiving Tate’s call. Young either

had information about the source of the drugs he sold to the

confidential informant or, alternatively, was in a position to say

why he had no such information.

Accordingly, we affirm the judgments of conviction.