UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-4771
CEDRIC LEVAR ALEXANDER,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
James H. Michael, Jr., Senior District Judge.
(CR-01-35)
Submitted: March 25, 2003
Decided: April 23, 2003
Before NIEMEYER, WILLIAMS, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
William F. Quillian, III, Lynchburg, Virginia, for Appellant. John L.
Brownlee, United States Attorney, Bruce A. Pagel, Assistant United
States Attorney, Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. ALEXANDER
OPINION
PER CURIAM:
Cedric Levar Alexander was convicted by a jury of conspiracy to
possess with intent to distribute 50 grams or more of crack cocaine,
21 U.S.C. § 846 (2000) (Count One), and aiding and abetting the pos-
session of 50 grams or more of crack cocaine with intent to distribute,
21 U.S.C. § 841 (2000), 18 U.S.C. § 2 (2000) (Count Two). He
appeals the 324-month sentence he received, contending that the dis-
trict court erred on factual and legal grounds in determining his sen-
tence by finding that he was responsible for 672 grams of crack and
that he possessed a firearm in connection with the offense. U.S. Sen-
tencing Guidelines Manual § 2D1.1 (2001). Alexander also maintains
that § 841 and § 846 are unconstitutional in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000). Finding no merit in these contentions,
we affirm.
Alexander was a passenger in a car stopped for speeding on Route
29 in Virginia on September 24, 2000. The car belonged to Alexan-
der’s wife, but was being driven by Antonio Christian. Because nei-
ther Christian nor Alexander had a valid driver’s license, the officer
arranged for the car to be towed and offered to give the men a ride
to the nearest gas station. While the officer was completing his paper-
work, Alexander got out of the car in an unusual fashion, grabbing the
top of the vehicle and backing out so that he did not turn his back on
the officer. He then walked to the front of the patrol car and remained
there even after the officer told him twice to get back in the car.
Because of this behavior, the officer asked Alexander for permis-
sion to pat him down before putting him in the patrol car. Alexander
agreed. As the officer conducted the pat-down from behind Alexan-
der, he felt a "large bulge" in the small of Alexander’s back which
seemed to be the hammer of a revolver. At the same time, the officer
heard the sound of plastic and felt a hard rock-like substance in the
same area. The officer told Alexander to put his hands on the patrol
car. Instead, Alexander turned around and tried to grab the officer’s
hands. When the officer drew his revolver, Alexander ran into the
woods. The officer pursued him briefly while calling for back-up, but
then abandoned the chase and returned to the cars.
UNITED STATES v. ALEXANDER 3
Christian was gone. The jacket he had been wearing was still in the
car and in the pocket was a plastic bag containing 248.2 grams (nearly
nine ounces) of crack. The officer noticed that a cereal box in the
back seat that had previously been closed had been moved and
opened. When another officer arrived with a drug detection dog, the
dog alerted on three of the car’s door handles, the driver’s seat, the
rear seat, the cereal box on the floor in the back seat, and the area
between the front seats. In the glove box of the car, the officers found
papers relating to the suspension of Alexander’s driver’s license.
Christian was apprehended a short distance from the vehicle.
Authorities learned from him that he and Alexander had each pur-
chased nine ounces of crack in Washington before they were stopped
and that Alexander had concealed his crack in the cereal box. Chris-
tian said he had made two such trips with Alexander before and that
Alexander bought three ounces of crack on each prior trip.
Alexander meanwhile made his way to a house where Dustin
Catella agreed to drive him to Charlottesville for $600. Trista Smith
and Mike Falciglia went along for the ride. In Charlottesville, Alexan-
der borrowed Catella’s cell phone and made several calls. Catella then
drove Alexander to Lynchburg where Alexander was picked up by
two people. During the drive, Alexander told Catella he was "running
from the police" because he "had dope on him" and that he had left
the drugs in the woods.
