UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4802
TERENCE JEROME RICHARDSON,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4803
FERRONE CLAIBORNE, a/k/a Ron,
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert E. Payne, District Judge.
(CR-00-383)
Submitted: September 11, 2002
Decided: October 29, 2002
Before WILKINS, WILLIAMS, and KING, Circuit Judges.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
2 UNITED STATES v. RICHARDSON
COUNSEL
Michael Hu Young, BARNES & BATZLI, P.C., Glen Allen, Vir-
ginia, for Appellant Richardson; Charles A. Gavin, BLACKBURN,
CONTE, SCHILLING & CLICK, P.C., Richmond, Virginia, for
Appellant Claiborne. Paul J. McNulty, United States Attorney, David
J. Novak, Assistant United States Attorney, Thomas E. Booth,
UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Terence Richardson and Ferrone Claiborne (collectively, "Appel-
lants") appeal their convictions and sentences for conspiracy to dis-
tribute 50 grams or more of cocaine base. See 21 U.S.C.A. § 846
(West 1999). We affirm in part and dismiss in part.
I.
Beginning in 1991, Appellants sold cocaine base for the "Dogwood
crew" on Dogwood Street in Waverly, Virginia. A few years later,
Appellants began selling cocaine base at the nearby Waverly Village
Apartments (the Village).
On the morning of April 25, 1998, after Appellants and another
individual, Shawn Wooden, obtained a quantity of cocaine base at the
Village, the three men walked into some nearby woods. Officer Allen
Gibson of the Waverly Police Department observed them and began
to follow. As Wooden began to sample the cocaine base, Gibson
approached the three men and ordered them to halt. Gibson attempted
to apprehend Richardson by grabbing his T-shirt as he tried to run
UNITED STATES v. RICHARDSON 3
away. Claiborne then grabbed Gibson from behind. During the ensu-
ing struggle, Richardson shot Gibson in the stomach with Gibson’s
firearm. Richardson, Claiborne, and Wooden fled.
Police arrived at the scene later that morning and found Gibson
lying in the woods. His weapon was approximately ten feet away.
Although Gibson was losing consciousness he was able to state that
he had followed two males into the woods because he thought they
were dealing narcotics. Gibson’s description of the two men, with a
few minor inconsistencies, matched that of Appellants. Gibson also
stated that he had struggled with the men and that they had taken his
firearm. Gibson explained that he tried to point the weapon away
from himself, but then "[t]hey shot me with my own . . . gun." J.A.
89 (internal quotation marks omitted). Gibson died later that day.
The day after the shooting, police arrested Richardson and seized
from his father’s home a T-shirt that Richardson was wearing on the
day Officer Gibson was shot. Two days later, police arrested Clai-
borne. Both men claimed to have been elsewhere at the time of the
shooting. In December 1999, however, Richardson pleaded guilty in
state court to the involuntary manslaughter of Gibson, and Claiborne
pleaded guilty to being an accessory after the fact.
A firearms examiner determined that the trigger pull on Gibson’s
firearm was 7.5 pounds and that the weapon had three safety features
to prevent an unintended firing. The examiner also determined that
the fatal shot was fired six to twelve inches from Gibson’s body, with
twelve inches being the more likely distance.
Appellants were indicted for conspiring to distribute 50 grams or
more of cocaine base, see 21 U.S.C.A. § 846; killing a law enforce-
ment agent during narcotics trafficking, see 21 U.S.C.A.
§ 848(e)(1)(B) (West 1999); and using a firearm to commit murder
during narcotics trafficking, see 18 U.S.C.A. § 924(j) (West 2000). A
jury convicted Appellants of the narcotics conspiracy but acquitted
them of the murder and firearms charges.
At sentencing, the district court applied a cross-reference to the
first degree murder guideline based on its factual finding, by clear and
convincing evidence, that Appellants had "killed [Gibson] under cir-
4 UNITED STATES v. RICHARDSON
cumstances that would constitute murder under 18 U.S.C. § 1111."
United States Sentencing Guidelines Manual § 2D1.1(d)(1) (2001).
Application of the cross-reference yielded a base offense level of 43
for both Appellants. The district court determined that the Guidelines
directed imposition of life sentences.
