UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4909
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KEVIN IVAN ANTHONY, a/k/a Van,
Defendant - Appellant.
No. 03-4945
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CARLOS DEAN SCOTT, a/k/a Binky, a/k/a Bink,
Defendant - Appellant.
Appeals from the United States District Court for the Southern
District of West Virginia, at Bluefield. David A. Faber, Chief
District Judge. (CR-02-241)
Submitted: May 13, 2005 Decided: July 12, 2005
Before NIEMEYER, MICHAEL, and SHEDD, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Dennis H. Curry, Spencer, West Virginia; Troy N. Giatras, Mark L.
French, GIATRAS & WEBB, Charleston, West Virginia, for Appellants.
Kasey Warner, United States Attorney, John L. File, Assistant
United States Attorney, Beckley, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
- 2 -
PER CURIAM:
Kevin Ivan Anthony (Appeal No. 03-4909) and Carlos Dean
Scott (Appeal No. 03-4945) appeal from their judgments of
conviction and sentences, based on jury verdicts, finding them
guilty of one count each of conspiracy to distribute fifty grams or
more of cocaine base and a quantity of hydromorphone and
distribution of five grams or more of cocaine base, and aiding and
abetting same, in violation of 21 U.S.C. §§ 846, 841(a)(1) (2000)
and 18 U.S.C. § 2 (2000), respectively (Anthony); and one count of
conspiracy to distribute fifty grams or more of cocaine base and a
quantity of hydromorphone, and three counts of distribution of five
grams or more of cocaine base, in violation of 21 U.S.C. §§ 846,
841(a)(1) (2000) and 18 U.S.C. § 2 (2000), respectively (Scott).
Anthony and Scott appeal their convictions, alleging that the
district court: (1) clearly erred in finding that the jury
selection process in the Southern District of West Virginia did not
render Appellants’ trial unconstitutional, despite the fact that
neither the jury venire nor the jury panel contained African-
Americans; (2) erred in failing to order a sua sponte mistrial or
other corrective action based upon an ex parte communication
between the Assistant United States Attorney and a witness’s
supervising probation officer during trial; and (3) abused its
discretion in denying Anthony’s proposed jury instruction on aiding
and abetting. They also allege plain error relative to their
- 3 -
sentences under United States v. Booker, 125 S. Ct. 738 (2005),
because the district court calculated drug weights for relevant
conduct purposes used to determine their base offense levels, and
applied a two-level enhancement to their base offense levels
pursuant to U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) (2003).
Anthony also challenges the district court’s failure to consider
Anthony’s request to be considered as a minor role participant
pursuant to USSG § 3B1.2. In accordance with our discussion below,
we affirm Anthony’s and Scott’s convictions, but vacate their
sentences and remand to the district court for resentencing.
I. Conviction Issues
The first challenge Appellants advance relative to their
convictions is that the jury venire was unconstitutional because it
systematically excluded African-Americans and other minorities from
jury service.1 When there were no minorities on the forty-seven
person venire, Appellants made a timely objection and evidence was
taken from Sam Kay, the Clerk of Courts for the Southern District
of West Virginia and Cassandra Staples, Deputy Clerk in Charge of
the Beckley Division of the Southern District of West Virginia
during an in camera hearing on the issue.
Kay testified that the jury selection plan used in this
case was that used for all jury trials in the Southern District of
West Virginia. The Clerk’s office obtains names of prospective
1
Both Anthony and Scott are African-American.
- 4 -
jurors from the voter registration list and the list of drivers
holding a valid West Virginia driver’s license. The driver’s
license list was added in 1997 as a “direct effort” to include more
African-Americans. Kay testified that the persons selected as
potential jurors are chosen at random without reference to their
race. He further testified that approximately 2.2 percent of the
qualified jurors in the division are African-American, and
approximately 3.2 percent of the state population is African-
American. Staples testified that the venire called for this trial
came from a group of 188, of which one was African-American, and
that the jurors chosen for the venire were chosen at random without
regard to race.2 The district court determined that Appellants
failed to establish the third prong of the test set forth in Duren
v. Missouri, 439 U.S. 357 (1979), i.e. they did not establish that
the under-representation of minorities, and of African-Americans in
particular, was due to a “systematic exclusion of the group in the
jury-selection process.” Duren, 439 U.S. at 364.
