UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KEON ALLEN, a/k/a Mike Jones, No. 02-4094
a/k/a Benny Jones, a/k/a Mark Sinc,
a/k/a Benny,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., District Judge.
(CR-01-10)
Argued: February 28, 2003
Decided: June 2, 2003
Before WILLIAMS, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Christopher P. Riley, BAILEY, RILEY, BUCH & HAR-
MAN, L.C., Wheeling, West Virginia, for Appellant. Samuel Gerald
Nazzaro, Jr., Assistant United States Attorney, Wheeling, West Vir-
ginia, for Appellee. ON BRIEF: Thomas E. Johnston, United States
Attorney, John C. Parr, Assistant United States Attorney, Wheeling,
West Virginia, for Appellee.
2 UNITED STATES v. ALLEN
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Keon Allen pleaded guilty to four counts of a 42-count indictment
alleging, inter alia, that he participated in a conspiracy to possess with
intent to distribute and to distribute more than 50 grams of cocaine
base in violation of 21 U.S.C.A. §§ 841(b)(1)(A)(iii) and 846 (West
1999 & Supp. 2003). Allen appeals from the district court’s imposi-
tion of a 170-month sentence on the cocaine base conspiracy count,
arguing that the district court erred in concluding that his guilty plea
to that count established that at least 50 grams of cocaine base were
attributable to him for sentencing purposes. Finding no reversible
error, we affirm.
I.
Allen was indicted on May 30, 2001, in the United States District
Court for the Northern District of West Virginia, in a 14-defendant,
42-count indictment. On October 10, 2001, Allen pleaded guilty to
four counts in the indictment, including Count I, which alleged a con-
spiracy to distribute more than 50 grams of cocaine base. Count I is
the subject of this appeal.
At Allen’s plea hearing, Special Agent Manchas of the Drug
Enforcement Agency testified to provide a factual basis for the plea.
Manchas stated that an investigation into suspected cocaine base dis-
tribution in Wheeling, West Virginia, led to the discovery of a con-
spiracy to distribute cocaine base involving Allen. During the course
of the investigation, Manchas testified, several "controlled buys" were
made from Allen in different locations. The total weight of the
cocaine base purchased from Allen in these controlled buys was 0.8
grams. Manchas also described what investigators had learned about
Allen’s dealings in cocaine base from other witnesses, describing
statements from witnesses and testimony before the grand jury indi-
UNITED STATES v. ALLEN 3
cating that Allen regularly sold cocaine base at several locations in
Wheeling over a period of at least four to five months.
The district court asked Allen at the plea hearing how he pleaded
to each of the four counts in question. To the question concerning
Count I, Allen responded "[g]uilty, sir." The district court then asked
several follow-up questions concerning the allegations in Count I to
ensure that Allen’s plea was knowing and voluntary. In response to
one of these questions, Allen’s attorney suggested that Allen might
wish to challenge the amount of drugs attributable to him, but was
prepared to plead guilty to the allegations in the indictment. The dis-
trict court stated that Allen’s challenge would be dealt with at the time
of sentencing.
Following Allen’s guilty plea, the probation officer prepared a pre-
sentence report (PSR). The PSR calculated the drug quantity attribut-
able to Allen as follows: 0.8 grams of cocaine base from the
controlled buys, 2 grams of cocaine base testified to by Anton Drake
before the grand jury, 1.5 grams of cocaine base testified to by Randy
Riddle before the grand jury, and 52.5 grams of cocaine base testified
to by Mary Ann Gentry before the grand jury, for a total of 56.8
grams of cocaine base.
Allen filed objections to the PSR, including challenges to the
PSR’s conclusion that his guilty plea to Count I of the conspiracy
established a minimum drug quantity attributable to him for purposes
of determining relevant conduct under the Sentencing Guidelines, and
to the PSR’s use of grand jury testimony by Drake, Riddle, and Gen-
try to determine the drug amount attributable to him. The district
court heard argument on Allen’s objections, and Allen testified on his
own behalf. Allen stated that he had distributed only between 5 and
20 grams of cocaine base, rather than the full amount attributed to
him by the PSR. The district court overruled Allen’s objections and
imposed a sentence of 170 months imprisonment, based on distribu-
tion of more than 50 grams of cocaine base. Allen timely noted this
appeal.
II.
