United States v. McGill

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4732
ANDREW JAMES MCGILL, JR.,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, District Judge.
(CR-99-214-DKC)

Submitted: October 24, 2002

Decided: November 7, 2002

Before WIDENER, MOTZ, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

COUNSEL

William C. Brennan, Jr., BRENNAN, TRAINOR, BILLMAN &
BENNETT, L.L.P., Upper Marlboro, Maryland, for Appellant.
Thomas M. DiBiagio, United States Attorney, Stuart A. Berman,
Assistant United States Attorney, James M. Trusty, Assistant United
States Attorney, Greenbelt, Maryland, for Appellee.
2 UNITED STATES v. MCGILL
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

OPINION

PER CURIAM:

Andrew James McGill, Jr., appeals his conviction on a jury verdict
on a charge of conspiracy to distribute marijuana, in violation of 21
U.S.C. § 846 (2000). After trial but before sentencing, the Supreme
Court issued its opinion in Apprendi v. New Jersey, 530 U.S. 466
(2000). At sentencing, McGill claimed, inter alia, that under
Apprendi, the absence of a jury finding on drug quantity limited the
maximum sentence to five years under 21 U.S.C.A. § 841(b)(1)(D)
(West 1999 & Supp. 2002). At sentencing, the district court rejected
McGill’s Apprendi claim, ruling that the statutory maximum for
McGill’s conspiracy conviction was twenty years under 21 U.S.C.A.
§ 841(b)(1)(C) (West 1999 & Supp. 2002). The district court sen-
tenced McGill to 188 months imprisonment, three years supervised
release, and a $100 special assessment. McGill appeals, claiming that
this court should notice as plain error the 188-month sentence
imposed because a specific threshold drug quantity relative to the
conspiracy for which he was convicted was neither alleged in the
indictment nor proven to the jury beyond a reasonable doubt. He fur-
ther claims clear error by the district court relative to the quantity of
marijuana the district court attributed to him for his role in the con-
spiracy. Finally, he claims the district court abused its discretion by
limiting cross-examination of a government witness. For the reasons
stated below, we affirm McGill’s conviction and sentence.

Because McGill failed to challenge the indictment or object to the
jury instructions on drug quantity before the jury verdict, this court
reviews his sentence for plain error. Fed. R. Crim. P. 52(b); United
States v. Olano, 507 U.S. 725, 731-32 (1993). To find plain error, we
must find that an error occurred, that the error was plain, and that the
error affected McGill’s substantial rights. United States v. Promise,
255 F.3d 150, 154 (4th Cir. 2001) (en banc) (citing United States v.
Olano, 507 U.S. 725, 732 (1993)), cert. denied, ___ U.S. ___, 122
 UNITED STATES v. MCGILL 3
S. Ct. 2296 (2002). If these three conditions are met, correction of the
error remains within the sound discretion of the court, and we should
not exercise that discretion unless the error seriously affects the fair-
ness, integrity or public reputation of judicial proceedings. Id.

In applying a plain error analysis in United States v. Cotton, ___
U.S. ___, 122 S. Ct. 1781 (2002), the Supreme Court reaffirmed its
holdings in Apprendi and Jones v. United States, 526 U.S. 227 (1999),
and declined to resolve whether defendants could show that the plain
error affected their substantial rights, concluding that the error did not
seriously affect the fairness, integrity, or public reputation of judicial
proceedings. Id. at 1786. In analyzing the fourth prong of the plain
error test, the Court found that the evidence supporting the conclusion
that the narcotics conspiracy involved a threshold drug quantity was
"overwhelming and essentially uncontroverted." Id. The Supreme
Court noted that much of the evidence in Cotton revealed an involve-
ment far greater than the relevant threshold drug quantity, and stated
that the grand jury, having found that the conspiracy existed, also
would have found that the conspiracy involved at least fifty grams of
cocaine base. Cotton, 122 S. Ct. at 1786.

We have considered the evidence in this record and the arguments
of the parties, and find that, applying the same rationale as that
applied by the Supreme Court in Cotton, the error in McGill’s sen-
tence, while plain, did not affect the fairness, integrity, or public repu-
tation of judicial proceedings, given the overwhelming and essentially
uncontroverted evidence that the drug conspiracy of which McGill
was convicted involved well over the fifty kilograms of marijuana on
which his sentence was enhanced. See Cotton, 122 S. Ct. at 1785-86.
Nor do we find clear error in the district court’s finding that 1000
kilograms of marijuana were attributable and foreseeable to McGill
considering his role in the conspiracy.

The evidence at the trial of this matter demonstrated the extraordi-
nary scope and pace of drug sales involved in this conspiracy.1 The
1
A videotape used at trial illustrated the fast pace of drug sales in the
vicinity of 37 Forrester. Cooperating witnesses all testified that sales
were substantially faster in 1996 and 1997, during the time period
4 UNITED STATES v. MCGILL
district court carefully reviewed the various evidentiary bases avail-
able to it concerning drug quantity. It relied upon the testimony of
Erskine Hartwell, trial testimony from other sellers regarding the
amount of marijuana sold, testimony of the surveillance officers, testi-
mony about McGill’s own purchases and attempted purchases of mar-
ijuana, and the videotape of the numerous drug transactions that
occurred, to conclude, based upon a conservative version of the evi-
dence and assuming only five pounds of marijuana were trafficked a
day,2 that substantially more than fifty kilograms of marijuana were
involved in this ten-year conspiracy and over 1000 kilograms were
attributable to McGill. Based upon the plethora of trial evidence that
could have supported a drug quantity many times greater than that
needed to invoke the enhanced sentencing range, we find that the evi-
dence supporting the district court’s findings as to the quantity of
marijuana involved in this vast drug conspiracy is overwhelming and
essentially uncontroverted. In addition, we find the district court’s
factual determination that 1000 kilograms of marijuana was foresee-
able and attributable to McGill, based upon the duration of his mem-
bership in the conspiracy, to be sufficiently detailed and fully
supported by trial evidence.