Appellants assert, for the first time on appeal, that the
jury selection process systematically excludes African-Americans
because it excludes from service felons and all single parents
whose children are under the age of ten. To the extent these
2
The district judge took judicial notice that, to the best of
its recollection, this was the first pool of its size that did not
contain any African-American individuals in the Beckley or
Bluefield divisions of the district during the eleven years the
judge had served.
- 5 -
arguments are not waived because they were not specifically
asserted first in the district court, see Muth v. United States, 1
F.3d 246, 250 (4th Cir. 1993), we find that they have no merit.
This court previously has approved the use of a voter
registration list as a vehicle to select jurors. United States v.
Lewis, 10 F.3d 1086 (4th Cir. 1993); United States v. Cecil, 836
F.2d 1431 (4th Cir. 1988). While we have not addressed the use of
the driver’s list, it has been approved by at least one of our
sister circuits. See Ramseur v. Beyer, 983 F.2d 1215 (3d Cir.
1992). Moreover, the purpose of including the driver’s license
list in this district was a direct attempt to increase the number
of African-Americans in the jury venire.
In addition, the constitutionality on various grounds of
the exclusion of felons from jury service pursuant to 28 U.S.C.
§ 1865(b)(5), has been upheld by those courts in which the issue
has been considered. See, e.g., United States v. Barry, 71 F.3d
1269, 1273-74 (7th Cir. 1995); United States v. Arce, 997 F.2d
1123, 1127 (5th Cir. 1993); United States v. Greene, 995 F.2d 793,
796 (8th Cir. 1993); United States v. Foxworth, 599 F.2d 1, 4 (1st
Cir. 1979); United States v. Test, 550 F.2d 577, 594 (10th Cir.
1976) (en banc).
Finally, the jury plan at issue states that single
parents with children under the age of ten “whose health and/or
safety would be jeopardized by [the individual’s] absence for jury
- 6 -
service” may be excused upon the individual’s request. This
provision is not an outright exclusion, and does not establish an
inherent or systematic exclusion of African-Americans pursuant to
Duren. See, e.g., United States v. Eskew, 460 F.2d 1028 (9th Cir.
1972) (upholding similar provision). Accordingly, we agree with
the district court’s determination that the jury venire in
Appellants’ case was not unconstitutional.
Appellants also assert prejudice based on a communication
between the Assistant United States Attorney and the United States
Probation Officer who supervised government witness O.T. Scott.
Specifically, on cross-examination, Scott’s drug use while under
the supervision of the probation office became a subject of inquiry
by the defense. The Assistant United States Attorney asked the
probation officer whether Scott had tested positive for drug use
while on bond awaiting sentencing, and the probation officer
responded that Scott had been subjected to urinalysis while under
supervision and that he had had no positive tests except for
prescription medication. There is no indication in the record, nor
do Appellants assert, that the jury was aware of the communication.
Appellants assert that the information regarding Scott’s
drug use while on bond was Brady3 or Giglio4 material, which should
have been produced to Appellants prior to trial. They further
3
Brady v. Maryland, 373 U.S. 83, 87 (1963).
4
Giglio v. United States, 405 U.S. 150 (1972).
- 7 -
assert that the actions of the Assistant United States Attorney in
asking the question of the probation officer, and the probation
officer’s action in responding to the question, demonstrate
collusion between the two agencies and an agreement that the
probation officer would assist the government in convicting
Appellants. They seek a new trial.
We find Appellants’ claim to be without merit. First,
because Appellants failed to ask for a mistrial in the district
court, we review for plain error their present claim that the
district court should have granted a sua sponte mistrial on the
basis of the contact between the government and the probation
officer. See United States v. Olano, 507 U.S. 725, 731-32 (1993).
We find no prejudice shown on this record such as would seriously
affect the fairness, integrity, or reputation of the judicial
proceedings. Id. There has been no demonstration whatsoever by
Appellants that the communication affected their rights at all,
particularly given that the jury was unaware of the communication.
The defense itself raised the subject issue on cross-examination,
thus opening the door for the redirect examination by the Assistant
United States Attorney. In addition, the documentation relating to
the witness’s drug testing properly was withheld from disclosure by
the district court because it did not contain exculpatory
information or information otherwise beneficial to the defense, and
therefore its production was not required under Brady or Giglio.
- 8 -
Hence, there was no error by the district court relative to the
subject communication.
