United States v. Hatcher

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 03-4591

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

REGINALD HATCHER,

Defendant - Appellant.

No. 03-4592

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JOWANNA LAQUETTA BROWN,

Defendant - Appellant.

No. 03-4593

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus
CORNELIA SAULTER,

Defendant - Appellant.

No. 03-4602

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JOHN EDWARD KIRK,

Defendant - Appellant.

No. 03-4804

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

GENE ANTHONY BROWN, SR.,

Defendant - Appellant.

Appeals from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (CR-02-22-FO)

2
Argued: March 7, 2005 Decided: May 27, 2005

Before WILKINS, Chief Judge, and WILLIAMS and TRAXLER, Circuit
Judges.

Affirmed in part, vacated in part, and remanded with instructions
by unpublished opinion. Chief Judge Wilkins wrote the opinion, in
which Judge Williams and Judge Traxler joined.

ARGUED: Lyle Joseph Yurko, Charlotte, North Carolina; Sofie
Wonderly Hosford, HOSFORD & HOSFORD, Wilmington, North Carolina;
William Lee Davis, III, Lumberton, North Carolina; Terence Lee
Taylor, Greenville, North Carolina; Edwin Love West, III,
Wilmington, North Carolina, for Appellants. Christine Witcover
Dean, Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Frank
D. Whitney, United States Attorney, Anne M. Hayes, Assistant United
States Attorney, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

3
WILKINS, Chief Judge:

Gene Brown, Sr., Jowanna Brown, Reginald Hatcher, John Kirk,

and Cornelia Saulter (collectively, “Appellants”) appeal their

convictions and sentences for multiple counts of money laundering

and, in the case of Gene Brown, for two drug offenses. We find no

reversible error in and therefore affirm Appellants’ convictions.

However, in light of United States v. Booker, 125 S. Ct. 738

(2005), we find plain error in sentencing, exercise our discretion

to notice the error, vacate the sentences, and remand to the

district court for resentencing.1

I.

This case arises out of Appellants’ participation in a money

laundering scheme led by two drug dealers, Antwand Brown (Antwand)

and Dion Saulter (Dion). Antwand and Dion acquired large amounts

of money by dealing drugs, and they enlisted Appellants’ help in

laundering the money. In various capacities, Appellants helped

Antwand and Dion purchase expensive vehicles with the money, trade

in those vehicles for less expensive models, and thereby obtain a

laundered profit. A federal grand jury returned a multiple-count

indictment naming Appellants as participants in the scheme. Tried

together before a jury, Appellants were convicted on multiple

1
We do not vacate Gene Brown’s sentence because he did not
challenge it on appeal.

4
counts of money laundering, see 18 U.S.C.A. §§ 1956, 1957 (West

2000 & Supp. 2005), and Gene Brown was convicted additionally of

two drug offenses, see 21 U.S.C.A. §§ 846, 856 (West 1999 & Supp.

2005). Gene Brown was sentenced to 166 months’ imprisonment,

Jowanna Brown was sentenced to 78 months’ imprisonment, Saulter was

sentenced to 51 months’ imprisonment, and Hatcher and Kirk were

each sentenced to 41 months’ imprisonment. This consolidated

appeal followed.

II.

We first address the issues raised by Appellants regarding

their convictions. They argue that the district court abused its

discretion by dismissing a juror after trial began and by

instructing the jury on willful blindness. They also maintain that

the evidence admitted against them was insufficient to support

their convictions. Jowanna Brown, Kirk, and Saulter contend

additionally that the district court abused its discretion by not

severing their trials from the trials of Gene Brown and Hatcher.

We address these arguments in turn.

A. Dismissal of a Juror

On the second day of trial, a juror (Juror A) told the

district court that two or three years before the trial he had

engaged in business with one of Antwand’s companies. The district

court immediately informed the parties that it was considering

dismissing Juror A but that it would wait until the end of trial to

5
make the decision. The court also told the parties that upon the

close of the evidence it would grant a motion to dismiss Juror A if

any party filed one. None of the parties objected to this

procedure at the time.

During the course of the trial, evidence was introduced

relating to the company with which Juror A had engaged in business.

At the close of the evidence, the Government asked the district

court to dismiss Juror A. Over Appellants’ objection, the district

court dismissed Juror A and replaced him with an alternate.

Appellants now argue that the district court abused its discretion

by not conducting a hearing or making factual findings before it

dismissed Juror A.

“A defendant has a reasonable expectation that, barring

unforeseen circumstances, he will be tried by the jury selected.”

United States v. Nelson, 102 F.3d 1344, 1349 (4th Cir. 1996).

