UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4865
LASHUN D. BURTON,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4885
TYRELL DANTE BROWN,
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Robert G. Doumar, Senior District Judge.
(CR-00-94)
Submitted: May 3, 2001
Decided: June 11, 2001
Before WILKINS, WILLIAMS, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Robert Charles Neeley, Jr., ROBINSON, MADISON, FULTON &
ANDERSON, Norfolk, Virginia; Keith Loren Kimball, COLGAN &
2 UNITED STATES v. BURTON
KIMBALL, Virginia Beach, Virginia, for Appellants. Helen F. Fahey,
United States Attorney, Michael R. Smythers, Assistant United States
Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Lashun D. Burton and Tyrell Dante Brown appeal their convictions
for conspiracy to distribute and to possess with intent to distribute
fifty grams or more of cocaine base and related substantive counts, as
well as their resulting sentences of 300 months and 204 months,
respectively. Finding no error to their many contentions, we affirm.
I
Both Appellants challenge the sufficiency of the evidence support-
ing their conspiracy convictions. In addition, Burton also asserts that
there was insufficient evidence to support his convictions on four
counts of distribution of cocaine and cocaine base and four counts of
aiding and abetting Brown in possessing with intent to distribute and
distributing cocaine and cocaine base. This court reviews sufficiency
of the evidence challenges by determining whether, viewing the evi-
dence in the light most favorable to the Government, any rational trier
of fact could find the essential elements of the crime beyond a reason-
able doubt. Glasser v. United States, 315 U.S. 60, 80 (1942).
Regarding the conspiracy convictions, both Appellants argue that
the evidence, at most, showed that they both dealt drugs, but failed
to show that they worked together or made any agreements in that
regard. To sustain its burden, the Government must show that a con-
spiracy existed, that Appellants knew it existed, and that they know-
ingly entered into it. United States v. Cropp, 127 F.3d 354, 361 (4th
UNITED STATES v. BURTON 3
Cir. 1997). Circumstantial evidence, including the defendant’s rela-
tionship with his coconspirators, the length of his association, his atti-
tude, conduct, and the nature of the conspiracy may be used to prove
the existence of and participation in the conspiracy. United States v.
Brown, 856 F.2d 710, 711 (4th Cir. 1988). When the evidence estab-
lishes a lengthy buy-sell relationship coupled with a substantial quan-
tity of drugs, a reasonable inference can be drawn that a conspiracy
existed among the parties to the buy-sell transaction. United States v.
Mills, 995 F.2d 480, 485 n.1 (4th Cir. 1995).
In the instant case, the conspiracy was charged to have lasted
approximately nine months, and there was overwhelming evidence
that Appellants repeatedly sold quantities of cocaine and crack
cocaine during that time period. For example, Diane Beasley testified
that she purchased $10-$20 worth of crack cocaine from Burton forty
to fifty times, from Brown twenty-five times, and from both Burton
and Brown around twenty-five times. Dwaine Revell testified that he
sold crack cocaine in June 1999 (the date the conspiracy was alleged
to have begun) and that he obtained his cocaine from Burton. Revell
bought in increasing amounts ranging from seven grams up to seventy
grams. Alex Lee testified that he bought crack cocaine from Brown
several times, including a sale of one gram.
Further, there was evidence introduced at trial that Appellants
worked together. Robert Turner testified to one transaction for
twenty-eight grams of crack cocaine. Brown retrieved the crack from
his groin area and handed it to Burton, who then passed it to Turner.
Further, Turner stated that on October 9, 1999, after he conducted a
seventeen-gram crack cocaine purchase from Brown, Burton told Tur-
ner that, if Turner wanted to buy crack and Burton was not available,
Turner should speak to Brown. In addition, Officer Welch testified
that later that day, when he stopped Burton for driving on a suspended
license, Burton had $5000 cash on him, including recorded money
that Brown had received from Turner during the earlier drug deal. The
foregoing evidence was sufficient to show that Brown and Burton
conspired not only with each other, but also with Beasley, Revell, and
Lee, to sell cocaine and crack cocaine.
Regarding his distribution counts, Burton contends that the only
evidence of these transactions was Turner’s uncorroborated testi-
4 UNITED STATES v. BURTON
mony, which was insufficient. While Turner’s testimony alone is suf-
ficient to support the convictions, see United States v. Manbeck, 744
F.2d 360, 392 (4th Cir. 1984), there was also ample corroboration.
These four transactions were listened to and observed by Officer
Welch, as well as being videotaped. Accordingly, this claim is with-
out merit.
Burton also argues that his four aiding and abetting convictions
were not supported by sufficient evidence because, although he was
present during these crimes, he was not a participant. A defendant
aids and abets the commission of a crime when he willfully associates
himself with the criminal venture and willfully participates in it as he
would in something he wished to bring about. United States v. Hor-
ton, 921 F.2d 540, 543 (4th Cir. 1990). We find that the evidence was
sufficient to show that Burton assisted Brown in his possession with
intent to distribute and distribution of crack cocaine and cocaine.
II
Burton next challenges his two-level enhancement for his role in
the offense under U.S. Sentencing Guidelines Manual § 3B1.1(c)
(1998), on two grounds. First, he asserts that the evidence was insuffi-
cient to support such an enhancement. Second, he contends that the
failure to submit the question to the jury was error under Apprendi v.
New Jersey, 530 U.S. 466 (2000).
The finding by the district court that Burton was an organizer or
a leader in the conspiracy is a finding of fact reviewable only for clear
error. United States v. Hicks, 948 F.2d 877, 881 (4th Cir. 1991). We
find that this evidence was sufficient to establish by a preponderance
of the evidence that Burton was the leader of the conspiracy and that
Brown essentially worked for him.
Burton’s Apprendi claim is likewise meritless, because Apprendi
does not impact application of the Guidelines, so long as the sentence
imposed does not exceed the maximum statutory penalty for the rele-
vant statute. United States v. Kinter, 235 F.3d 192, 199-200 (4th Cir.
2000), cert. denied, ___ U.S. ___, 69 U.S.L.W. 3618 (U.S. Mar. 19,
2001) (No. 00-8591). Here, because Burton was charged with and
convicted of a conspiracy involving fifty grams or more of crack
UNITED STATES v. BURTON 5
cocaine, he was subject to a maximum sentence of life. Thus, his
resulting 300 month sentence did not violate Apprendi.
III
Finally, Burton and Brown challenge the district court’s denial of
their motion for a new trial. We have reviewed the record and the dis-
trict court’s findings from the bench on this issue, and we find no
reversible error. Accordingly, we affirm the denial of the motion for
a new trial on the reasoning of the district court. (J.A. at 625-40).
IV
Based on the foregoing, we affirm Burton’s and Brown’s convic-
tions and sentences. We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
AFFIRMED