Allen’s sole argument on appeal is that the district court erred in
sentencing him based on a drug quantity of more than 50 grams of
4 UNITED STATES v. ALLEN
cocaine base. More precisely, Allen asserts that the district court erred
in apparently permitting him, during the plea hearing, to reserve the
right to challenge drug quantity for sentencing purposes, then revers-
ing course at sentencing and concluding that his guilty plea to an
indictment charging a specific drug quantity foreclosed his challenge
to that quantity. In this regard, Allen relies heavily on our holding in
United States v. Gilliam, 987 F.2d 1009 (4th Cir. 1993), in which we
held that a defendant’s plea of guilty to an indictment alleging a con-
spiracy to distribute 30 kilograms of cocaine did not establish that 30
kilograms were attributable to him for sentencing purposes. Id. at
1014 (noting that "while a plea of guilty to an indictment containing
an allegation of the amount of drugs for which a defendant is respon-
sible may, in the absence of a reservation by the defendant of his right
to dispute the amount at sentencing, constitute an admission of that
quantity for sentencing purposes," a guilty plea to a conspiracy indict-
ment that contains an allegation of quantity as to the conspiracy as a
whole, but does not contain an allegation of a specific amount attrib-
utable to the individual defendant, does not constitute such an admis-
sion).
As the district court questioned Allen to ensure that his guilty plea
was knowing and voluntary, the following colloquy occurred:
The court: [H]ave you or your attorney, Mr. Dyer, found
any defense to the charge made in any of
these counts?
Allen: Not at this time, Your Honor.
The court: What defense do you think you might have at
any time in this case?
Counsel: Your Honor, the defendant is probably speak-
ing specifically to some of the allegations that
have been made during some of the debrief-
ings about the quantities of drugs he had been
involved with and those sorts of things, but
with respect to the specific counts and allega-
tions within the indictment, he understands he
pleads guilty.
UNITED STATES v. ALLEN 5
The court: Do you understand that, Mr. Allen? You are
disputing the amount of drugs that are
involved, do you think?
Allen: Yes, sir, Your Honor.
The court: All right. And that’s something we’ll work
out at the time of sentencing; do you under-
stand that?
Allen: Yes, sir, Your Honor.
(J.A. at 89-90.) Later, at sentencing, the district court rejected Allen’s
challenge to drug quantity for two reasons. First, it stated that Allen’s
"plea of guilty specifically identifies the amount being more than 50
grams." (J.A. at 143.) Second, the district court stated that "there is
nothing that I have heard that would cause me to indicate that Ms.
Gentry’s testimony was incredible or unbelievable or false or perjured
and it supports" Allen’s plea. (J.A. at 147.) Accordingly, the district
court overruled Allen’s challenge to the PSR’s quantity determina-
tion, adopted the quantity determination in the PSR, and sentenced
Allen accordingly. We customarily review a district court’s drug
quantity determination for purposes of sentencing for clear error.
United States v. Randall, 171 F.3d 195, 210 (4th Cir. 1999). As we
explain below, however, we believe that Allen’s challenge to his sen-
tence implicates questions of both law and fact; in this circumstance,
questions of law are reviewed de novo, questions of fact are reviewed
for clear error, and mixed questions of law and fact are reviewed
under a standard that gives due deference to the district court. United
States v. Nale, 101 F.3d 1000, 1003 (4th Cir. 1996).
As an initial matter, we dispose of the Government’s contention
that if we accept Allen’s characterization of the plea colloquy, there
was an error (whether or not cognizable at this stage in the case) in
accepting his guilty plea. Allen argues that although he admitted at
the plea colloquy the drug quantity attributable to the conspiracy as
a whole, he reserved the right to argue at sentencing that he distrib-
uted 50 grams or less of cocaine base; the Government contends that
in order to plead guilty to Count I of the indictment, Allen had to
admit personal responsibility for more than 50 grams of cocaine base,
6 UNITED STATES v. ALLEN
because that quantity was alleged in the indictment, and after
Apprendi v. New Jersey, 530 U.S. 466 (2000), drug quantity must be
treated as an element of the offense with which Allen was charged.
Under Apprendi, and the cases applying Apprendi’s principles to
drug prosecutions under 21 U.S.C.A. § 841, drug quantity must be
treated as an element of the offense — that is, alleged in the indict-
ment and proved to the jury beyond a reasonable doubt — to subject
a defendant to a sentence longer than the maximum sentence provided
in the statute for an indeterminate quantity of the drug in question.
See, e.g., United States v. Promise, 255 F.3d 150, 156-57 (4th Cir.
2001) (en banc) ("Apprendi dictates that in order to authorize the
imposition of a sentence exceeding the maximum allowable without
a jury finding of a specific threshold drug quantity, the specific
threshold quantity must be treated as an element of an aggravated
drug trafficking offense, i.e., charged in the indictment and proved to
the jury beyond a reasonable doubt." (footnote omitted)). In light of
this principle, we have noted that where an indictment charging a
§ 841 offense does not specify drug quantity, it is error for a court to
impose a sentence, upon the defendant’s guilty plea, in excess of the
statutory maximum permissible for an indeterminate quantity of the
drug in question. United States v. Pauley, 289 F.3d 254, 261 (4th Cir.