However, under Rule 24(c)(1) of the Federal Rules of Criminal

Procedure, the district court must replace jurors who become

disqualified or unable to perform their duties before deliberation

commences. See id. at 1349. The district court determines, in its

discretion, whether adequate cause exists to dismiss jurors. See

id. We will find an abuse of discretion only if the dismissal of

the juror rested “on an irrelevant legal basis or lacked factual

support.” Id. And, even if the district court abuses its

6
discretion in dismissing a juror, “the objecting party must

nevertheless establish prejudice” resulting from that abuse. Id.

Here, the district court did not abuse its discretion in

finding adequate cause to dismiss Juror A. Juror A told the court

that he had engaged in business with one of the companies owned by

a central figure in the trial, and he indicated that he did not

want to be in a position that might affect his objectivity. The

district court noted these facts on the record and based its

ultimate decision to dismiss Juror A on these facts. To exercise

its discretion properly, the court did not need to conduct a

hearing on whether cause was present. See United States v. Virgen-

Moreno, 265 F.3d 276, 288 (5th Cir. 2001) (“The district court was

not required to conduct an evidentiary hearing [regarding the

dismissal of a juror], and the scope of the court’s investigation

is within its sound discretion.”).

In any event, Appellants cannot demonstrate prejudice

resulting from the dismissal of Juror A. Appellants assert that

they “were prejudiced by the removal of [Juror A]” because he “was

receptive and attentive to the defendants’ contentions and

arguments.” Consol. Br. of Appellants at 24. But, Appellants

proffer no basis for this assertion; it is mere speculation, which

is not sufficient to demonstrate prejudice, see United States v.

Krout, 56 F.3d 643, 647 (5th Cir. 1995) (refusing to find prejudice

when the defendant “simply state[d] a ‘belief’ that the excused

7
juror was favorable to his case”). Therefore, the dismissal of

Juror A does not warrant reversal of Appellants’ convictions.2

B. Evidence Sufficiency and Willful Blindness Instruction

Appellants also challenge the sufficiency of the evidence

supporting their convictions and the propriety of a jury

instruction given by the district court. In considering a

sufficiency challenge, our role is limited to considering 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). When “the evidence supports different,

reasonable interpretations, the jury decides which interpretation

to believe.” United States v. Beidler, 110 F.3d 1064, 1067 (4th

Cir. 1997) (internal quotation marks omitted). Therefore, we will

only overturn a verdict on grounds of evidence sufficiency “where

the prosecution’s failure is clear.” Burks v. United States, 437

U.S. 1, 17 (1978).

2
On the fifth day of trial, another juror (Juror B) told the
district court that he had engaged in business with one of the
witnesses at trial. The district court did not immediately dismiss
Juror B, but on the following day the court dismissed him for an
unrelated personal reason. Appellants argue that the district
court treated Juror B differently from Juror A because the court
immediately told the parties that it would dismiss Juror A upon
motion by any party at the close of the evidence, but it did not
say the same about Juror B. We disagree. After Juror B told the
district court of his association with the witness, the court gave
the parties an opportunity to move for his dismissal. Before any
party took action, Juror B was dismissed for a reason unrelated to
his association with the witness, and neither party challenges that
basis for his dismissal. Thus, there is no evidence that the
district court treated the two jurors differently.

8
 To sustain a conviction for money laundering under § 1956, the

Government must prove

(1) that the defendant conduct[ed] a financial
transaction with at least a de minimis effect on
interstate commerce; (2) that the transaction involved
the proceeds of a specified unlawful activity; (3) that
the defendant knew that those proceeds were derived from
that specific unlawful activity; and (4) that the
defendant engaged in the transaction intending to promote
that unlawful activity.

United States v. Bollin, 264 F.3d 391, 408 (4th Cir. 2001)

(internal quotation marks omitted). Here, with respect to the

third element--termed the “guilty knowledge” requirement, e.g.,

United States v. Navarro, 145 F.3d 580, 587 (3d Cir. 1998)

(internal quotation marks omitted); United States v. Holmes, 44

F.3d 1150, 1155 (2d Cir. 1995)--the district court instructed the

jury that it could infer guilty knowledge from a defendant’s

actions if it found “beyond a reasonable doubt that he or she

strongly suspected that the described property represented the

proceeds of unlawful activity, and deliberately closed his or her

eyes to the existence of that fact in an attempt to avoid criminal

liability.” J.A. 2299. This is known as a “willful blindness”

instruction, which “allows the jury to impute the element of

knowledge to the defendant if the evidence indicates [he] purposely

closed his eyes to avoid what was taking place around him.” United

States v. Withers, 100 F.3d 1142, 1145 (4th Cir. 1996) (internal

quotation marks omitted).