Appellants then moved for a downward departure on the grounds
that they had been prosecuted in state court for Gibson’s murder, they
had been acquitted of the federal murder charge, and they were now
faced with presumptive life sentences based on the cross-reference.
The district court expressly recognized that it could depart downward
but declined to do so, explaining that this case was not atypical
because deaths are often caused by the use of firearms in connection
with narcotics trafficking, the killing of Gibson was very serious, and
the successive prosecutions were not onerous.
II.
Appellants first claim that there was insufficient evidence to sup-
port their convictions, arguing that their individual sales of cocaine
base on Dogwood Street and at the Village were too fragmented and
sporadic to constitute the single conspiracy that was charged. To
decide whether the evidence is sufficient to support Appellants’ con-
victions, we must determine whether "there is substantial evidence,
taking the view most favorable to the Government, to support" the
verdict. Glasser v. United States, 315 U.S. 60, 80 (1942).
The elements of a narcotics trafficking conspiracy are (1) the exis-
tence of an agreement between two or more persons to distribute nar-
cotics, (2) the defendant’s knowledge of the conspiracy, and (3) the
defendant’s knowing and voluntary participation in the conspiracy.
See United States v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996) (en
banc). A single conspiracy exists when it has "the same objective,
. . . the same goal, the same nature, the same geographic spread, the
same results, and the same product." United States v. Capers, 61 F.3d
1100, 1107 (4th Cir. 1995) (internal quotation marks omitted). Fur-
ther, a single conspiracy may be found even when there is "a loosely-
knit association of members linked only by their mutual interest in
sustaining the overall enterprise." Id. (internal quotation marks omit-
ted).
UNITED STATES v. RICHARDSON 5
Here, the evidence showed that Appellants and their various cocon-
spirators often sold cocaine base together on Dogwood Street and at
the Village. Further, there was an overlap of participants, suppliers,
customers, and time at these locations. Thus, the evidence amply sup-
ported Appellants’ narcotics conspiracy convictions.1
III.
Appellants advance several legal and factual arguments challeng-
ing the application of the murder cross-reference. We review the fac-
tual findings of the district court for clear error, and we review its
legal interpretation of the Sentencing Guidelines de novo. See United
States v. Dawkins, 202 F.3d 711, 714 (4th Cir. 2000).
A.
Appellants first argue that application of the cross-reference vio-
lates due process because it punishes them under the first degree mur-
der guideline, even though the district court found that they had
committed a second degree murder. We disagree. First, it is clear that
a defendant has no due process right to a particular sentence within
the range authorized by statute. See Gardner v. Florida, 430 U.S. 349,
358 (1977) (plurality opinion). Here, Appellants were sentenced
within the statutory maximum—life imprisonment—for their offense
of conviction, conspiracy to distribute 50 grams or more of cocaine
base. See 21 U.S.C.A. § 841(b)(1)(A)(iii) (West 1999 & Supp. 2002).
Further, as the Supreme Court has explained, "sentencing enhance-
1
Appellants also contend that the Government’s witnesses were unreli-
able because many of them were narcotics offenders who sought
leniency in their own cases. This argument ignores that the jury, not this
court, determines witness credibility. See United States v. Wilson, 118
F.3d 228, 234 (4th Cir. 1997). Indeed, the witnesses’ criminal records,
inconsistent statements, and agreements with the Government were fully
disclosed to the jury.
Claiborne argues that the district court erred in admitting evidence of
narcotics sales he made while he was a minor. This argument fails
because it is clear that Claiborne continued to participate in the narcotics
conspiracy after he became an adult. See United States v. Spoone, 741
F.2d 680, 687 (4th Cir. 1984).
6 UNITED STATES v. RICHARDSON
ments do not punish a defendant for crimes of which he was not con-
victed, but rather increase his sentence because of the manner in
which he committed the crime of conviction." United States v. Watts,
519 U.S. 148, 154 (1997) (per curiam). Thus, there was no due pro-
cess violation.