2002) (noting, where indictment did not allege threshold drug quan-
tity and defendant pleaded guilty without admitting any quantity, that
sentence exceeding statutory maximum for an indeterminate amount
constituted plain error).
In accordance with Apprendi’s dictates, indictments charging § 841
offenses now regularly specify the quantity of drugs the defendant is
alleged to have possessed with intent to distribute. Where a conspir-
acy to commit a § 841 offense is charged under § 846,1 the indict-
ment, as here, commonly specifies the drug quantity for which the
whole conspiracy is allegedly responsible, often without specifying
quantities for which individual members of the conspiracy are respon-
1
Section 846 provides in full: "Any person who attempts or conspires
to commit any offense defined in this subchapter shall be subject to the
same penalties as those prescribed for the offense, the commission of
which was the object of the attempt or conspiracy." 21 U.S.C.A. § 846
(West 1999).
UNITED STATES v. ALLEN 7
sible. In such a case, a defendant’s decision to plead guilty to the
indictment raises the question of what quantity may be attributed to
him.
Several circuits have held that a jury’s finding, beyond a reason-
able doubt, as to the quantity of drugs attributable to a conspiracy as
a whole establishes the applicable statutory maximum sentence for
individual defendants charged in a generally worded indictment with
involvement in the conspiracy. Thus, a district court’s drug quantity
determination for a particular member of such a conspiracy at sen-
tencing does not violate Apprendi so long as the defendant’s sentence
does not exceed the statutory maximum sentence allowable, given the
type and quantity of drugs found by the jury to be involved in the con-
spiracy as a whole. In Derman v. United States, 298 F.3d 34 (1st Cir.
2002), for example, the First Circuit held that under the principles
announced in Apprendi,
in a drug conspiracy case, the jury should determine the
existence vel non of the conspiracy as well as any facts
about the conspiracy that will increase the possible penalty
for the crime of conviction beyond the default statutory
maximum; and the judge should determine, at sentencing,
the particulars regarding the involvement of each participant
in the conspiracy.
Id. at 42-43. Once the jury has determined the type and quantity of
drugs involved in the conspiracy as a whole and has found the defen-
dant guilty of participation in the conspiracy, the court held, "the
judge lawfully may determine the drug quantity attributable to that
defendant and sentence him accordingly (so long as the sentence falls
within the statutory maximum made applicable by the jury’s
conspiracy-wide drug quantity determination)." Id. at 43; see also
United States v. Turner, 319 F.3d 716, 722-23 (5th Cir. 2003) (adopt-
ing the rule announced in Derman); United States v. Munoz, 324 F.3d
987, 991 (8th Cir. 2003) (noting, where quantity attributable to con-
spiracy was alleged in indictment and submitted to the jury, that
"[w]hen sentencing a defendant who has been found guilty by a jury
of drug conspiracy in violation of 21 U.S.C. §§ 841 and 846, the sen-
tencing judge must determine the kind and quantity of controlled sub-
stances for which [the] defendant should be held accountable").
8 UNITED STATES v. ALLEN
Our conclusion in Gilliam — that a defendant’s guilty plea to a
conspiracy indictment alleging quantity but not ascribing any speci-
fied quantity to the individual defendant does not automatically ren-
der the defendant’s guilty plea an admission of the quantity charged
in the conspiracy count — is consistent with this rule, and with the
principles announced in our decisions applying Apprendi to drug
prosecutions. A defendant may, as Allen purports to have done, chal-
lenge his individual responsibility, for sentencing purposes, for a
quantity of drugs alleged in an indictment to be attributable to a con-
spiracy as a whole, while entering a valid plea of guilty to the indict-
ment. See Gilliam, 987 F.2d at 1013-14 (noting that a defendant’s
guilty plea to a "generally worded indictment [that] did not identify
or ascribe any specific amount attributable to [the defendant] as
opposed to the conspiracy as a whole" did not establish any particular
quantity attributable to him for sentencing purposes, but raising no
question of the validity of the plea itself). As the First Circuit con-
cluded in the context of a jury trial, Apprendi requires only that the
jury find "the bare facts necessary to increase the statutory sentencing
maximum for the conspiracy as a whole," i.e., the quantity of drugs
attributable to the conspiracy as a whole. Derman, 298 F.3d at 43.