9
 Citing cases from other circuits, Appellants argue that a

willful blindness instruction was inappropriate here because “the

facts point[ed] to actual knowledge rather than deliberate

ignorance,” United States v. Mapelli, 971 F.2d 284, 286 (9th Cir.

1992), or because the evidence did not indicate that the defendants

deliberately remained ignorant for the specific purpose of

establishing a defense to future prosecution, see United States v.

Baron, 94 F.3d 1312, 1318 n.3 (9th Cir. 1996). However, settled

circuit precedent instructs that “a willful blindness instruction

is appropriate” even “when there is evidence of both actual

knowledge and deliberate ignorance.” United States v. Schnabel,

939 F.2d 197, 204 (4th Cir. 1991); accord United States v. Ruhe,

191 F.3d 376, 384 (4th Cir. 1999) (“If the evidence supports both

actual knowledge on the part of the defendant and deliberate

ignorance, a willful blindness instruction is proper.”).

Specifically, we have permitted a willful blindness instruction in

a money laundering case such as this one. See United States v.

Campbell, 977 F.2d 854, 857 (4th Cir. 1992). Moreover, “this

circuit has never adopted the Ninth Circuit’s additional

requirement that the government prove that the defendant’s

ignorance was for the purpose of providing a defense in case of

prosecution.” Ruhe, 191 F.3d at 385.

To establish the element of guilty knowledge, therefore, the

Government had to introduce evidence from which a reasonable juror

10
could conclude that Appellants at least deliberately ignored the

illicit source of the funds used in the transactions. We conclude

that the evidence introduced against each of the Appellants was

sufficient to sustain their convictions.

1. Jowanna Brown

Jowanna Brown, Antwand’s sister, argues that the Government

failed to prove guilty knowledge because the evidence showed that

Antwand and Dion misled her into believing that the funds used in

the transactions were actually the proceeds of legitimate business

ventures, including a rap music show, a nightclub, a recording

studio, an automobile business, a pay phone business, and a

trucking company. “At best,” Jowanna Brown argues, she “was guilty

of mistaken reliance on the trustworthiness of her family.”

Consol. Br. of Appellants at 32.

However, the Government introduced evidence showing that

Jowanna Brown had helped Antwand conceal his drug money in the

past, that she and Dion shared an apartment in the same complex

where Antwand lived while the scheme was ongoing, and that during

that time she paid expenses that were grossly disproportionate to

her income. The Government also introduced evidence that she was

present when Dion paid for a Lexus using a six-inch-thick “wad of

cash.” J.A. 1502. From this evidence, a reasonable juror could

conclude that Jowanna Brown knew of the illicit source of the funds

used in the transactions, or at least that she deliberately ignored

11
their illicit source. We therefore reject her argument that the

Government failed to prove guilty knowledge.

2. John Kirk

Like Jowanna Brown, Kirk, Antwand’s stepfather, argues that

the Government did not prove guilty knowledge--i.e., “that [he]

knew the vehicles that he agreed to title in his name were the

proceeds of illegal drug sales.” Consol. Br. of Appellants at 30.

“Given [the] impressive ‘front’ posed by Antwand,” Kirk argues that

he need not have suspected that Antwand was dealing drugs. Id. at

31.

However, the Government introduced ample evidence to permit

the jury to disagree with Kirk’s contention. First, and most

basically, the Government introduced evidence that Kirk permitted

vehicles purchased by Antwand to be titled in Kirk’s name. A jury

could infer that, if Antwand had used money from legitimate sources

to purchase the vehicles, there would have been no reason for him

to title the vehicles in Kirk’s name. Additionally, the evidence

showed that Antwand asked Kirk to help him lease or obtain

financing for the vehicles. If Antwand indeed made large sums of

money from legitimate sources, as he had apparently represented to

Kirk, he would not have needed help from Kirk to finance the

purchases. Finally, the evidence showed that Kirk personally

received checks for the profit from the trade-ins, and rather than

endorsing the checks to Antwand, Kirk personally cashed them and

12
delivered the cash to Antwand. From this evidence, the jury could

reasonably conclude that Kirk knew of the illicit foundation of the

scheme, or at least deliberately ignored it.

Additionally, Kirk argues that the Government failed to prove

that he intended to conceal the unlawful activity that funded the

transactions. See United States v. Villarini, 238 F.3d 530, 533

(4th Cir. 2001) (“To establish the fourth element [under § 1956],

the Government must prove a specific intent to conceal.”). He

notes that his participation in the scheme included signing and

publicly filing two powers of attorney to assist Antwand in buying

vehicles in Kirk’s name, and he suggests that “[a] man of [his]

education would know that power of attorney documents ... are open

for public viewing.” Consol. Br. of Appellants at 31. Kirk argues

that his participation in the scheme was very much public, which

belies an intent to conceal.