Following Alexander’s conviction, the district court credited the
information provided by Christian concerning Alexander’s drug traf-
ficking activities to determine the amount of crack for which he was
responsible. The court’s factual finding is reviewed for clear error.
United States v. Randall, 171 F.3d 195, 210 (4th Cir. 1999). Alexan-
der contends on appeal that he should be accountable for no more
than the nine ounces of crack that were seized because Christian must
have fabricated the additional drug quantities in an attempt to receive
favorable treatment from the prosecutor and the court.* However,
Alexander did not offer anything more than speculation to discredit
Christian at the sentencing hearing. While it is true that the govern-
*Despite his initial cooperation, Christian also went to trial, and did
not receive a departure for substantial assistance.
4 UNITED STATES v. ALEXANDER
ment presented no evidence to corroborate Christian’s allegation that
Alexander bought a total of six ounces of crack on two previous trips
to Washington, Christian’s statement concerning Alexander’s pur-
chase of nine ounces of crack on September 24 was corroborated by
the officer’s experience and observations at the scene of the traffic
stop and by Alexander’s statements to Catella. These facts lent credi-
bility to Christian’s statement that Alexander had also made prior
crack purchases. On this record, we are not able to conclude that the
district court clearly erred in finding Christian’s information reliable
or credible. See Randall, 171 F.3d at 211 (defendant has burden of
showing that disputed information in presentence report is unreliable
or inaccurate). Therefore, the court did not clearly err in attributing
672 grams of crack to Alexander.
Nor did this determination violate the rule set out in Apprendi. The
jury’s finding that Alexander conspired to possess with intent to dis-
tribute "50 grams or more" of crack established a maximum statutory
sentence of life imprisonment under § 841(b)(1)(A). Judicial factfind-
ing under the sentencing guidelines to determine the sentence within
the statutory range does not implicate Apprendi. United States v. Kin-
ter, 235 F.3d 192, 201 (4th Cir. 2000). The relevant "maximum"
under Apprendi is found in the statute, not the guidelines. Id.
Next, Alexander challenges the two-level enhancement under
USSG § 2D1.1(b)(1) for possession of a dangerous weapon during the
offense. The enhancement must be made if a "weapon was present,
unless it is clearly improbable that the weapon was connected with
the offense." As with other factual questions, the district court’s deter-
mination that a weapon enhancement was warranted is reviewed for
clear error. United States v. Harris, 128 F.3d 850, 853 (4th Cir. 1997)
("proximity of guns to illicit narcotics" is enough to support enhance-
ment).
Alexander argues that the evidence was insufficient to establish
that he possessed a firearm because the deputy did not see a gun and
none was recovered. He also contends that the guideline requires, or
at least implies, that a gun must be found or its existence confirmed
conclusively before the enhancement may be made because a connec-
tion between the gun and the drugs cannot otherwise be established.
However, the officer’s testimony that he felt what he believed to be
UNITED STATES v. ALEXANDER 5
the hammer of a revolver under Alexander’s shirt was sufficient evi-
dence that Alexander possessed a gun. Moreover, the presence of the
gun in the car with the nine ounces of crack that were seized war-
ranted the enhancement. As discussed above, this guideline sentence
enhancement did not violate Apprendi.
Last, citing Apprendi, 530 U.S. at 490, Alexander argues that § 841
(and by extension § 846) is unconstitutional on its face because it
removes "from the jury, the assessment of facts that increase the pre-
scribed range of penalties to which a criminal defendant is exposed."
As previously discussed, the district court’s determination of factors
relevant to the guideline sentence does not affect the statutory range
determined under § 841. In addition, this Court has held that § 841
does not conflict with the rule set out in Apprendi because it does not
prescribe how the elements of the crime or other relevant facts should
be determined, and thus is not unconstitutional on its face. United
States v. McAllister, 272 F.3d 228, 232 (4th Cir. 2001). Alexander’s
claim consequently fails.
We therefore affirm the sentence imposed by the district court. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED