UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 99-4951
ALBERT NEWTON COOMBS, a/k/a
Johnny,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 00-4008
WINDELL JOSEPH ROBINSON, a/k/a
Windell Robinson Stine,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 00-4243
MICHAEL SHIRLEY, a/k/a Winston
Freeman,
Defendant-Appellant.
Appeals from the United States District Court
for the Middle District of North Carolina, at Durham.
N. Carlton Tilley, Jr., Chief District Judge.
(CR-99-69)
Submitted: November 30, 2000
Decided: January 2, 2002
2 UNITED STATES v. COOMBS
Before WILKINS, LUTTIG, and WILLIAMS, Circuit Judges.
No. 99-4951 affirmed in part and vacated and remanded in part, No.
00-4008 affirmed, and No. 00-4243 affirmed in part and vacated and
remanded in part by unpublished per curiam opinion.
COUNSEL
Louis C. Allen, III, Federal Public Defender, Gregory Davis, Assis-
tant Federal Public Defender, Greensboro, North Carolina; J. David
James, SMITH, JAMES, ROWLETT & COHEN, L.L.P., Greensboro,
North Carolina; Anne R. Littlejohn, Greensboro, North Carolina, for
Appellants. Walter C. Holton, Jr., United States Attorney, Sandra J.
Hairston, Assistant United States Attorney, Greensboro, North Caro-
lina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
A jury convicted Albert Newton Coombs, Windell Joseph Robin-
son, and Michael Shirley of conspiracy to distribute cocaine and crack
cocaine. Shirley was also convicted of illegal reentry by a deported
alien. All of the Appellants argue on appeal that the indictment was
deficient, that the district court erred by denying their motions for
judgments of acquittal, and that the district court should have submit-
ted the issue of drug amounts to the jury in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000). In addition, Coombs and Robinson
allege that the district court erred in its calculation of the amount of
drugs attributable to them; Robinson and Shirley allege that the dis-
UNITED STATES v. COOMBS 3
trict court erred by rejecting their guilty pleas; Coombs alleges that
the court erred by enhancing his base offense level for obstruction of
justice;1 and Robinson alleges that the court erred by enhancing his
base offense level for possession of a firearm.2 We affirm Appellants’
convictions and Robinson’s sentence, but we vacate Coombs’ and
Shirley’s sentences and remand for resentencing.
The basic facts of this case are relatively straightforward. Appel-
lants were involved in the wide-scale distribution of cocaine and
crack cocaine in the Winston-Salem, North Carolina, area. The record
shows that Appellants made frequent trips to Florida to purchase large
quantities of powder cocaine, a portion of which was later converted
to crack. Most of the testimony concerning Appellants’ drug activities
came from individuals who were customers.
Appellants allege for the first time on appeal that the indictment
was deficient because it did not place the conspiracy within a specific
time frame. Because this issue was not raised before the district court,
our review is for plain error, and we find none. United States v.
Olano, 507 U.S. 725, 731-32 (1993). The indictment charged Appel-
lants with engaging in a conspiracy to distribute cocaine and crack
cocaine "[f]rom in or about 1996, up to and including June, 1997, the
exact dates to the Grand Jurors unknown." Exact specificity is not
required when, as here, the dates are not an element of the offense.
See United States v. Kimberlin, 18 F.3d 1156, 1159 (4th Cir. 1994).
Moreover, Appellants have failed to show how they were prejudiced
in presenting their defense as a result of the dates listed in the indict-
ment.3
Appellants next argue that the district court erred in denying their
motions for judgment of acquittal under Fed. R. Crim. P. 29. The
1
U.S. Sentencing Guidelines Manual § 3C1.1 (2000).
2
USSG § 2D1.1(b)(1).
3
We also find that Appellants’ reliance on United States v. Cecil, 608
F.2d 1294 (9th Cir. 1979), is misplaced for several reasons. First, the
defendants in Cecil challenged the indictment before the district court.
Therefore, the standard of review was different. Second, the indictment
in Cecil was completely open-ended on both ends. Finally, the indict-
ment in Cecil was found to be deficient on numerous levels.