However, the Government points out that Kirk’s public filing

of powers of attorney helped to conceal the fact that it was

actually Antwand, not Kirk, who was supplying the money for the

transactions. Both powers of attorney indicated that the documents

were intended to empower Antwand to transfer Kirk’s vehicles,

making it appear as if Kirk, not Antwand, was the original source

of the vehicles. From this evidence the jury could infer that Kirk

intended to conceal Antwand’s unlawful activity that funded

purchase of the vehicles.

13
 3. Cornelia Saulter

Saulter, Dion’s mother, first argues that the Government

failed to prove guilty knowledge on her part. She notes that

“considerable evidence was presented tending to show that Dion ...

gave the appearance that he was involved with various money

producing, non drug related activities,” and she states that “[t]he

law does not require that a mother believe the worst about her

son.” Id. at 34. However, the Government introduced ample

evidence to permit the jury to find guilty knowledge on the part of

Saulter. There was testimony that she signed powers of attorney to

enable Dion to purchase vehicles in her name and that she even

obtained a blank, notarized power of attorney to afford Dion more

flexibility in carrying out the scheme. And, the evidence showed

that she obtained insurance for the vehicles as they were placed in

her name, once referring in an insurance document to a vehicle Dion

had purchased as “my car,” J.A. 1605, thus concealing the true

ownership of the vehicle. From this evidence, the jury could

reasonably find that Saulter possessed guilty knowledge.

Saulter also argues that the Government failed to prove intent

to conceal. See Villarini, 238 F.3d at 533. She, like Kirk,

points to the fact that she signed and publicly filed powers of

attorney, and she adds that she openly obtained insurance for the

vehicles in her name. These actions, she maintains, “are hardly

the actions of someone concealing anything.” Consol. Br. of

14
Appellants at 35. This argument misses the point. Saulter’s

public filing of the powers of attorney and insurance documents in

her name helped Dion conceal the proceeds of his drug dealing. We

believe, therefore, that the Government sufficiently proved intent

to conceal on Saulter’s part.

4. Reginald Hatcher

Like the Appellants before him, Hatcher, a friend of Antwand

and Dion, argues that the evidence was insufficient to prove that

he knew of the illicit nature of the scheme. However, the

Government introduced evidence that he permitted Antwand and others

to manufacture cocaine base at his house in exchange for small

amounts of the finished product. Further, the evidence showed that

Hatcher believed Antwand was a drug dealer because he had observed

Antwand’s money and new vehicles, and when Hatcher was having

financial troubles, Antwand would pay his bills and offer

additional cash in exchange for Hatcher’s agreement to purchase

vehicles using Antwand’s drug money. The evidence indicated that

on one occasion, Hatcher used $47,000 in cash supplied by Antwand

to purchase a Cadillac Escalade, the title for which Antwand later

placed in his aunt’s name. From this evidence the jury could

reasonably conclude that Hatcher was at least aware that the money

used in the Escalade transaction was the product of illegal drug

sales.

15
 Hatcher, who was convicted of engaging in a transaction in

criminally derived property valued at more than $10,000, see 18

U.S.C.A. § 1957(a),3 also argues that an impermissible variance

occurred between the violation alleged in the indictment and the

evidence introduced against him at trial. Specifically, Hatcher

points to Count 17 of the indictment, which alleged that Hatcher

and a woman named Charlene Brown Hall violated § 1957(a) by

purchasing the Escalade with Antwand’s cash. At trial, however,

the evidence indicated that Hall did not participate in the

transaction, and the charges against her were dismissed. Hatcher

argues that this variance warrants reversal of his conviction for

violating § 1957(a). We disagree.

“When a defendant is convicted of charges not included in the

indictment, an amendment has occurred which is per se reversible

error.” United States v. Fletcher, 74 F.3d 49, 53 (4th Cir. 1996).

In contrast, “[w]hen the evidence at trial differs from what is

alleged in the indictment, then a variance has occurred,” which

“violates a defendant’s rights and requires reversal only if it

prejudices him.” Id. Prejudice results “only when the variance

3
Section 1957(a) is designed to “make the drug dealers’ money
worthless” by criminalizing transactions in which the participants
knowingly give or accept money derived from unlawful activity.
H.R. Rep. No. 99-855, at 13 (1986) (internal quotation marks
omitted). Though similar to § 1956, § 1957 is broader because it
criminalizes transactions without requiring proof of intent to
conceal the underlying unlawful activity. See United States v.
Allen, 129 F.3d 1159, 1164-65 (10th Cir. 1997) (discussing the
differences between § 1956 and § 1957).

