Court order filed October 13, 2000 (superseding
order of September 21, 2000) grants panel rehearing
Rehearing in banc granted by order
filed September 21, 2000
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4203
ROGER BYRD,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4204
HERMAN JUNIOR BYRD,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4205
CHRISTIAN DEXTER BYRD,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of North Carolina, at Statesville.
Richard L. Voorhees, District Judge.
(CR-97-109-V)
Submitted: May 31, 2000
Decided: August 9, 2000
Before WILKINS, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Richard A. Culler, CULLER & CULLER, P.A., Charlotte, North Car-
olina; Noell P. Tin, Eben T. Rawls, III, RAWLS & DICKINSON,
P.A., Charlotte, North Carolina, for Appellants. Gretchen C. F. Shap-
pert, Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
In these consolidated appeals, Roger Byrd ("R. Byrd"), Herman
Junior Byrd ("H. Byrd"), and Christian Dexter Byrd ("C. Byrd")
appeal their convictions and sentences. The Byrds were convicted of
one count of conspiracy to possess with intent to distribute and dis-
tribute a quantity of cocaine and cocaine base in violation of 21
U.S.C. § 846 (1994). H. Byrd and C. Byrd were each convicted of one
count of possession with intent to distribute cocaine and cocaine base
in violation of 21 U.S.C.A. § 841 (West 1999), and 18 U.S.C. § 2
(1994). Finding no reversible error, we affirm.
R. Byrd contends that: (1) his Sixth Amendment right to counsel
was violated by the admission of a jailhouse informant's testimony;
(2) the evidence was insufficient to sustain his conviction; and (3) he
was not given adequate notice of the convictions on which the Gov-
ernment intended to rely in seeking an enhanced sentence. We find
that R. Byrd's right to counsel was not violated because there was no
evidence that the Government and its informant "took some action,
beyond merely listening, that was designed deliberately to elicit
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incriminating remarks." Kuhlmann v. Wilson , 477 U.S. 436, 459
(1986). After viewing the evidence in the light most favorable to the
Government, see Glasser v. United States, 315 U.S. 60, 80 (1942), we
find that there was sufficient evidence to sustain his conspiracy con-
viction. See, e.g., United States v. Banks, 10 F.3d 1044, 1054 (4th Cir.
1993) (conspiracy shown "by [the defendants'] mutual interest in sus-
taining the overall enterprise of catering to the ultimate demands of
a particular drug consumption market."). We also conclude that R.
Byrd was given adequate notice of the convictions relied upon by the
Government in seeking an enhanced sentence under 21 U.S.C. § 851
(1994).
H. Byrd contends that: (1) the district court erred by denying his
motion to suppress evidence; (2) the district court erred in its determi-
nation of the quantity of drugs attributed to him for sentencing pur-
poses; (3) the district court erred by enhancing H. Byrd's sentence
based on his possession of a firearm; and (4) his base offense was
improperly enhanced on the basis that he was a manager of the con-
spiracy.
With regard to the admission of evidence seized during a 1991
incident, we find that any error was harmless. See United States v.
Ford, 986 F.2d 57, 60 n.2 (4th Cir. 1993) (noting that improperly
admitted evidence is reviewed for harmless error). The evidence
against H. Byrd was substantial. We accordingly conclude that the
verdicts in his case would have been the same even if the evidence
seized during the challenged search had been suppressed.
We review the district court's factual findings made at sentencing
for clear error. See United States v. Randall , 171 F.3d 195, 210 (4th
Cir. 1999). We find that the district court did not clearly err in its
determination of the amount of crack cocaine attributed to H. Byrd for
sentencing purposes. We also find there was no clear error in increas-
ing H. Byrd's base offense level for possession of a weapon or for his
managerial role in the offense.
C. Byrd contends that the district court did not make the requisite
factual findings under Rule 32(c)(1) of the Federal Rules of Criminal
Procedure in sustaining the Government's objections to the presen-
tence investigation report ("PSR"). "The purpose of this rule is to
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ensure that a record is made as to how the district court ruled on any
alleged inaccuracy in the PSR." United States v. Walker, 29 F.3d 908,
911 (4th Cir. 1994). The court does not need to articulate its finding
with "minute specificity." Id. (internal quotation omitted). We find
that the court complied with Rule 32(c)(1). When it sustained the
Government's objections, the court adopted the Government's sum-
maries of trial testimony submitted in support of the Government's
objections. See United States v. Walker, 29 F.3d 908, 911 (4th Cir.
1994) (by discerning the factual basis for the district court's decision,
appellate court can undertake a meaningful review).
Accordingly, we affirm the convictions and sentences. We dispense
with oral argument because the facts and legal conclusions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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