We also reject Appellants’ argument that the cross-reference vio-
lates nondelegation and separation of powers principles because it
"creates" a new offense—second degree murder committed during a
narcotics crime, punishable by life imprisonment. The Sentencing
Guidelines do not create any offenses; they determine punishment
based on the manner in which an offense is committed. See id.; Witte
v. United States, 515 U.S. 389, 402-03 (1995).
In addition, the Supreme Court has rejected arguments that the
Sentencing Guidelines as a whole violate nondelegation and separa-
tion of powers principles. See Mistretta v. United States, 488 U.S.
361, 412 (1989). And, § 2D1.1(d)(1) is consistent with Congress’
intent to provide increased punishment when the offense of convic-
tion is accompanied by other criminal activity. See id. at 375, 377.
Appellants’ argument that application of the cross-reference vio-
lates Apprendi v. New Jersey, 530 U.S. 466 (2000), is also meritless.
In Apprendi, the Supreme Court held 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." Id. at 490. The "pre-
scribed statutory maximum" is found by reference to the statute of
conviction, not the Sentencing Guidelines, as Appellants contend. See
United States v. Kinter, 235 F.3d 192, 200-01 (4th Cir. 2000), cert.
denied, 532 U.S. 937 (2001). Here, Appellants were sentenced within
the statutory maximum—life imprisonment—for their offense of con-
viction. See 21 U.S.C.A. § 841(b)(1)(A)(iii). Thus, Apprendi is inap-
plicable.
B.
We now turn to Appellants’ factual challenges to the application of
the murder cross-reference. For the cross-reference to apply, a homi-
cide must meet the statutory definition of murder under 18 U.S.C.A.
UNITED STATES v. RICHARDSON 7
§ 1111 (West 2000). See U.S.S.G. § 2D1.1(d)(1). That statute defines
murder as "the unlawful killing of a human being with malice afore-
thought." 18 U.S.C.A. § 1111(a).
We conclude that the district court did not commit clear error in
finding that Appellants killed Officer Gibson. The district court based
this finding on Gibson’s reasonably accurate description of the Appel-
lants as his assailants, the corroborating testimony of Wooden and
another eyewitness, Appellants’ guilty pleas in state court, and their
false alibis. These facts amply support the finding that Appellants
murdered Gibson.
Similarly, the finding of the district court that Appellants killed
Gibson with malice aforethought is not clearly erroneous. The district
court emphasized that the three men struggled and that Claiborne
pulled Gibson from the back while Richardson pulled him from the
front. Further, the court noted that Gibson’s firearm had a medium
trigger pull and three safety features to prevent an accidental shoot-
ing, and that Richardson had the weapon in his hand after the shot
was fired. This evidence supports the conclusion that Richardson
intentionally shot Gibson. At the very least, malice was established
because Appellants engaged in reckless and wanton conduct that
presented a high risk of death or serious bodily harm to Gibson. See
United States v. Fleming, 739 F.2d 945, 947-48 (4th Cir. 1984).2
C.
Finally, Appellants argue that the district court erred in denying
their motions for a downward departure. We may review a refusal to
2
We need not resolve the parties’ disagreement about whether the dis-
trict court properly applied a clear and convincing evidence standard,
rather than a preponderance of the evidence standard, to its factual find-
ings at sentencing. Under either standard, the evidence amply supported
the findings of the district court, so there was no clear error. See United
States v. Montgomery, 262 F.3d 233, 249-50 (4th Cir.), cert. denied, 122
S. Ct. 576 (2001).
Also, because we affirm the application of the murder cross-reference,
we do not consider Appellants’ arguments that the narcotics quantity
findings by the district court were erroneous.
8 UNITED STATES v. RICHARDSON
depart downward only if the district court erroneously believed that
it lacked the authority to do so. See United States v. Aramony, 166
F.3d 655, 665 (4th Cir. 1999). Here, the district court expressly recog-
nized its power to depart, but it denied Appellants’ motions on the
merits. Thus, the decision to deny the downward departure motions
is not reviewable, and we dismiss that portion of the appeal.
IV.
For the reasons set forth above, we affirm Appellants’ convictions
and sentences, and we dismiss the part of the appeal challenging the
denial of Appellants’ downward departure motions. 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 IN PART; DISMISSED IN PART