16
either surprises the defendant at trial and hinders the preparation

of his defense, or exposes him to the danger of a second

prosecution for the same offense.” United States v. Redd, 161 F.3d

793, 795 (4th Cir. 1998) (alterations & internal quotation marks

omitted). “As long as the proof at trial does not add anything new

or constitute a broadening of the charges, then minor discrepancies

between the Government’s charges and the facts proved at trial

generally are permissible.” Fletcher, 74 F.3d at 53. Therefore,

if “the indictment provides the defendant with adequate notice of

the charges against him and is sufficient to allow the defendant to

plead it as a bar to subsequent prosecutions, a variance in proof

at trial will not prejudice the defendant.” Redd, 161 F.3d at 795-

96 (footnote omitted).

Here, there is no question that the indictment put Hatcher on

notice of the § 1957(a) charge, and the lack of evidence that Hall

was also present when the offense occurred did not affect an

essential element of the § 1957(a) offense. See id. at 796

(finding no prejudice “when the alleged variance [did] not affect

an essential element of the offense”). Whether Hall was present or

not, the evidence showed that Hatcher “knowingly engage[d] ... in

a monetary transaction in criminally derived property of a value

greater than $10,000.” 18 U.S.C.A. § 1957(a). The minor variance

between the indictment and the evidence does not warrant reversal

of his conviction.

17
 5. Gene Brown, Sr.

Gene Brown, Antwand’s father, was convicted of conspiracy to

distribute and possess with intent to distribute controlled

substances, see 21 U.S.C.A. § 846; maintaining a place for the

distribution of controlled substances, see 21 U.S.C.A. § 856(a)(1);

and conspiracy to launder money, see 18 U.S.C.A. § 1956(h). We

address the sufficiency of the evidence supporting the drug and

money laundering convictions separately.

a. Drug Convictions

To sustain a conviction for conspiracy to distribute and

possess with intent to distribute, the Government must prove that

(1) an agreement to distribute and possess with intent to

distribute existed between two or more persons, (2) the defendant

knew of the conspiracy, and (3) the defendant knowingly and

voluntarily became a part of it. See United States v. Burgos, 94

F.3d 849, 857 (4th Cir. 1996) (en banc). Here, it is undisputed

that an agreement to distribute and to possess with intent to

distribute existed between Antwand and Dion. Gene Brown argues

only that the evidence was insufficient to prove that he was

“someone who [was] deeply involved in a conspiracy to sell drugs.”

Consol. Br. of Appellants at 63. But, Gene Brown misapprehends the

quantum of evidence necessary to support a conviction under § 846:

“[O]nce it has been shown that a conspiracy exists, the evidence

18
need only establish a slight connection between the defendant and

the conspiracy to support conviction.” Burgos, 94 F.3d at 861

(internal quotation marks omitted). Therefore, the Government

needed only to establish a slight connection between Gene Brown

and the scheme of Antwand and Dion. And, to convict him under

§ 856, the Government had to prove that he “(1) knowingly, (2)

operated or maintained a place, (3) for the purpose of

manufacturing, distributing, or using any controlled substance.”

United States v. Pineiro, 389 F.3d 1359, 1367 (11th Cir. 2004)

(internal quotation marks omitted); accord United States v.

Soto-Silva, 129 F.3d 340, 345 (5th Cir. 1997).

Here, the Government introduced evidence that Antwand and Dion

stored drugs in vehicles that they parked on Gene Brown’s property

and that they sold drugs in close proximity to him. Testimony

showed that Gene Brown would drive people from location to location

to purchase cocaine base. The evidence further showed that inside

Gene Brown’s house, Antwand kept a safe from which he would

retrieve $20,000 to $40,000 at a time to pay his drug supplier.

Gene Brown was often at home when these payments were being made.