Likewise, in accepting a plea of guilty to an indictment alleging a
quantity of drugs attributable to a conspiracy as a whole, but not spec-
ifying the quantity attributable to individual members of the conspir-
acy, the district court is obliged only to ensure that the defendant
admits the quantity attributable to the conspiracy as a whole.2 Cf.
United States v. Scheetz, 293 F.3d 175 (4th Cir. 2002) (holding that
a defendant’s guilty plea to a conspiracy indictment alleging, inter
alia, "conspiracy to distribute and to possess with the intent to distrib-
ute in excess of 1,000 kilograms of marijuana" was sufficient to ele-
vate the applicable statutory maximum sentence to life imprisonment,
the sentence provided in § 841 for that quantity).3 We thus reject the
2
This is not to suggest that a defendant may not admit, at a plea hear-
ing or in a plea agreement, a quantity of drugs specifically attributable
to him for sentencing purposes.
3
The Second Circuit, addressing the case of a defendant who entered
a plea of guilty to a conspiracy charge but did not allocute to quantity,
held that the case must be remanded for either "an allocution that settles
the issue of drug quantity or . . . a finding as to that issue by a fact-finder
applying a reasonable doubt standard." United States v. Yu, 285 F.3d
UNITED STATES v. ALLEN 9
Government’s contention that Allen’s description of the plea colloquy
is inconsistent with his having entered a valid guilty plea to Count I
of the indictment.
Turning now to Allen’s challenge to his sentence, we conclude that
even if Allen’s description of his reservation at the plea colloquy is
correct, the district court did not err in its determination of the quan-
tity attributable to Allen for sentencing purposes. At the plea collo-
quy, the district court asked Allen, "Do you understand that, Mr.
Allen? You are disputing the amount of drugs that are involved, do
you think?" (J.A. at 90.) Allen responded, "Yes, sir, Your Honor," to
which the district court replied, "All right. And that’s something we’ll
work out at the time of sentencing . . . ." (J.A. at 90.) As noted above,
we review a district court’s drug quantity determination for purposes
of sentencing for clear error. United States v. Randall, 171 F.3d 195,
210 (4th Cir. 1999). Thus, even if we accept Allen’s contention that
he refused to admit personal responsibility for 50 grams of cocaine
base in his plea colloquy, we would have to find that the district court
clearly erred in attributing more than 50 grams of cocaine base to him
for sentencing purposes. This we cannot do.
In addition to resting its quantity determination on Allen’s conces-
sion at his plea colloquy, the district court stated that "there is nothing
that I have heard that would cause me to indicate that Ms. Gentry’s
testimony was incredible or unbelievable or false or perjured and it
supports" Allen’s plea. (J.A. at 147.) Gentry’s grand jury testimony
was the primary basis for the PSR’s attribution to Allen of more than
50 grams of cocaine base. Allen asserts that the district court "did not
make a finding that Gentry’s testimony was accurate or that her testi-
mony independently proved" that Allen’s involvement in the conspir-
192, 198 (2d Cir. 2002). Yu is not inconsistent with the rule in Derman
and Turner, however, because the defendant in Yu refused to allocute to
any quantity, either as to himself individually or as to the conspiracy as
a whole. Accordingly, the defendant’s guilty plea in Yu was entered
without the understanding that the Government would have to prove the
quantity of drugs for which the conspiracy as a whole was responsible
to the jury beyond a reasonable doubt, a situation which the Second Cir-
cuit held required it to remand.
10 UNITED STATES v. ALLEN
acy was more than 50 grams. (Appellant’s Br. at 19-20.) Such a
finding, however, is implicit in the district court’s reliance on Gen-
try’s testimony in determining the quantity of cocaine base attribut-
able to him.
The district court also relied on Agent Manchas’s testimony at the
plea colloquy, which the court found credible. Agent Manchas
described the statements of several witnesses who saw Allen dealing
cocaine base over a period of months in West Virginia. Allen asserts
that the district court erred in relying on testimony by Manchas and
Gentry because neither testified at the sentencing hearing. We have
noted, however that a sentencing court may consider any relevant
information, including hearsay evidence, provided that the informa-
tion has "sufficient indicia of reliability to support its probable accu-
racy." United States v. Uwaeme, 975 F.2d 1016, 1021 (4th Cir. 1992)
(quoting U.S. Sentencing Guidelines Manual § 6A1.3(a)).
Based on the district court’s conclusion that Gentry’s and Man-
chas’s testimony was credible and supported the quantity determina-
tion, we cannot conclude that it clearly erred in relying on that
testimony in attributing more than 50 grams of cocaine base to Allen
for sentencing purposes.
III.
For the reasons stated above, the judgment of the district court is
AFFIRMED.