4 UNITED STATES v. COOMBS
standard of review for deciding a Rule 29 motion is "whether there
is substantial evidence (direct or circumstantial) which, taken in the
light most favorable to the prosecution, would warrant a jury finding
that the defendant was guilty beyond a reasonable doubt." United
States v. MacCloskey, 682 F.2d 468, 473 (4th Cir. 1982). In determin-
ing the issue of substantial evidence, we neither weigh the evidence
nor consider the credibility of witnesses. United States v. Arrington,
719 F.2d 701, 704 (4th Cir. 1983). In the present case, investigators
and customers testified in depth concerning Appellants’ drug activi-
ties. While the defense presented testimony, including Coombs’, the
jury resolved the credibility issues in the Government’s favor. As a
result, we find that there was substantial evidence to support the
jury’s verdict, and the district court properly denied Appellants’ Rule
29 motions.
Robinson and Shirley contend that the district court erred in reject-
ing their guilty pleas. We review the district court’s decision to reject
Robinson’s and Shirley’s guilty pleas for an abuse of discretion and
find none. United States v. Morrow, 914 F.2d 608, 611 (4th Cir.
1990). A defendant has "no absolute right to have a guilty plea
accepted." Santobello v. New York, 404 U.S. 257, 260-61 (1971). In
the present case, Shirley made numerous statements to the effect that
he was not guilty of the charges as being presented by the Govern-
ment. Robinson denied distributing crack cocaine. He also made
statements which suggested a misunderstanding of the sentencing pro-
cess and the applicable burdens of proof. Accordingly, we affirm
Appellants’ convictions.
We now turn to the various sentencing and Apprendi claims raised
in this appeal. First, appellants claim that their sentences are infirm
under Apprendi because drug quantity was not charged in the indict-
ment or submitted to the jury. The Supreme Court held in Apprendi
that, "[o]ther than the fact of a prior conviction, any fact that increases
the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable doubt."
Apprendi, 530 U.S. at 490. Factors, such as drug amounts, which sup-
port a particular sentence within the statutory range may be deter-
mined by a preponderance of the evidence. Id. at 485-87.
Because Appellants did not raise this challenge to their sentences
before the district court, they may only do so on appeal if they can
UNITED STATES v. COOMBS 5
demonstrate plain error. United States v. Angle, 254 F.3d 514, 517
(4th Cir.) (en banc) (citing Fed. R. Crim. P. 52(b); United States v.
Olano, 507 U.S. 725, 731-32 (1993)), cert. denied, 122 S. Ct. 309
(2001). Consequently, in order to prevail on appeal, Appellants must
demonstrate that: (1) the specific threshold drug quantities necessary
for conviction under the aggravated drug trafficking offenses in 21
U.S.C.A. §§ 841(b)(a)(A), (B) (West 2000) were not charged in the
indictment or were not submitted to the jury; (2) their resulting sen-
tences were in excess of the statutory maximum otherwise available
under § 841(b)(1)(C); (3) sentencing in this manner affected their sub-
stantial rights; and (4) this court should notice that error. United
States v. Promise, 255 F.3d 150, 156-57, 160-61 (4th Cir. 2001) (en
banc), petition for cert. filed, Sept. 20, 2001 (No. 01-6398).
Applying the plain error analysis to Coombs, we find his sentence
must be vacated in light of Apprendi. Pursuant to § 841(b)(1)(C),
Coombs was exposed to a total statutory maximum prison term of
twenty years. United States v. Angle, 254 F.3d at 518-19. Because the
imposed 360-month sentence exceeds the applicable statutory maxi-
mum of twenty years, the error is plain. Promise, 255 F.3d at 156-57.
With respect to the third prong of the plain error inquiry, we have
found that a sentence in excess of the authorized statutory maximum
to which a defendant would not otherwise be subject affects his sub-
stantial rights. Id. Finally, we recently determined that when the sen-
tence imposed is defective due to a fatal error in the indictment, as
is the case here, this court should notice the error. United States v.