In fact, when Gene Brown’s home was later searched, agents found

cocaine and cocaine base inside the safe. There was also testimony

that Gene Brown had remarked that his sons needed to stop selling

drugs and invest their money in something legal, and there was

evidence that one of his sons stored drugs in his garage. From

19
this evidence the jury could reasonably find the necessary elements

to sustain Gene Brown’s convictions under § 846 and § 856.

b. Money Laundering Conviction

With respect to his conviction for conspiracy to launder

money, Gene Brown argues that the Government failed to prove

guilty knowledge on his part, offering that “it is not unusual for

a parent to assist their children when buying automobiles and

obtaining insurance.” Consol. Br. of Appellants at 36. He

contends that Antwand and Dion misrepresented the source of the

money for the automobiles, and “[t]he family members had no reason

to believe otherwise.” Id. However, the Government introduced

evidence that he had artfully structured multiple $9,000 deposits

into, and withdrawals from, his and others’ accounts to help

Antwand pay for the vehicles without being detected. See

Villarini, 238 F.3d at 533 (holding that series of strategically

small deposits “gives rise to a reasonable inference that the

transactions were designed to avoid suspicion or to give the

appearance ... [of] a legitimate cash income stream”). The

evidence also showed that he had executed powers of attorney to

enable Antwand to purchase several vehicles in his name. Further,

the Government introduced evidence of large discrepancies between

the income reported on Gene Brown’s tax returns and the actual

deposits into his bank accounts. From this evidence and the

evidence introduced in support of his drug convictions, the jury

20
could reasonably find sufficient evidence to convict him of

conspiracy to launder money.

C. Motions to Sever

Jowanna Brown, Kirk, and Saulter argue that the district court

erred by failing to sever their trials from those of their

codefendants. “There is a preference in the federal system for

joint trials of defendants who are indicted together.” Zafiro v.

United States, 506 U.S. 534, 537 (1993). Under Rule 14 of the

Federal Rules of Criminal Procedure, “a district court should grant

a severance ... only if there is a serious risk that a joint trial

would compromise a specific trial right of one of the defendants,

or prevent the jury from making a reliable judgment about guilt or

innocence.” Id. at 539. The potential “spillover effect” of

evidence admitted against codefendants does not require severance

per se. United States v. Najjar, 300 F.3d 466, 473 (4th Cir.

2002). Rather, the district court is vested with discretion to

determine whether cause exists for severance. See id. To

demonstrate that the district court abused its discretion, the

defendant “must establish that actual prejudice would result from

a joint trial, and not merely that a separate trial would offer a

better chance of acquittal.” United States v. Reavis, 48 F.3d 763,

767 (4th Cir. 1995) (citation, alteration, & internal quotation

marks omitted).

21
 Here, in addition to determining that a joint trial would not

pose serious risks of prejudice to the defendants, the district

court gave a limiting instruction to the jury at the outset of the

trial: “Each [defendant] is entitled to your separate

consideration, and you are not to think of them as a group....

[Y]ou must make a separate determination as to whether or not the

government proved each defendant’s guilt beyond a reasonable

doubt.” J.A. 412-13. Such an instruction can cure even actual

prejudice. Cf. Najjar, 300 F.3d at 475 (“To the extent there was

any actual prejudice suffered by [the defendant] by any conflict in

the defenses, we think that the district judge cured such conflict

by proper limiting instructions.”). Nevertheless, Jowanna Brown,

Kirk, and Saulter argue that the decision of the district court to

try Appellants jointly warrants reversal of their convictions. We

address each of their arguments separately.

1. John Kirk

Kirk did not raise this issue in the district court, so we

review the district court decision with respect to him for plain

error. See Fed. R. Crim. P. 52(b); United States v. Olano, 507

U.S. 725, 731-32 (1993). To demonstrate plain error, Kirk must

show “an error that is plain and that affects substantial rights.”

Olano, 507 U.S. at 732 (alteration & internal quotation marks

omitted).

22
 Kirk argues that the district court should have severed his

trial from that of his codefendants because “[h]e was the least

culpable of all of the co-defendants,” and, “[a]s a result, the

jury might have convicted [him] based upon evidence incriminating

his co-defendants.” Consol. Br. of Appellants at 42 (emphasis

added). However, such bare speculation is not sufficient to show

that the district court abused its discretion. See United States

v. Becker, 585 F.2d 703, 707 (4th Cir. 1978) (“Speculative

allegations as to possible prejudice do not meet the burden of

showing an abuse of discretion in denying a motion for

severance.”). We therefore reject Kirk’s argument.

2. Jowanna Brown

Jowanna Brown did raise this issue in the district court. Our

review is therefore for abuse of discretion. She advances a

similar argument regarding prejudice as the argument advanced by

Kirk: that the district court should have severed her trial

because “the jury might have convicted Ms. Brown based upon

evidence incriminating her co-defendants.” Consol. Br. of

Appellants at 43 (emphasis added). As noted above, such

speculation is not sufficient to demonstrate an abuse of

discretion. We therefore reject her argument.