The final conviction-related issue raised on appeal is
Anthony’s assertion that the district court erred in excluding his
proposed jury instruction regarding his affirmative duty to act
when in the presence of illegal activity. Anthony sought a “clear
statement” by the district court to the effect that his mere
presence as a driver cannot be enough to convict him as an aider
and abettor.
While the district court initially refused the
instruction as being contrary to law, it later held that the
standard aiding and abetting instruction adequately covered the
issue. We find that the instruction given by the district court
accurately stated the law on aiding and abetting. See United
States v. Burgos, 94 F.3d 849, 873 (4th Cir. 1996) (en banc). In
addition, the instruction given included the “clear statement”
Anthony sought that the government had to prove that he had an
active role in the distribution to be convicted as an aider and
abettor, and that being a mere bystander was insufficient to
establish criminal culpability. Anthony cannot show prejudice
because the instruction given reflects the requisite intent
necessary for a conviction. Hence, we find no abuse of discretion
in the district court’s refusal of Anthony’s proffered jury
- 9 -
instruction. See United States v. Ruhe, 191 F.3d 376, 385 (4th
Cir. 1999).
II. Sentencing Issues
Anthony and Scott claim error with regard to the district
court’s calculation of drug weights attributable to them in
calculating their base offense levels, in the two-point enhancement
applied by the district court pursuant to USSG § 2D1.1(b)(1), and
to their respective sentences for possession of a firearm. Anthony
also asserts error by the district court in failing to consider him
a minor role participant and thus refusing to decrease his offense
level pursuant to USSG § 3B1.2. Both Anthony and Scott have raised
the constitutionality of their sentences based on Booker and United
States v. Hughes, 401 F.3d 540 (4th Cir. 2005), asserting plain
error by the district court in determining their sentences based on
judicially-determined facts found by a preponderance of the
evidence and under a mandatory guidelines sentencing scheme. The
Government has responded, stating that it does not oppose
resentencing in these cases because the district court’s mandatory
application of the guidelines is error in light of the subsequently
decided legal authority.
Here, the district court sentenced Anthony and Scott on
October 29, 2003, under the mandatory guidelines scheme in place
prior to the Supreme Court’s decision in Booker, and prior to this
- 10 -
Court’s decision in Hughes.5 The drug conspiracy statute under
which both Anthony and Scott were convicted, 21 U.S.C. § 846,
carries a prescribed sentence of ten years to life. 21 U.S.C.
§ 841(b)(1)(A)(IV)(iii). The drug distribution statute under which
they were both convicted, 21 U.S.C. § 841(a)(1), carries a
prescribed sentence of five to forty years. 21 U.S.C.
§ 841(b)(1)(B)(IV)(iii). In preparing the presentence reports, the
probation officer concluded that a base offense level of thirty-
eight was proper both for Anthony and for Scott, based on a
quantity of twenty pounds of cocaine base, pursuant to USSG
§§ 2D1.1(a)(3), 2D1.1(c).6 The probation officer’s determination
of the amount of cocaine base was based on the offenses of
conviction, extensive grand jury testimony, debriefings and
codefendant interviews, trial evidence and testimony, and the
representations of Alfred Rucker. In addition, the probation
officer added a two-point enhancement to the base offense level of
both Anthony and Scott, pursuant to USSG § 2D1.1(b)(1), for
5
Just as we noted in Hughes, "[w]e of course offer no
criticism of the district judge, who followed the law and procedure
in effect at the time" of Anthony’s and Scott's resentencing. 401
F.3d at 545 n.4; see generally Johnson v. United States, 520 U.S.
461, 468 (1997) (stating that an error is "plain” if "the law at
the time of trial was settled and clearly contrary to the law at
the time of appeal").
6
The amount of cocaine base, converted into kilograms for
purposes of the guidelines calculation, yielded 9.072 kilograms,
and a base offense level for an offense involving 1.5 kilograms or
more of cocaine base.
- 11 -
possession of a firearm. Finally, the probation officer applied a
further two-point enhancement to Scott’s sentence, pursuant to USSG
§ 3B1.1(c), for being a leader and organizer of the conspiracy.
Anthony’s total offense level was forty, and Scott’s was forty-two.