Cotton, 261 F.3d 397, 403-04 (4th Cir. 2001), petition for cert. filed,
Oct. 31, 2001 (No. 01-687). We therefore vacate Coombs’ sentence,
and remand to the district court for re-sentencing.4
We likewise vacate Shirley’s life sentence and remand for resen-
tencing. However, because Shirley has a prior drug felony conviction
and because the Government filed the proper information with the
district court pursuant to 21 U.S.C. § 851 (1994), his statutory maxi-
mum sentence under § 841(b)(1)(C) is thirty years. Shirley is also
4
In light of our order remanding Coombs’ case for resentencing, we
decline to address at this time his claims that the district court improperly
calculated the amount of drugs attributable to him and that the court
erred by enhancing his base offense level for obstruction of justice.
6 UNITED STATES v. COOMBS
exposed to a statutory maximum sentence of twenty years based on
his conviction for illegal reentry by a deported alien. Thus, on
remand, Shirley’s total statutory maximum sentence is fifty years.
Angle, 254 F.3d at 518-19; United States v. White, 238 F.3d 537, 542-
43 (4th Cir.), cert. denied, 121 S. Ct. 2235 (2001).
Because Robinson’s sentence (210 months) did not exceed the stat-
utory maximum under § 841(b)(1)(C), Robinson’s sentence is free of
Apprendi error. United States v. Kinter, 235 F.3d 192, 200-01 (4th
Cir. 2000), cert. denied, 121 S. Ct. 1393 (2001). In addition to his
Apprendi arguments, however, Robinson also challenges his sentence
on the ground that the district court’s determination of the amount of
drugs attributable to him was incorrect. We will uphold the district
court’s factual determination concerning the amount of drugs attribut-
able to Robinson absent clear error. United States v. Lamarr, 75 F.3d
964, 972 (4th Cir. 1996). Robinson’s primary argument at sentencing
(and now on appeal) was that certain witnesses’ statements were not
credible or reliable. The district court resolved this issue against him,
and we find nothing in the record which would justify overturning the
court’s factual findings. See United States v. D’Anjou, 16 F.3d 604,
614 (4th Cir. 1994) (district court’s credibility determinations are
entitled to great deference). As a result, we find that Robinson failed
to meet his burden of showing that the information in the presentence
report concerning the amount of drugs attributable to him was inaccu-
rate. See United States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990).
Finally, Robinson challenges the district court’s application of a
firearm enhacement pursuant to USSG § 2D1.1(b)(1). The Govern-
ment need only prove by a preponderance of the evidence that the
firearms enhancement is applicable, and the district court’s factual
determinations must be upheld unless they are clearly erroneous. See
United States v. Urrego-Linares, 879 F.2d 1234, 1237-38 (4th Cir.
1989). In addition, "[t]he adjustment should be applied if the weapon
was present, unless it is clearly improbable that the weapon was con-
nected with the offense." USSG § 2D1.1, comment. (n.3). In the pres-
ent case, we find that the district court properly applied the
enhancement. A witness testified that she saw Coombs possess a
handgun. We find it reasonably foreseeable to Robinson that his co-
conspirator would possess weapons, especially given the fact that the
conspirators dealt in large amounts of cash and drugs. This is particu-
UNITED STATES v. COOMBS 7
larly true in this case, where there was evidence that Robinson told
a person trying to sell Appellants rifles that they had enough rifles but
needed more handguns.
Accordingly, we affirm Appellants’ convictions and Robinson’s
sentence. We vacate Coombs’ and Shirley’s sentences and remand
with instructions for the district court to sentence them in accordance
with this opinion. We dispense with oral argument because the facts
and legal contentions are adequately presented in the material before
the court and argument would not aid the decisional process.
No. 99-4951 - AFFIRMED IN PART AND
VACATED AND REMANDED IN PART
No. 00-4008 - AFFIRMED
No. 00-4243 - AFFIRMED IN PART AND
VACATED AND REMANDED IN PART