3. Cornelia Saulter

Saulter also raised this issue in the district court, so our

review is for abuse of discretion. She argues that “the taint from

23
evidence against Gene Brown, Sr. could not help but prejudice

[her],” id. at 44 (emphasis added), adding that “[she] was

prejudiced because the evidence regarding her ‘knowledge’ of drug

activity was weak,” id. As noted above, mere allegations of

spillover effect are not themselves enough to demonstrate an abuse

of discretion. See Najjar, 300 F.3d at 473. We therefore reject

Saulter’s argument.

III.

We now turn to the issues raised by Appellants regarding their

sentences. Appellants, with the exception of Gene Brown, argue

that their sentences violated their Sixth Amendment right to a jury

trial. See U.S. Const. amend. VI. In addition, Saulter argues

(1) that the district court miscalculated her prescribed guideline

sentence by improperly holding her accountable for the value of

certain vehicles, and (2) that the decision of the district court

not to depart downward when calculating her guideline sentence is

reviewable and should be reversed. As detailed below, we conclude

that the district court plainly erred when it imposed sentences

that exceeded the maximum authorized by the jury verdict alone, and

we vacate those sentences and remand for resentencing. We also

conclude that the district court lacked an adequate factual basis,

at least on the record before us, to attribute the amount that it

did to Saulter’s participation in the scheme. We reject, however,

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Saulter’s argument that the district court decision not to depart

downward is reviewable.

A. Sixth Amendment Challenges

Appellants argue that under United States v. Booker,

125 S. Ct. 738 (2005), the district court erred by imposing

sentences that exceeded the maximum authorized by the jury verdict

alone. Because Appellants did not raise this issue in the district

court, our review is for plain error. See Fed. R. Crim. P. 52(b);

Olano, 507 U.S. at 731-32. To establish plain error, Appellants

must show that an error occurred, that the error was plain, and

that the error affected their substantial rights. See Olano, 507

U.S. at 732. If they can make such a showing, correction of the

error remains within our discretion, which we “should not exercise

... unless the error seriously affects the fairness, integrity or

public reputation of judicial proceedings.” Id. (alteration &

internal quotation marks omitted).

As we recently held in United States v. Hughes, 401 F.3d 540,

547-55 (4th Cir. 2005), a district court commits plain error that

affects a defendant’s substantial rights when, operating under a

pre-Booker mandatory guidelines regime, it imposes a sentence that

exceeds the maximum guideline sentence authorized by the jury

verdict alone. Here, the jury found Appellants guilty of money

laundering, to which the guidelines assign a base Offense Level

of 8, see United States Sentencing Guidelines Manual § 2S1.1(a)(2)

25
(2002). The guidelines also prescribe a two-level enhancement

because Appellants were convicted of violating 18 U.S.C.A. § 1956.

See U.S.S.G. § 2S1.1(b)(2)(B). Accordingly, the jury verdicts

authorized an Offense Level of 10. As each Appellant was assigned

a Criminal History Category of I, the maximum sentence authorized

by the jury verdicts was 12 months’ imprisonment. However, as

noted above, Jowanna Brown was sentenced to 78 months’

imprisonment, Saulter was sentenced to 51 months’ imprisonment, and

Hatcher and Kirk were sentenced to 41 months’ imprisonment. The

facts that gave rise to the enhancements resulting in these

sentences were found by the district court, not by the jury.

Therefore, under Hughes, the district court committed plain error

and affected Appellants’ substantial rights when it imposed these

sentences. See Hughes, 401 F.3d at 547-55.4

We therefore have discretion to notice the prejudicial error

committed by the district court. “Our discretion is appropriately

exercised only when failure to do so would result in a miscarriage

of justice, such as when the defendant is actually innocent or the

error seriously affects the fairness, integrity or public

reputation of judicial proceedings.” United States v. Hastings,

134 F.3d 235, 244 (4th Cir. 1998) (alteration & internal quotation

marks omitted). We conclude, as we did in Hughes, that exercise of

4
We of course offer no criticism of the district judge, who
followed the law and procedure in effect at the time of sentencing.

26
our discretion is warranted here. As a result of a plain and

prejudicial Sixth Amendment error, Appellants were sentenced to

terms of imprisonment several times as long as the maximum sentence

authorized by the jury verdict. See Hughes, 401 F.3d at 555-56.

Moreover, as in Hughes, “[t]he record does not provide any

indication of what sentence the district court would have imposed

had it exercised its discretion under § 3553(a), treating the

guidelines as merely advisory.” Id. at 556. Under these

circumstances, we believe that failure to notice this error would

seriously affect the fairness, integrity, or public reputation of

judicial proceedings. See United States v. Ford, 88 F.3d 1350,

1356 (4th Cir. 1996) (noticing a plain, prejudicial sentencing

error that would have caused the defendant to “serve a term of

imprisonment three years longer than required by the sentencing

guidelines”). We therefore exercise our discretion to notice the

error and remand the cases of Jowanna Brown, Hatcher, Kirk, and

Saulter for resentencing consistent with the instructions set forth

in Hughes. See Hughes, 401 F.3d at 546.