The probation officer then assigned a criminal history
category to Anthony of II, and a criminal history category to Scott
of VI,7 based on his career offender status pursuant to USSG
§ 4B1.1. The resultant guideline range for Anthony was set at 324
to 405 months. The resultant guideline range for Scott was set at
360 months to life.
Based solely on the indictment, i.e. facts found by the
jury, the drug amounts would yield a base offense level of thirty-
two for both Anthony and for Scott, with a resultant unenhanced
guideline range of 135-168 for Anthony and 188-255 for Scott.
Thus, the higher offense level resulted in a substantial increase
in the guideline ranges for both Anthony and Scott.
Ultimately, the district court sentenced Anthony to 324
months’ imprisonment on each count (the low end of the assigned
guideline range), to run concurrently, a five year term of
supervised release, and ordered payment of a $5000 fine and a $200
special assessment. The district court sentenced Scott to 360
months’ imprisonment on each count (the low end of the assigned
7
The district court adjusted Scott’s criminal history category
at trial to V, but the adjustment did not change the applicable
guideline range.
- 12 -
guideline range), to run concurrently, a five year term of
supervised release, and ordered payment of a $5000 fine and a $400
special assessment. Hence, the district court’s findings at
sentencing relative to the base offense level and the enhancements,
determined by a preponderance of the evidence, resulted in a
substantially increased sentence for both Anthony and Scott.
In Booker, the Supreme Court applied the decision in
Blakely v. Washington, 124 S. Ct. 2531 (2004), to the federal
sentencing guidelines and concluded that the Sixth Amendment is
violated when a district court imposes a sentence under the
Sentencing Guidelines that is greater than a sentence based solely
upon facts found by the jury. Booker, 125 S. Ct. at 752-56. The
Court remedied the constitutional violation by severing two
statutory provisions, 18 U.S.C. § 3553(b)(1) (West Supp. 2004)
(requiring sentencing court to impose a sentence within the
applicable guideline range), and 18 U.S.C.A. § 3742(e) (West 2000
& Supp. 2004) (setting forth appellate standards of review for
guideline issues), thereby making the guidelines advisory. Hughes,
401 F.3d at 546 (citing Booker, 125 S. Ct. at 757 (Breyer, J.,
opinion of the Court)).
After Booker, courts must calculate the appropriate
guideline range, consider the range in conjunction with other
relevant factors under the guidelines and 18 U.S.C.A. § 3553(a),
and impose a sentence. If a court imposes a sentence outside the
- 13 -
guideline range, the district court must state its reasons for
doing so. Hughes, 401 F.3d at 546. This remedial scheme applies
to any sentence imposed under the mandatory sentencing guidelines,
regardless of whether or not the sentence violates the Sixth
Amendment. Id. at 547 (citing Booker, 125 S. Ct. at 769 (Breyer,
J., opinion of the Court)).
In this case, as in Hughes, the district court sentenced
Anthony and Scott by applying the guidelines as a mandatory
determinant in sentencing and based upon facts not authorized by
the jury’s findings. In light of the change in the law, we
conclude that the district court erred in determining Appellants’
sentences, that the error was plain and affected Appellants’
substantial rights, and that we should exercise our discretion to
notice the error. We therefore vacate Anthony’s and Scott’s
9
sentences and remand for resentencing.8
8
Although the Sentencing Guidelines are no longer mandatory,
Booker makes clear that a sentencing court must still “consult
[the] Guidelines and take them into account when sentencing.” 125
S. Ct. at 767. On remand, the district court should first
determine the appropriate sentencing range under the Guidelines,
making all factual findings appropriate for that determination.
Hughes, 401 F.3d at 546. The court should consider this sentencing
range along with the other factors described in 18 U.S.C.
§ 3553(a), and then impose a sentence. Id. If that sentence falls
outside the Guidelines range, the court should explain its reasons
for the departure as required by 18 U.S.C. § 3553(c)(2). Id. The
sentence must be “within the statutorily prescribed range and . . .
reasonable.” Id. at 547.
9
We decline to address the propriety of the district court’s
refusal to apply USSG § 3B1.2 to Anthony’s sentence, in light of
the disposition of this appeal. Id. at 556 n.15.
- 14 -
Accordingly, although we affirm Anthony’s and Scott’s
convictions, we vacate their sentences and remand to the district
court for resentencing in accordance with Booker and Hughes. 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,
VACATED IN PART,
AND REMANDED
- 15 -