McGill advances several arguments to distinguish his case from
Cotton, and to support his claim that the evidence against him was not
overwhelming and essentially uncontroverted. He contends that the

McGill was found to have been directly involved in the conspiracy. A
number of co-conspirators testified as to the extent of their personal
knowledge of marijuana sales. Hilary Haynes testified that during the
pertinent time he was selling 10 to 15 pounds of marijuana each week.
Jeffrey Ewing testified that he was selling at least one-half pound of mar-
ijuana per day in 1996-97 and that approximately seven pounds per day
were sold in his presence during that same period of time. Erskine Hart-
well estimated that during 1996, each of the ten sellers identified at trial
was selling one-half pound to a pound of marijuana per day near 37 For-
rester. Even McGill, by counsel, admitted to the Probation Office that in
his estimation, the conspiracy trafficked 130 pounds or 58.5 kilograms
of marijuana each year, which would arguably total more than 500 kilo-
grams.
2
The government arguably demonstrated that marijuana sales in the
vicinity of 37 Forrester approached ten pounds per day.
 UNITED STATES v. MCGILL 5
grand jury in his case engaged in a protracted process of adding and
subtracting both drugs and defendants, that several charges against
him were rejected by the grand jury, and claims that none of the ear-
lier indictments in his case alleged any drug quantities. Also, McGill
cites his specific objection to the drug quantity calculations in the pre-
sentence report, and claims that most of the evidence came from co-
defendants who had entered into plea agreements with the govern-
ment in exchange for their testimony. Finally, McGill asserts that the
total quantity of marijuana that witnesses claimed McGill allegedly
purchased, attempted to purchase, or attempted to sell was only three
and 3/4 pounds, or 1.68 kilograms, and he contends that it is that
amount only for which he should be held accountable.
We find these arguments to be without merit. That McGill objected
to the drug quantity calculations in the presentence report and at the
sentencing hearing does not change this court’s analysis, nor does it
preclude this court from affirming the district court’s well-founded
determinations as to the amounts of marijuana involved in this ten-
year conspiracy, and the amount properly attributable to McGill. The
jury clearly found a ten-year marijuana conspiracy, and the scope of
that conspiracy was not limited to the amounts with which McGill
personally was involved. Moreover, under the Sentencing Guidelines,
the district court properly found that McGill was subject to sentencing
based on the total quantity of marijuana reasonably foreseeable during
the period McGill was involved in this wide-scale conspiracy. U.S.
Sentencing Guidelines Manuel § 1B1.3, comment. (n.1) (1999); see,
e.g., United States v. Irvin, 2 F.3d 72, 78 (4th Cir. 1993). Also, Cotton
does not limit plain-error analysis in narcotics cases to cases in which
drug quantities were initially charged and later omitted. Because
McGill was on notice of the specific drug quantities and possible pen-
alties through the factual statements in the plea agreements of the tes-
tifying co-defendants which were provided to him and were part of
the trial court record, any claim that he had no notice of the specific
drug quantities for which he could be held accountable is without
merit. Nor is the fact that some of the evidence supporting McGill’s
conviction and the district court’s findings as to drug quantity came
from testimony of his co-conspirators sufficient to set aside those
findings, as McGill claims. See, e.g., United States v. Manbeck, 744
F.2d 360, 392 (4th Cir. 1984). Finally, McGill’s assertion that the
facts that the petit jury rejected the government’s claim of his
6 UNITED STATES v. MCGILL
involvement in the crack portion of the conspiracy, acquitted him of
interstate auto theft, and was unable to agree on the false statement
count, do not support a different decision. Rather, the jury’s findings
relative to those other charges speak to those other charges and have
no bearing on the jury’s likelihood to have found that this conspiracy
would have involved at least fifty kilograms of marijuana, had such
a quantity been charged.
As to McGill’s second issue on appeal, this court reviews the dis-
trict court’s limitation on a defendant’s cross-examination of a gov-
ernment witness for abuse of discretion. United States v. McMillon,
14 F.3d 948, 955-56 (4th Cir. 1994). McGill’s complaint is with the
district court’s limitation of the cross-examination of Officer Linda
Lewis regarding a thirty-day suspension from the police department
for withholding or failing to disclose a health-related condition to her
superiors. McGill claims the district court’s refusal to allow him to
cross-examine her as to this issue was reversible error because Lewis
was a major government witness whose credibility was strongly con-
tested by McGill. He asserts his constitutional right of confrontation
was abridged by the district court’s ruling in this regard.
The district court has absolute discretion to curtail cross-
examination based upon concerns about harassment, annoyance, prej-
udice, confusion of the issues, witness safety, repetition, humiliation,
or relevance. Id. at 956; Fed. R. Evid. 611; Delaware v. Van Arsdall,
475 U.S. 673, 679 (1986). Here, the district court allowed thorough
and substantive inquiry by the defense into Lewis’s credibility. In
addition, Lewis was but one of several police officers providing testi-
mony regarding McGill’s involvement with the Forrester Street drug
market. While she alone testified to several facts damaging to McGill,
we find the district court properly weighed the value of allowing fur-
ther cross-examination of Lewis against its probative value, and thus
did not abuse its discretion in limiting McGill’s cross-examination of
her. Fed. R. Evid. 403; United States v. Powers, 59 F.3d 1460, 1467
(4th Cir. 1995).
Accordingly, we affirm McGill’s conviction and sentence. We dis-
pense 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