B. Factual Foundation for Saulter Sentence

Saulter challenges the calculation of the amount of loss

attributed to her participation in the money laundering scheme.

Because the district court will have to consider her prescribed

guideline sentence on remand, see id. (“[A] district court shall

first calculate (after making the appropriate findings of fact) the

27
range prescribed by the guidelines.”), we take this opportunity to

address Saulter’s challenge to the calculation of her sentence.

The district court calculated Saulter’s guideline sentence

based on a final offense level of 24 and imposed a sentence of 51

months. The final offense level of 24 was based in part on an

enhancement of 8 levels to account for an amount laundered of

$106,471.94, see U.S.S.G. § 2B1.1(b)(1)(E). This was the amount

recommended in the presentence report prepared by the probation

office and was calculated according to Saulter’s association with

five automobiles: a Lexus, a Land Rover, a 1997 Mercedes, a 2000

Mercedes, and a Cadillac. Saulter argues that there was

insufficient evidence to hold her accountable for the Lexus, the

2000 Mercedes, and the Land Rover. Therefore, she argues, the

amount of laundered funds for which she should be held accountable

is $53,390 (corresponding to an enhancement of 6 levels, see id.

§ 2B1.1(b)(1)(D), for a final offense level of 22 (41-51 months)).

“Evidence underlying a district court’s sentence is reviewed

by viewing the evidence, and inferences drawn therefrom, in the

light most favorable to the district court’s determination.”

United States v. Bolden, 325 F.3d 471, 480 n.5 (4th Cir. 2003)

(internal quotation marks omitted). We believe that there is

sufficient evidence in the record to connect Saulter to the

vehicles in question. As to the Lexus and Land Rover, Antwand and

Dion obtained a $10,000 credit from the trade-in of the Lexus and

28
used that money in part to purchase the Land Rover in Saulter’s

name. Saulter then traded the Land Rover and the 1997 Mercedes for

the 2000 Mercedes. Moreover, Saulter added the 2000 Mercedes to

her insurance policy. Finally, Saulter sent a proof-of-loss letter

to her insurance carrier referring to the 2000 Mercedes as “my

car.” J.A. 1605. This evidence is sufficient to tie Saulter to

each of these vehicles.

However, based on our examination of the value of each of

these automobiles as listed in the presentence report (and relied

upon by the district court), we are unable to determine how the

district court reached the final figure of $106,471.94.

Specifically, the presentence report indicates that the 2000

Mercedes, purchased for $86,482.94, was paid for in the following

way: (1) trade-in of the 1997 Mercedes and the Land Rover,

together worth $85,000; and (2) cash payment of $1,482.94. Yet the

presentence report calculated the amount of laundered money

attributable to this transaction to be $33,182.00. We can find no

basis in the record for this figure. It appears that, at most, the

amount of money laundered through this transaction was $1,482.94.

Indeed, based upon all the figures set forth in the presentence

29
report, we can conceive of no factual basis for the $33,182.00

figure attributed to this transaction.5 In light of this apparent

ambiguity, the district court is instructed on remand to set forth

with particularity the factual basis for its guideline

calculations, paying especially close attention to the amount of

money attributable to each transaction.

C. Decision Not to Depart

Saulter also argues that we should review the decision of the

district court not to depart downward when calculating her

guideline sentence. However, the record indicates that the

district court was aware of its ability to depart downward, but it

chose not to depart based upon its view of the merits. Its

decision not to depart is therefore unreviewable by this court.

See United States v. Edwards, 188 F.3d 230, 238 (4th Cir. 1999)

(“The only circumstance in which review of a district court’s

refusal to depart is available is when the district court

mistakenly believed that it lacked the authority to depart.”

(alterations & internal quotation marks omitted)).

5
At oral argument, counsel for the Government suggested that
depreciation of the 1997 Mercedes and Land Rover had something to
do with the figure. This may be true, but nothing in the record so
indicates.

30
 IV.

For the reasons stated above, we affirm Appellants’

convictions. However, we vacate the sentences of Jowanna Brown,

Hatcher, Kirk, and Saulter and remand to the district court for

resentencing.

AFFIRMED IN PART, VACATED IN PART,
AND REMANDED WITH INSTRUCTIONS

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